Federal Register Vol. 81, No.109,

Your written comments on the proposed rule should be specific, should be confined to issues pertinent to the proposed rule, and should explain the reason(s) for any change you recommend or proposal(s) you oppose. Where possible, you should reference the specific section or paragraph of the proposal you are addressing. We invite specific comments on various aspects of the rule as described later in this preamble. We also invite comments from State agencies, sponsors, and providers on the administrative cost of compliance with any of the provisions in the rule. Additionally, we invite comments on the potential impact of the changes in the proposed rule on Program access, particularly in areas through the country where there are a limited number of providers available to operate the Programs. Comments received after the close of the comment period (refer to DATES) will not be considered or included in the Administrative Record for the final rule.

We also invite your comments on how to make these proposed regulations easier to understand, including answers to questions such as the following:

(1) Are the requirements in the proposed regulations clearly stated?

(2) Does the rule contain technical language or jargon that interferes with its clarity?

(3) Does the format of the rule (e.g., grouping and order of sections, use of headings, and paragraphing) make it clearer or less clear?

(4) Would the rule be easier to understand if it was divided into more (but shorter) sections?

(5) Is the description of the rule in the preamble section entitled “Background and Discussion of the Proposed Rule” helpful in understanding the rule? How could this description be more helpful in making the rule easier to understand?

This proposed rule would codify several provisions of the Healthy, Hunger-Free Kids Act of 2010 (HHFKA), Public Law 111-296, that affect the integrity of the Child Nutrition Programs, including the National School Lunch Program (NSLP), the Special Milk Program for Children (SMP), the School Breakfast Program (SBP), the Summer Food Service Program (SFSP), the Child and Adult Care Food Program (CACFP), and State Administrative Expense Funds (SAE). In addition, this rule would incorporate policy changes resulting from several findings from recently conducted targeted management evaluations of the CACFP by the Food and Nutrition Service (FNS), and USDA Office of Inspector General audit findings, as well as other miscellaneous revisions to the regulations. The rule is intended to improve the integrity of all Child Nutrition Programs.

USDA anticipates that the provisions under this proposed rule would be implemented 90 days following publication of the final rule, with the exception of those related to CACFP audit funds and those related to assessments against State agencies and program operators. The provision granting eligible State agencies additional CACFP audit funds will be implemented upon publication of the final rule. Because States and school districts have been working diligently to implement the provisions of the Healthy, Hunger-Free Kids Act, USDA anticipates that the provision establishing criteria for assessments against State agencies and program operators would be implemented one school year following publication of the final rule to provide entities the time they need to complete successful implementation.

The major provisions addressed in this rule are:

Section 303 of the HHFKA: Fines for Violating Program Requirements—Section 303 of the HHFKA requires the Secretary to establish criteria for the imposition of fines in the Child Nutrition Programs, referred to as assessments in this proposed rule. An assessment refers to a required payment of funds from non-Federal sources. Under section 303, the Secretary or a State agency may establish an assessment against any school food authority or school administering the Child Nutrition Programs if the Secretary or the State agency determines that the school or school food authority failed to correct severe mismanagement of any program, failed to correct repeated violations of program requirements, or disregarded a requirement of which they have been informed. Section 303 also provides the Secretary the authority to establish an assessment against any State agency if the Secretary determines the State agency has failed to correct severe mismanagement of any program, failed to correct repeated violations of program requirements, or disregarded a requirement of which they have been informed.

Section 322 of the HHFKA: SFSP Disqualification—Section 322 requires the Secretary to establish procedures for the termination and disqualification of entities participating in the SFSP, to maintain a list of entities that have been terminated or disqualified from SFSP, and to make this list available to States for use in approving or renewing service institutions' applications for SFSP participation.

Section 331(b) of the HHFKA: State Agency/Sponsor Review Requirements in the CACFP—Section 331(b) requires the Secretary to develop for State agencies additional criteria or priorities for use in choosing institutions for review, including institutions at risk of having serious management problems and institutions conducting activities other than the CACFP.

Section 332 of the HHFKA: State Liability for Payments to Aggrieved Child Care Institutions—Section 332 requires State agencies to pay all valid claims for reimbursement, from non-Federal sources, if the required timeframes for a fair hearing are not met.

Section 335 of the HHFKA: CACFP Audit Funding—Section 335 allows the Department to increase the amount of audit funds made available to a CACFP State agency if the State agency demonstrates it can effectively use the funds to improve Program management in accordance with criteria established by the Department.

Section 362 of the HHFKA: Disqualified Schools, Institutions, and Individuals—Section 362 makes any school, institution, service institution, facility, or individual that has been terminated from any Child Nutrition Program and who is on the CACFP or SFSP National Disqualified List ineligible for participation in or administration of any Child Nutrition Program.

While all entities—school food authorities, schools, institutions, sponsors sites, sponsoring organizations, day care centers and State agencies—administering Child Nutrition Programs will be affected by this rulemaking, the economic effect is not expected to be significant as explained below.

The comment period for this proposed rule is extended until July 7, 2016 to provide additional time for interested parties to review and submit comments on this proposed rule.

In this rule, the Bureau of Industry and Security (BIS) proposes to continue to advance the President's directives in the Retrospective Regulatory Review Initiative to streamline regulations, reduce unnecessary regulatory burdens on the public and modernize export controls. (See “Improving Regulatory Review” (Executive Order 13563 of January 18, 2011). Consistent with these directives and objectives, in this rule, BIS proposes to remove the Special Iraq Reconstruction License (SIRL) from the Export Administration Regulations (EAR).

BIS established the SIRL in 2004 (69 FR 46070, July 30, 2004) to supplement options to facilitate exports and reexports to Iraq and transfers within Iraq of items in furtherance of civil reconstruction and other projects in Iraq funded by specified entities, including the United States government. At the time of its establishment, SIRL was intended to benefit the public by allowing for faster processing times as compared to individual license applications, and longer license validity periods, which would extend to the completion or discontinuation of the associated reconstruction project (in contrast, individual license applications generally only had a two-year validity period). However, exporters supplying items used in support of the civil reconstruction efforts in Iraq have not relied on the SIRL to advance those efforts, apparently because of its complexity and narrowness.

Since 2004, BIS has processed only three applications for the SIRL, and granted only one approval, as compared to over 400 approved individual license applications for items to Iraq between 2012 and 2015. A SIRL applicant must provide details regarding the items to be exported or reexported to or transferred within Iraq, a narrative statement to identify all parties to the transaction, and a description of the reconstruction project that formed the basis of the transaction. In addition, the applicant must provide separate written statements from all agencies providing funding, and certification that all parties to the transaction will obtain licenses prior to transferring the items on the license application within Iraq or reexporting the items to end users not authorized under the SIRL. SIRL holders must submit reports when the Iraq project is discontinued or is completed and must get approval from BIS to make specified changes to the respective SIRL. These requirements are numerous compared to the individual license application process or the use of other authorizations such as eligible license exceptions, resulting in exporters choosing to apply for or use individual licenses and other authorizations under the EAR to ship items to Iraq instead of the SIRL.

In addition, with the implementation of updates to the EAR, the relative advantages of the SIRL have been offset by changes to individual licenses and other types of authorizations offered by BIS that provide less complex alternatives to the SIRL. For example, in addition to streamlined procedures for submitting license applications and improved processing times, BIS now issues individual licenses with a four-year validity period, with agency consideration of requests to extend the validity period. Similarly, most individual licenses now do not include a requirement for reports on the authorized items exported or reexported. Additionally, license exceptions such as License Exception Temporary imports, exports, and reexports, and transfers (in-country) (TMP) (Section 740.9 of the EAR) have been expanded. (TMP now includes authorizations for temporary exports to a U.S. person's foreign subsidiary, affiliates, or facility abroad outside of Country Group B. Additionally, BIS will, upon request, authorize the retention of items abroad that were exported under License Exception TMP beyond one year and up to a total of four years.)

Thus, the SIRL has proven not to be useful. Its removal from the EAR is consistent with and would advance regulatory initiatives priorities. As part of the removal, this rule also would make conforming changes in the EAR.

Although the Export Administration Act expired on August 20, 2001, the President, through Executive Order 13222 of August 17, 2001, 3 CFR, 2001 Comp., p. 783 (2002), as amended by Executive Order 13637 of March 8, 2013, 78 FR 16129 (March 13, 2013) and as extended by the Notice of August 7, 2015, 80 FR 48233 (August 11, 2015), has continued the Export Administration Regulations in effect under the International Emergency Economic Powers Act. BIS continues to carry out the provisions of the Export Administration Act, as appropriate and to the extent permitted by law, pursuant to Executive Order 13222 as amended by Executive Order 13637.

1. Executive Orders 13563 and 12866 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. This rule has been determined to be not significant for purposes of Executive Order 12866.

2. This rule amends collections previously approved by the Office of Management and Budget (OMB) under Control Numbers 0694-0088, “Simplified Network Application Processing + System (SNAP+) and the Multi-Purpose Application,” which carries a burden hour estimate of 43.8 minutes to prepare and submit form BIS-748; and 0694-0137, “License Exemptions and Exclusions.”

The total burden hours associated with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) (PRA) and the aforementioned OMB Control Numbers would be expected to decrease as a result of this proposed removal of part 747 of the EAR and related provisions if the rule is eventually issued in final form, thereby reducing burden hours associated with approved collections related to the EAR.

Public comment is sought regarding: whether the collection of information, for the provisions BIS proposes to remove, is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; the accuracy of the burden estimate; ways to enhance the quality, utility, and clarity of the information to be collected; and ways to minimize the burden of the collection of information, including through the use of automated collection techniques or other forms of information technology. Send comments on these or any other aspects of the collection of information to Regulatory Policy Division, Bureau of Industry and Security, U.S. Department of Commerce at the ADDRESSES above, and email to OMB at [email protected], or fax to (202) 395-7285.

Notwithstanding any other provision of the law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB Control Number.

3. This rule does not contain policies with Federalism implications as that term is defined under Executive Order 13132.

4. Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq.). The Chief Counsel for Regulation of the Department of Commerce has certified to the Chief Counsel for Advocacy of the Small Business Administration that this proposed rule, if adopted in final form, would not have a significant economic impact on a substantial number of small entities.

Economic Impact. BIS believes this rule would have no economic impact, because, although this rule would eliminate the availability of the SIRL, entities are not using the SIRL. Moreover, they could still obtain individual validated licenses from BIS to export their product(s). The individual validated licenses that BIS issues are generally less burdensome and require fewer compliance/reporting measures than the measures required for a SIRL. For example, a SIRL applicant must provide a narrative statement to identify all parties to the transaction, and a description of the reconstruction project. In addition, the applicant must provide separate written statements for all participating agencies and certification that all parties to the transaction will obtain licenses prior to transferring items within Iraq or reexporting items outside of Iraq for end users not authorized under the SIRL. SIRL holders must submit reports when the Iraq project is discontinued or is completed and must get prior approval for any changes to their SIRL. Although these requirements may be included as conditions on an individual validated license, BIS's license applications review process for individual validated licenses includes other methods, less burdensome on the exporter, to vet the bona fides of parties to the proposed transaction and to verify compliance. Also, impacted entities would have the convenience of applying for a license via the Simplified Network Application Process-Redesign (SNAP-R) System, an updated system for electronically filing export and reexport license applications, which is not available for the submission of SIRL applications. Finally, the historical lack of usage of the SIRL does not warrant maintaining such a complex option.

Number of Small Entities. Since the SIRL's introduction in 2004, there have been only three applications for it, with only one application approved. Due to the nature of the SIRL and the complexity of its requirements, BIS expects that past applicants would be considered large entities under the Small Business Administration's size standards. However, BIS does not collect data on the size or annual revenue of these entities, and thus some of these entities may be considered small under the SBA size standards. Also, although small entities likely would not be the direct or the primary users of the SIRL, BIS acknowledges that small entities may have been parties to SIRL transactions. To assist in the evaluation of a significant economic impact of this rule on a substantial number of small entities, BIS welcomes comments to explain how and to what extent your business or organization could be affected, if your business or organization is a small entity and if adoption of any of the amendments discussed in this proposed rulemaking could have a significant financial impact on your operations.

Accordingly, parts 730, 747, 748 and 762 of the Export Administration Regulations (15 CFR parts 730-774) are amended as follows:

I. Background

The Commission's NPRM for Regulation Automated Trading was published in the Federal Register on December 17, 2015 (80 FR 78824). The NPRM was open for a 90-day comment period, from December 17, 2015 through March 16, 2016. The comment file for Regulation AT is available at: http://comments.cftc.gov/PublicComments/CommentList.aspx?id=1646.

The staff roundtable 1 on June 10, 2016 will address the following items: (1) potential amendments to the proposed definition of “Direct Electronic Access” (DEA), consistent with and in furtherance of Regulation AT's proposed registration regime; (2) potential quantitative measures to establish the population of AT Persons; (3) a potential alternative to Regulation AT's requirements for AT Persons in proposed §§ 1.80, 1.81, and 1.83(a), which alternative could require that FCMs impose specific requirements on their customers and perform due diligence regarding customers' compliance; (4) AT Persons' compliance with Regulation AT's proposed requirements for Algorithmic Trading and Algorithmic Trading systems when using third-party algorithms or systems; and (5) source code access and retention.

The staff roundtable will be open to the public with seating on a first-come, first-served basis, and will take place in the Conference Center at the Commission's headquarters at Three Lafayette Centre, 1155 21st Street, NW., Washington, DC. Members of the public may also listen by telephone. Call-in participants should be prepared to provide their first name, last name, and affiliation. The information for the conference call may be found on the CFTC's Web site at www.cftc.gov.

In conjunction with the staff roundtable on June 10, the Commission is also reopening the comment period for specific elements of Regulation AT. The comment period will be reopened as of June 10, 2016, and will close on June 24, 2016. The additional comment period is intended for public comments solely on the specific items in the agenda for the staff roundtable and that arise during the roundtable. Members of the public may submit comment letters, identified by RIN 3038-AD52, by any of the methods indicated in the ADDRESSES section of this notice. Each section of a comment letter should indicate the roundtable agenda item that such section addresses.

Please submit comments by only one method. All comments should be submitted in English or accompanied by an English translation. Comments will be posted as received to http://www.cftc.gov. You should submit only information that you wish to make available publicly. If you wish the Commission to consider information that may be exempt from disclosure under the Freedom of Information Act (FOIA), a petition for confidential treatment of the exempt information may be submitted according to the procedures established in 17 CFR 145.9. The Commission reserves the right, but shall have no obligation, to review, prescreen, filter, redact, refuse, or remove any or all of your submission from http://www.cftc.gov that it may deem to be inappropriate for publication, such as obscene language. All submissions that have been redacted or removed that contain comments on the merits of the rulemaking will be retained in the public comment file and will be considered as required under the Administrative Procedure Act and other applicable laws, and may be accessible under FOIA.

Posting of Public Comments

Please note that all comments received are considered part of the public record and made available for public inspection online at www.regulations.gov. Such information includes personal identifying information (such as your name, address, etc.) voluntarily submitted by the commenter.

If you want to submit personal identifying information (such as your name, address, etc.) as part of your comment, but do not want it to be posted online, you must include the phrase “PERSONAL IDENTIFYING INFORMATION” in the first paragraph of your comment. You must also locate all the personal identifying information you do not want posted online in the first paragraph of your comment and identify what information you want redacted.

If you want to submit confidential business information as part of your comment but do not want it to be posted online, you must include the phrase “CONFIDENTIAL BUSINESS INFORMATION” in the first paragraph of your comment. You must also prominently identify confidential business information to be redacted within the comment. If a comment contains so much confidential business information that it cannot be effectively redacted, all or part of that comment may not be posted on www.regulations.gov.

Personal identifying information identified and located as set forth above will be placed in the agency's public docket file, but not posted online. Confidential business information identified and located as set forth above will not be placed in the public docket file. If you wish to inspect the agency's public docket file in person by appointment, please see the FOR FURTHER INFORMATION CONTACT paragraph.

The Bureau published a proposed rule revising all of the regulations in 28 CFR Subpart G on December 21, 2006 (71 FR 76619). We also published an interim rule making a technical change to the regulations on February 28, 2013 (78 FR 13478). Subsequently, we published another interim rule on December 5, 2013 (78 FR 73083), which provides that the Bureau's General Counsel will solicit the opinion of the United States Attorney in the district in which the inmate was sentenced when considering an inmate for compassionate release. It also states that the final decision is subject to the general supervision and direction of the Attorney General and Deputy Attorney General.

We now withdraw the proposed rule published in 2006 and instead propose the following changes to the regulations on compassionate release: (1) Changing the title to “Reduction in Sentence in Extraordinary and Compelling Circumstances”; (2) deleting language which indicates that the Bureau will only allow reductions in sentence for circumstances “which could not reasonably have been foreseen by the court at the time of sentencing”; and (3) modifying and adding language to clarify the ineligibility of certain inmates for reductions in sentence and the eligibility of District of Columbia Code felony inmates (D.C. Code felony inmates) for medical and geriatric release.

28 CFR part 571, subpart G, is currently entitled “Compassionate Release (Procedures for the Implementation of 18 U.S.C. 3582(c)(1)(A) and 4205(g)).” 28 CFR part 572, subpart E, is likewise entitled “Compassionate Release (Procedures for the Implementation of 4205(g)).” Title 18 of the United States Code, section 3582(c)(1)(A)(i), which authorizes these regulations, does not use the term “compassionate release.” Instead, the statute states that “the court, upon motion of the Director of the Bureau of Prisons, may reduce the term of imprisonment . . . if it finds that—(i) extraordinary and compelling reasons warrant such a reduction . . . .” [Emphasis added.]

Likewise, 18 U.S.C. 4205(g) also does not use the term “compassionate release,” instead stating that “upon motion of the Bureau of Prisons, the court may reduce any minimum term to the time the defendant has served.” [Emphasis added.] We are therefore proposing to change the title of subpart G to read “Reduction in Sentence in Extraordinary and Compelling Circumstances” to more accurately conform to the language of the statutes. We also propose to replace the phrase “compassionate release” with “reduction in sentence” where it appears in § 572.40.

Section 571.60 is a statement of purpose and scope of the subpart. It describes that, “[u]nder 18 U.S.C. 4205(g), a sentencing court, on motion of the Bureau of Prisons, may make an inmate with a minimum term sentence immediately eligible for parole by reducing the minimum term of the sentence to time served.” This regulation also states that “[u]nder 18 U.S.C. 3582(c)(1)(A), a sentencing court, on motion of the Director of the Bureau of Prisons, may reduce the term of imprisonment of an inmate sentenced under the Comprehensive Crime Control Act of 1984.”

Currently, the regulation indicates that the Bureau uses these statutes “in particularly extraordinary or compelling circumstances which could not reasonably have been foreseen by the court at the time of sentencing.” However, neither the language regarding whether the court could reasonably foresee circumstances nor a reference to such a requirement is present in either statute. The Bureau has found it problematic and untenable to attempt to determine what the court could reasonably have foreseen at the time of sentencing and to apply this restriction in deciding whether to seek a reduction in sentence under this subpart. For that reason, we propose to delete the phrase “which could not reasonably have been foreseen by the court at the time of sentencing” throughout the subpart.

Under section 11201 of the National Capital Revitalization and Self-Government Improvement Act of 1997, Pub. 105-33, 111 Stat. 71 (codified at D.C. Code § 24-101(a),(b)), the Bureau has custodial responsibility for felons sentenced pursuant to the District of Columbia Code. The Bureau also houses certain military prisoners and state prisoners in its facilities. The D.C. Code contains specific provisions that govern parole or suspension of a sentence on the basis of medical or geriatric conditions. See D.C. Code §§ 24-461 to 468. We now propose to make the following changes to clarify for inmates and the public the availability or unavailability of reductions in sentence and other forms of release to the different types of inmates in the Bureau's facilities: (1) Revising § 571.64 to include military prisoners in that section's list of inmates ineligible for reductions in sentence under the U.S. Code; and (2) adding a new paragraph (b) to § 571.60 stating that the Bureau may seek or support medical or geriatric parole or suspension of sentence for D.C. Code inmates in its custody and making it clear that the Bureau will not seek reductions in sentence for D.C. Code inmates under the U.S. Code.

Currently, § 571.64 reads as follows: “The Bureau of Prisons has no authority to initiate a request under 18 U.S.C. 4205(g) or 3582(c)(1)(A) on behalf of state prisoners housed in Bureau of Prisons facilities or D.C. Code offenders confined in federal institutions. The Bureau of Prisons cannot initiate such a motion on behalf of federal offenders who committed their offenses prior to November 1, 1987, and received non-parolable sentences.” The current language does not mention military prisoners, who are also ineligible under these provisions. We propose to revise the language of § 571.64 to add military prisoners to its list of inmates for whom the Bureau will not seek reductions in sentence. The proposed language in § 571.64 would no longer refer to D.C. Code offenders, because we propose to add a new paragraph (b) to § 571.60 that explains separately what forms of early release the Bureau will or will not seek on behalf of D.C. Code inmates.

By adding a new paragraph (b) to § 571.60, the Bureau would make it clear that D.C. Code inmates who committed their offense on or after August 5, 2000, may be eligible for medical or geriatric suspension of sentence as described in sections 24-467 and 24-468 of the D.C. Code. A D.C. Code inmate in Bureau custody who meets the eligibility criteria of the D.C. Code may request that the Bureau seek such a suspension of sentence for the inmate consistent with sections 24-467 and 24-468 of the D.C. Code. The procedures set out in sections 571.61 through 571.63 will apply to the submission of such requests by inmates, and to their consideration and decision by the Bureau, consistent with the provisions of the D.C. Code.

Section 571.60(b) also would make it clear that D.C. Code inmates who committed their offense before August 5, 2000, may be eligible for medical or geriatric parole as described in sections 24-461 through 24-465 and 24-467 of the D.C. Code. A D.C. Code inmate in Bureau custody who meets the eligibility criteria of the D.C. Code for such parole may request that the Bureau forward an application and documentation to the United States Parole Commission consistent with sections 24-464 and 24-465 of the D.C. Code.

Section 571.60(b) would also make it clear that the Bureau will not seek reductions in sentence under 18 U.S.C. 4205(g) or 3582(c)(1)(A) on behalf of D.C. Code inmates. The Bureau will consider requests from such inmates only under the conditions described in the D.C. Code for medical or geriatric parole or suspension of sentence.

In section 571.62, Approval of request, we indicate that the “Bureau of Prisons makes a motion under 18 U.S.C. 4205(g) or 3582(c)(1)(A) only after review of the request by” the Warden, the General Counsel, and either the Medical Director for medical referrals or the Assistant Director, Correctional Programs Division for non-medical referrals, and with the approval of the Director, Bureau of Prisons. We also indicate that after obtaining the opinion of either the Medical Director (or Acting Medical Director) or the Assistant Director (or Acting Assistant Director), Correctional Programs Division, the Office of General Counsel will determine if the request warrants approval.

We propose a minor change in this section and in section 571.63 to indicate that when we refer to the General Counsel, we refer to the Office of General Counsel, in order to indicate that multiple staff will be assigned review of the requests. We also make minor changes to indicate that either the Medical Director or the Acting Medical Director and either the Assistant Director, Correctional Programs Division, or the Acting Assistant Director, Correctional Programs Division, may act under this regulation. This will expedite processing of the requests in the event of possible absences of the Medical Director or Assistant Director.

We also propose to make another minor change to the phrase “particularly extraordinary or compelling” throughout the regulations. Under 18 U.S.C. 3582(c)(1)(A)(i), the court may, upon motion of the Director, grant a reduction in sentence if it finds that “extraordinary and compelling reasons warrant such a reduction . . . .” We therefore propose to change our phrase in these regulations to “extraordinary and compelling” instead of “particularly extraordinary or compelling” to conform to the language of the statute.

This regulation has been drafted and reviewed in accordance with Executive Order 12866, “Regulatory Planning and Review”, section 1(b), Principles of Regulation. The Director, Bureau of Prisons has determined that this regulation is a “significant regulatory action” under Executive Order 12866, section 3(f), and accordingly this regulation has been reviewed by the Office of Management and Budget.

This regulation will not have substantial direct effects on the States, on the relationship between the national government and the States, or on distribution of power and responsibilities among the various levels of government. Therefore, under Executive Order 13132, we determine that this regulation does not have sufficient federalism implications to warrant the preparation of a Federalism Assessment.

The Director of the Bureau of Prisons, under the Regulatory Flexibility Act (5 U.S.C. 605(b)), reviewed this regulation and certifies that it will not have a significant economic impact upon a substantial number of small entities for the following reasons: This regulation pertains to the correctional management of inmates committed to the custody of the Attorney General or the Director of the Bureau of Prisons. Its economic impact is limited to the Bureau's appropriated funds.

This regulation will not result in the expenditure by State, local and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more in any one year, and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.

This rule is not a major rule as defined by section 251 of the Small Business Regulatory Enforcement Fairness Act of 1996, 5 U.S.C. 804. This regulation will not result in an annual effect on the economy of $100,000,000 or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based companies to compete with foreign-based companies in domestic and export markets.

Under rulemaking authority vested in the Attorney General in 5 U.S.C 301; 28 U.S.C. 509, 510 and delegated to the Director, Bureau of Prisons in 28 CFR 0.96, we propose to amend 28 CFR parts 571 and 572, as follows.

On April 22, 2016, The Marsh Walk Group notified the Coast Guard that it will be conducting a fireworks display from 9:30 p.m. to 9:50 p.m. on July 4, 2016. The fireworks are to be launched from the end of the Veterans Fishing Pier in Murrells Inlet, SC. Hazards from firework displays include accidental discharge of fireworks, dangerous projectiles, and falling hot embers or other debris. The Captain of the Port Charleston (COTP) has determined that potential hazards associated with the fireworks to be used in this display would be a safety concern for anyone within a 500-yard radius of the pier.

The purpose of this rulemaking is to ensure the safety of vessels and the navigable waters within a 500-yard radius of the fireworks barge before, during, and after the scheduled event. The Coast Guard proposes this rulemaking under authority in 33 U.S.C. 1231.

The COTP proposes to establish a safety zone from 9:15 p.m. to 10 p.m. on July 4, 2016. The safety zone would cover all navigable waters within 500 yards of the Veterans pier located on the Atlantic Ocean. The duration of the zone is intended to ensure the safety of vessels and these navigable waters before, during, and after the scheduled 9:30 to 9:50 p.m. fireworks display. No vessel or person would be permitted to enter the safety zone without obtaining permission from the COTP or a designated representative. The regulatory text we are proposing appears at the end of this document.

We developed this proposed rule after considering numerous statutes and Executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive orders and we discuss First Amendment rights of protestors.

Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This NPRM has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, the NPRM has not been reviewed by the Office of Management and Budget.

This regulatory action determination is based on the size, location, duration, and time-of-day of the safety zone. Vessel traffic would be able to safely transit around this safety zone which would impact a small designated area of the Atlantic Ocean for less than 1 hour during the evening when vessel traffic is normally low. Moreover, the Coast Guard would issue a Broadcast Notice to Mariners via VHF-FM marine channel 16 about the zone, and the rule would allow vessels to seek permission to enter the zone.

The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule would not have a significant economic impact on a substantial number of small entities.

While some owners or operators of vessels intending to transit the safety zone may be small entities, for the reasons stated in section IV.A above this proposed rule would not have a significant economic impact on any vessel owner or operator.

If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (see ADDRESSES) explaining why you think it qualifies and how and to what degree this rule would economically affect it.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this proposed rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the FOR FURTHER INFORMATION CONTACT section. The Coast Guard will not retaliate against small entities that question or complain about this proposed rule or any policy or action of the Coast Guard.

This proposed rule would not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this proposed rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.

Also, this proposed rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. If you believe this proposed rule has implications for federalism or Indian tribes, please contact the person listed in the FOR FURTHER INFORMATION CONTACT section.

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this proposed rule would not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

We have analyzed this proposed rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have made a preliminary determination that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This proposed rule involves a safety zone lasting less than 1 hour that would prohibit entry within 500 yards of the Veterans Pier. Normally such actions are categorically excluded from further review under paragraph 34(g) of Figure 2-1 of Commandant Instruction M16475.lD. A preliminary environmental analysis checklist and Categorical Exclusion Determination are available in the docket where indicated under ADDRESSES. We seek any comments or information that may lead to the discovery of a significant environmental impact from this proposed rule.

The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the FOR FURTHER INFORMATION CONTACT section to coordinate protest activities so that your message can be received without jeopardizing the safety or security of people, places, or vessels.

We view public participation as essential to effective rulemaking, and will consider all comments and material received during the comment period. Your comment can help shape the outcome of this rulemaking. If you submit a comment, please include the docket number for this rulemaking, indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation.

We encourage you to submit comments through the Federal eRulemaking Portal at http://www.regulations.gov. If your material cannot be submitted using http://www.regulations.gov, contact the person in the FOR FURTHER INFORMATION CONTACT section of this document for alternate instructions.

We accept anonymous comments. All comments received will be posted without change to http://www.regulations.gov and will include any personal information you have provided. For more about privacy and the docket, you may review a Privacy Act notice regarding the Federal Docket Management System in the March 24, 2005, issue of the Federal Register (70 FR 15086).

Documents mentioned in this NPRM as being available in the docket, and all public comments, will be in our online docket at http://www.regulations.gov and can be viewed by following that Web site's instructions. Additionally, if you go to the online docket and sign up for email alerts, you will be notified when comments are posted or a final rule is published.

For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR part 165 as follows:

On April 18, 2016, the City of North Charleston notified the Coast Guard that it will be conducting a fireworks display from 9 p.m. to 10 p.m. on July 4, 2016. The fireworks are to be launched from a barge along the bank of the Cooper River at River Front Park in North Charleston, SC. Hazards from firework displays include accidental discharge of fireworks, dangerous projectiles, and falling hot embers or other debris. The Captain of the Port Charleston (COTP) has determined that potential hazards associated with the fireworks to be used in this display would be a safety concern for anyone within a 500-yard radius of the barge.

The purpose of this rulemaking is to ensure the safety of vessels and the navigable waters within a 500-yard radius of the fireworks barge before, during, and after the scheduled event. The Coast Guard proposes this rulemaking under authority in 33 U.S.C. 1231.

The COTP proposes to establish a safety zone from 8:45 p.m. to 10:15 p.m. on July 4, 2016. The safety zone would cover all navigable waters within 500 yards of the barge located at River Front Park on the Cooper River. The duration of the zone is intended to ensure the safety of vessels and these navigable waters before, during, and after the scheduled 9 p.m. to 10 p.m. fireworks display. No vessel or person would be permitted to enter the safety zone without obtaining permission from the COTP or a designated representative. The regulatory text we are proposing appears at the end of this document.

We developed this proposed rule after considering numerous statutes and Executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive orders and we discuss First Amendment rights of protestors.

Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This NPRM has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, the NPRM has not been reviewed by the Office of Management and Budget.

This regulatory action determination is based on the size, location, duration, and time-of-day of the safety zone. Vessel traffic would be able to safely transit around this safety zone which would impact a small designated area of the Cooper River for 1 hour during the evening when vessel traffic is normally low. Moreover, the Coast Guard would issue a Broadcast Notice to Mariners via VHF-FM marine channel 16 about the zone, and the rule would allow vessels to seek permission to enter the zone.

The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule would not have a significant economic impact on a substantial number of small entities.

While some owners or operators of vessels intending to transit the safety zone may be small entities, for the reasons stated in section IV.A above this proposed rule would not have a significant economic impact on any vessel owner or operator.

If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (see ADDRESSES) explaining why you think it qualifies and how and to what degree this rule would economically affect it.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this proposed rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the FOR FURTHER INFORMATION CONTACT section. The Coast Guard will not retaliate against small entities that question or complain about this proposed rule or any policy or action of the Coast Guard.

This proposed rule would not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this proposed rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.

Also, this proposed rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. If you believe this proposed rule has implications for federalism or Indian tribes, please contact the person listed in the FOR FURTHER INFORMATION CONTACT section.

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this proposed rule would not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

We have analyzed this proposed rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have made a preliminary determination that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This proposed rule involves a safety zone lasting 1 hour that would prohibit entry within 500 yards of the fireworks barge. Normally such actions are categorically excluded from further review under paragraph 34(g) of Figure 2-1 of Commandant Instruction M16475.lD. A preliminary environmental analysis checklist and Categorical Exclusion Determination are available in the docket where indicated under ADDRESSES. We seek any comments or information that may lead to the discovery of a significant environmental impact from this proposed rule.

The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the FOR FURTHER INFORMATION CONTACT section to coordinate protest activities so that your message can be received without jeopardizing the safety or security of people, places, or vessels.

We view public participation as essential to effective rulemaking, and will consider all comments and material received during the comment period. Your comment can help shape the outcome of this rulemaking. If you submit a comment, please include the docket number for this rulemaking, indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation.

We encourage you to submit comments through the Federal eRulemaking Portal at http://www.regulations.gov. If your material cannot be submitted using http://www.regulations.gov, contact the person in the FOR FURTHER INFORMATION CONTACT section of this document for alternate instructions.

We accept anonymous comments. All comments received will be posted without change to http://www.regulations.gov and will include any personal information you have provided. For more about privacy and the docket, you may review a Privacy Act notice regarding the Federal Docket Management System in the March 24, 2005, issue of the Federal Register (70 FR 15086).

Documents mentioned in this NPRM as being available in the docket, and all public comments, will be in our online docket at http://www.regulations.gov and can be viewed by following that Web site's instructions. Additionally, if you go to the online docket and sign up for email alerts, you will be notified when comments are posted or a final rule is published.

For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR part 165 as follows:

On April 14, 2016, the North Myrtle Beach Chamber of Commerce notified the Coast Guard that it will be conducting a fireworks display from 9:30 to 9:55 p.m. on July 4, 2016. The fireworks are to be launched from the end of the Cherry Grove Fishing Pier in Myrtle Beach, SC. Hazards from firework displays include accidental discharge of fireworks, dangerous projectiles, and falling hot embers or other debris. The Captain of the Port Charleston (COTP) has determined that potential hazards associated with the fireworks to be used in this display would be a safety concern for anyone within a 500-yard radius of the pier.

The purpose of this rulemaking is to ensure the safety of vessels and the navigable waters within a 500-yard radius of the fireworks barge before, during, and after the scheduled event. The Coast Guard proposes this rulemaking under authority in 33 U.S.C. 1231.

The COTP proposes to establish a safety zone from 9:15 p.m. to 10 p.m. on July 4, 2016. The safety zone would cover all navigable waters within 500 yards of the Cherry Grove pier located on the Atlantic Ocean. The duration of the zone is intended to ensure the safety of vessels and these navigable waters before, during, and after the scheduled 9:30 to 9:55 p.m. fireworks display. No vessel or person would be permitted to enter the safety zone without obtaining permission from the COTP or a designated representative. The regulatory text we are proposing appears at the end of this document.

We developed this proposed rule after considering numerous statutes and Executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive orders and we discuss First Amendment rights of protestors.

Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This NPRM has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, the NPRM has not been reviewed by the Office of Management and Budget.

This regulatory action determination is based on the size, location, duration, and time-of-day of the safety zone. Vessel traffic would be able to safely transit around this safety zone which would impact a small designated area of the Atlantic Ocean for less than 1 hour during the evening when vessel traffic is normally low. Moreover, the Coast Guard would issue a Broadcast Notice to Mariners via VHF-FM marine channel 16 about the zone, and the rule would allow vessels to seek permission to enter the zone.

The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule would not have a significant economic impact on a substantial number of small entities.

While some owners or operators of vessels intending to transit the safety zone may be small entities, for the reasons stated in section IV.A above this proposed rule would not have a significant economic impact on any vessel owner or operator.

If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (see ADDRESSES) explaining why you think it qualifies and how and to what degree this rule would economically affect it.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this proposed rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the FOR FURTHER INFORMATION CONTACT section. The Coast Guard will not retaliate against small entities that question or complain about this proposed rule or any policy or action of the Coast Guard.

This proposed rule would not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this proposed rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.

Also, this proposed rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. If you believe this proposed rule has implications for federalism or Indian tribes, please contact the person listed in the FOR FURTHER INFORMATION CONTACT section.

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this proposed rule would not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

We have analyzed this proposed rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have made a preliminary determination that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This proposed rule involves a safety zone lasting less than 1 hour that would prohibit entry within 500 yards of the Cherry Grove Pier. Normally such actions are categorically excluded from further review under paragraph 34(g) of Figure 2-1 of Commandant Instruction M16475.lD. A preliminary environmental analysis checklist and Categorical Exclusion Determination are available in the docket where indicated under ADDRESSES. We seek any comments or information that may lead to the discovery of a significant environmental impact from this proposed rule.

The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the FOR FURTHER INFORMATION CONTACT section to coordinate protest activities so that your message can be received without jeopardizing the safety or security of people, places, or vessels.

We view public participation as essential to effective rulemaking, and will consider all comments and material received during the comment period. Your comment can help shape the outcome of this rulemaking. If you submit a comment, please include the docket number for this rulemaking, indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation.

We encourage you to submit comments through the Federal eRulemaking Portal at http://www.regulations.gov. If your material cannot be submitted using http://www.regulations.gov, contact the person in the FOR FURTHER INFORMATION CONTACT section of this document for alternate instructions.

We accept anonymous comments. All comments received will be posted without change to http://www.regulations.gov and will include any personal information you have provided. For more about privacy and the docket, you may review a Privacy Act notice regarding the Federal Docket Management System in the March 24, 2005, issue of the Federal Register (70 FR 15086).

Documents mentioned in this NPRM as being available in the docket, and all public comments, will be in our online docket at http://www.regulations.gov and can be viewed by following that Web site's instructions. Additionally, if you go to the online docket and sign up for email alerts, you will be notified when comments are posted or a final rule is published.

For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR part 165 as follows:

I. Table of Abbreviations CFR Code of Federal Regulations DHS Department of Homeland Security E.O. Executive Order FR Federal Register NPRM Notice of Proposed Rulemaking Pub. L. Public Law § Section U.S.C. United States Code COTP Captain of the Port II. Background, Purpose, and Legal Basis

On March 17, 2016, Kathleen Wilson notified the Coast Guard that she will be sponsoring the Swim Around Charleston from 9 a.m. to 3:30 p.m. on September 25, 2016. The legal basis for the proposed rule is the Coast Guard's Authority to establish a safety zone: 33 U.S.C. 1231. The purpose of the proposed rule is to ensure safety of life on the navigable water of the United States during Swim Around Charleston.

The Coast Guard proposes to establish a temporary safety zone on the waters of the Wando River, Cooper River, Charleston Harbor, and Ashley River, in Charleston, South Carolina during Swim Around Charleston on September 25, 2016. Approximately 120 swimmers are anticipated to participate in the race. Persons and vessels desiring to enter, transit through, anchor in, or remain within the regulated area may contact the Captain of the Port Charleston by telephone at (843) 740-7050, or a designated representative via VHF radio on channel 16, to request authorization. If authorization to enter, transit through, anchor in, or remain within the regulated area is granted, all persons and vessels receiving such authorization must comply with the instructions of the Captain of the Port Charleston or a designated representative. The Coast Guard will provide notice of the safety zone by Local Notice to Mariners, Broadcast Notice to Mariners, and on-scene designated representatives.

We developed this proposed rule after considering numerous statutes and Executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive orders and we discuss First Amendment rights of protestors.

Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This NPRM has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, the NPRM has not been reviewed by the Office of Management and Budget.

The economic impact of this proposed rule is not significant for the following reasons: (1) The safety zone would be enforced for only seven hours; (2) the safety zone would move with the participant vessels so that once the swimmers clear a portion of the waterway, the safety zone would no longer be enforced in that portion of the waterway; (3) although persons and vessels would not be able to enter or transit through the safety zone without authorization from the Captain of the Port Charleston or a designated representative, they would be able to operate in the surrounding area during the enforcement period; (4) persons and vessels would still be able to enter or transit through the safety zone if authorized by the Captain of the Port Charleston or a designated representative; and (5) the Coast Guard would provide advance notification of the safety zone to the local maritime community by Local Notice to Mariners and Broadcast Notice to Mariners.

The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule would not have a significant economic impact on a substantial number of small entities.

While some owners or operators of vessels intending to transit the safety zone may be small entities, for the reasons stated in section IV.A above this proposed rule would not have a significant economic impact on any vessel owner or operator.

If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (see ADDRESSES) explaining why you think it qualifies and how and to what degree this rule would economically affect it.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this proposed rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the FOR FURTHER INFORMATION CONTACT section. The Coast Guard will not retaliate against small entities that question or complain about this proposed rule or any policy or action of the Coast Guard.

This proposed rule would not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this proposed rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.

Also, this proposed rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. If you believe this proposed rule has implications for federalism or Indian tribes, please contact the person listed in the FOR FURTHER INFORMATION CONTACT section.

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this proposed rule would not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

We have analyzed this proposed rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have made a preliminary determination that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This proposed rule involves a safety zone lasting less than 7 hours that would prohibit entry within the safety zone. Normally such actions are categorically excluded from further review under paragraph 34(g) of Figure 2-1 of Commandant Instruction M16475.lD. A preliminary environmental analysis checklist and Categorical Exclusion Determination are available in the docket where indicated under ADDRESSES. We seek any comments or information that may lead to the discovery of a significant environmental impact from this proposed rule.

The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the FOR FURTHER INFORMATION CONTACT section to coordinate protest activities so that your message can be received without jeopardizing the safety or security of people, places, or vessels.

We view public participation as essential to effective rulemaking, and will consider all comments and material received during the comment period. Your comment can help shape the outcome of this rulemaking. If you submit a comment, please include the docket number for this rulemaking, indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation.

We encourage you to submit comments through the Federal eRulemaking Portal at http://www.regulations.gov. If your material cannot be submitted using http://www.regulations.gov, contact the person in the FOR FURTHER INFORMATION CONTACT section of this document for alternate instructions.

We accept anonymous comments. All comments received will be posted without change to http://www.regulations.gov and will include any personal information you have provided. For more about privacy and the docket, you may review a Privacy Act notice regarding the Federal Docket Management System in the March 24, 2005, issue of the Federal Register (70 FR 15086).

Documents mentioned in this NPRM as being available in the docket, and all public comments, will be in our online docket at http://www.regulations.gov and can be viewed by following that Web site's instructions. Additionally, if you go to the online docket and sign up for email alerts, you will be notified when comments are posted or a final rule is published.

For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR part 165 as follows:

Throughout this document, “we,” “us,” and “our” means the EPA.

On March 12, 2008, the EPA revised the levels of the primary and secondary 8-hour ozone NAAQS from 0.08 parts per million (ppm) to 0.075 ppm (73 FR 16436). The CAA requires states to submit, within three years after promulgation of a new or revised standard, SIPs meeting the applicable “infrastructure” elements of sections 110(a)(1) and (2). One of these applicable infrastructure elements, CAA section 110(a)(2)(D)(i), requires SIPs to contain “good neighbor” provisions to prohibit certain adverse air quality effects on neighboring states due to interstate transport of pollution. There are four sub-elements within CAA section 110(a)(2)(D)(i). This action reviews how the first two sub-elements of the good neighbor provisions, at CAA section 110(a)(2)(D)(i)(I) were addressed in an infrastructure SIP submission from Louisiana for the 2008 ozone NAAQS. These sub-elements require that each SIP for a new or revised standard contain adequate provisions to prohibit any emissions activity within the State from emitting air pollutants that will “contribute significantly to nonattainment” or “interfere with maintenance” of the applicable air quality standard in any other state.

Ozone is not emitted directly into the air, but is created by chemical reactions between oxides of nitrogen (NOX) and volatile organic compounds (VOCs) in the presence of sunlight. Emissions from electric utilities and industrial facilities, motor vehicles, gasoline vapors, and chemical solvents are some of the major sources of NOX and VOCs. Because ground-level ozone formation increases with temperature and sunlight, ozone levels are generally higher during the summer. Increased temperature also increases emissions of VOCs and can indirectly increase NOX emissions.1

We have addressed the interstate transport requirements of CAA section 110(a)(2)(D)(i)(I) with respect to ozone in several past regulatory actions. The NOX SIP Call, promulgated in 1998, addressed the good neighbor provision for the 1979 1-hour ozone NAAQS and the 1997 8-hour ozone NAAQS.2 The rule required 22 states and the District of Columbia to amend their SIPs and limit NOX emissions that contribute to ozone nonattainment. The Clean Air Interstate Rule (CAIR), promulgated in 2005, addressed both the 1997 fine particulate matter (PM2.5) and ozone standards under the good neighbor provision and required SIP revisions in 28 states and the District of Columbia to limit NOX and SO2 emissions that contribute to nonattainment of those standards.3 CAIR was remanded to us by the D.C. Circuit in North Carolina v. EPA, 531 F.3d 896 (D.C. Cir. 2008), modified on reh'g, 550 F.3d 1176. In response to the remand of CAIR, we promulgated the Cross State Air Pollution Rule (CSAPR) on July 6, 2011, to address CAA section 110(a)(2)(D)(i)(I) in the eastern 4 portion of the United States.5 With respect to ozone, CSAPR limited ozone season NOX emissions from electric generating units (EGUs). CSAPR addressed interstate transport as to the 1997 8-hour ozone NAAQS, the 1997 annual PM2.5 NAAQS and the 2006 24-hour PM2.5 NAAQS, but did not address the 2008 8-hour ozone standard.

On June 4, 2013, Louisiana provided us with a SIP submittal addressing CAA section 110(a)(2) “infrastructure” requirements for the 2008 ozone NAAQS. This action concerns the portion of the SIP submittal pertaining to the CAA section 110(a)(2)(D)(i)(I) requirement to address the interstate transport of air pollution which will significantly contribute to nonattainment or interference with maintenance of the 2008 ozone NAAQS in other states. We proposed approval on other portions of the State's submittal relating to CAA section 110(a)(2) elements A, B, C, D(i)(II), D(ii), E, F, G, H, J, K, L, and M in a separate action signed on May 18, 2016.

In its SIP submittal, Louisiana provided an “Infrastructure Checklist” for the 2008 ozone NAAQS and stated that the submittal substantiates that the State has adequate provisions to prohibit air pollutant emissions from within the State that significantly contribute to nonattainment or interfere with maintenance of the NAAQS in another state. The checklist states that the Louisiana Department of Environmental Quality (LDEQ) submitted and we approved CAIR SIPs for both sulfur dioxide and NOX emissions, citing 72 FR 39741 (July 20, 2007) and 72 FR 55064 (September 28, 2007).6 The checklist also notes that the controls installed to comply with CAIR are required by State law at Louisiana Administrative Code (LAC) 33:III.905 to be “used and diligently maintained.” The checklist also provided narrative on the D.C. Circuit's 2012 decision in EME Homer City Generation, L.P. v. EPA which vacated CSAPR and the November 19, 2012, memorandum explaining the continued implementation of CAIR until a replacement rule could be implemented.

Louisiana's SIP submittal included a response to comments document which, among other things, summarized and responded to February 15, 2013, comments from us on what was then the State's proposed SIP revision. In our comments on the proposed SIP revision, we noted that the information LDEQ provided was based upon the old 1997 8-hour ozone NAAQS requirements and was therefore not sufficient to support a conclusion that the State's ozone emissions do not contribute to nonattainment or interfere with maintenance of the 2008 ozone NAAQS. In its response, Louisiana disagreed, and accordingly chose not to revise its proposed SIP revision or provide any additional support for its conclusions. Instead, Louisiana contended in its response to comments that, “the information based on the 1997 8-hour ozone NAAQS requirements is relevant . . . through the CAIR NOX program in that it demonstrates the state's most recent efforts in maintaining the 8-hour ozone NAAQS and to alleviate transport pollutants.” A copy of the Louisiana SIP submittal, which includes our February 15, 2013, comment letter and the State's response to comments, may be accessed online at http://www.regulations.gov, Docket No. EPA-R06-OAR-2013-0464.

As noted above, we informed Louisiana in our February 15, 2013, comment letter that the information provided in the SIP submittal would not itself be sufficient to conclude that the State has adequate provisions to prohibit air pollutant emissions from within the State that significantly contribute to nonattainment or interfere with maintenance of the 2008 ozone NAAQS in other states. However, the SIP submittal provided by Louisiana cited the State's approved CAIR SIP as support for its conclusion that the State satisfied its section 110(a)(2)(D)(i)(I) obligation with respect to the 2008 ozone NAAQS.

First, CAIR was invalidated by the D.C. Circuit in North Carolina v. EPA, 531 F.3d 896 (2008). The D.C. Circuit held, among other things, that the CAIR rule did not “achieve[] something measureable toward the goal of prohibiting sources within the State from contributing to nonattainment or interfering with maintenance in any other State.” Id. at 908; see also, e.g., id. at 916 (EPA is not exercising its authority to make measureable progress towards the goals of section 110(a)(2)(D)(i)(I) because the emission budgets were insufficiently related to the statutory mandate). In promulgating CSAPR, we corrected our prior approvals of states' CAIR SIPs, including Louisiana's approved CAIR SIPs, “to rescind any statements that the SIP submissions either satisfy or relieve the state of the obligation to submit a SIP to satisfy the requirements of section 110(a)(2)(D)(i)(I) with respect to the 1997 ozone and/or 1997 PM2.5 NAAQS or any statements that EPA's approval of the SIP submissions either relieve EPA of the obligation to promulgate a FIP or remove EPA's authority to promulgate a FIP.” 76 FR 48208, 48220. In reviewing CSAPR, the D.C. Circuit concluded that our correction of the prior CAIR approvals was appropriate, explaining “when our decision in North Carolina deemed CAIR to be an invalid effort to implement the requirements of the good neighbor provision, that ruling meant that the initial approval of the CAIR SIPs was in error at the time it was done.” EME Homer City Generation, L.P v. EPA, 795 F.3d 118, 133 (D.C. Cir. 2015). Therefore, the D.C. Circuit has clearly concluded that states cannot rely on CAIR or previously approved CAIR SIPs to satisfy the requirements of section 110(a)(2)(D)(i)(I).

Even if Louisiana could rely on its CAIR SIPs, as we stated in our comment letter, the modeling and rulemaking conducted for both CAIR and CSAPR addressed the 1997 ozone NAAQS, not the more stringent 2008 ozone NAAQS at issue in this action. EPA-approved rules implementing a prior, less stringent NAAQS are not adequate on their own to support a demonstration regarding the impacts of in-state emissions on air quality in other states with respect to the 2008 ozone NAAQS.7 Additionally, although we approved the Louisiana abbreviated SIP implementing the CAIR NOX trading program, neither the states nor the EPA are currently implementing the ozone-season NOX trading program promulgated in CAIR, as it has been replaced by CSAPR. Moreover, although the State cites to a State regulation requiring that already-installed controls be “used” and “maintained,” the State does not provide any explanation as to whether the sources are subject to specific emissions limitations or how the use of the controls will impact downwind air quality.

Finally, it is no longer appropriate for Louisiana to rely on the D.C. Circuit decision vacating CSAPR as a basis for concluding that its SIP is adequate. Although the D.C. Circuit initially held that states did not have an obligation to make a SIP submission addressing section 110(a)(2)(D)(i)(I) until we first quantified a state's emission reduction obligation, see EME Homer City, 696 F.3d 7, on April 29, 2014, the Supreme Court reversed this decision and remanded the case to the D.C. Circuit for further proceedings. EPA v. EME Homer City Generation, L.P., 134 S. Ct. 1584 (2014). The Supreme Court explained that “nothing in the statute places EPA under an obligation to provide specific metrics to States before they undertake to fulfill their good neighbor obligations.” Id. at 1601.

Because the Louisiana submittal addressed by this action concerns states' interstate transport obligations for a different and more stringent standard (the 2008 ozone NAAQS), it is not sufficient to merely cite as evidence of compliance that these older programs have been implemented by the states or the EPA.8 The submittal lacks any technical analysis evaluating or demonstrating whether emissions in each state impact air quality in other states with respect to the 2008 ozone NAAQS. As such, the submittal does not provide us with a basis to agree with the conclusion that the State already has adequate provisions in the SIP to address CAA section 110(a)(2)(D)(i)(I) requirements for the 2008 ozone NAAQS. Thus, we propose to find that the Louisiana submittal is not adequate as it did not evaluate whether emissions from the State significantly contribute to nonattainment or interfere with maintenance of the 2008 ozone NAAQS in other states.

Although the Louisiana submittal contains no data or analysis to support their conclusion with respect to section 110(a)(2)(D)(i)(I) for the 2008 8-hour ozone standard, we recently shared new technical information with states to facilitate efforts to address interstate transport requirements for the 2008 ozone NAAQS. Such technical information provides further support to our determination that Louisiana is projected to significantly contribute to nonattainment and interfere with maintenance of the 2008 ozone NAAQS in other states. We developed this technical information following the same approach used to evaluate interstate transport in CSAPR in order to support the recently proposed Cross-State Air Pollution Rule Update for the 2008 Ozone NAAQS, (80 FR 75706, December 3, 2015) (“CSAPR Update Rule”).

In CSAPR, we used detailed air quality analyses to determine whether an eastern state's contribution to downwind air quality problems was at or above specific thresholds. If a state's contribution did not exceed the specified air quality screening threshold, the state was not considered “linked” to identified downwind nonattainment and maintenance receptors and was, therefore, not considered to significantly contribute to nonattainment or interfere with maintenance of the standard in those downwind areas. If a state exceeded that threshold, the state's emissions were further evaluated, taking into account both air quality and cost considerations, to determine what, if any, emissions reductions might be necessary. For the reasons stated below, we believe it is appropriate to use the same approach we used in CSAPR to establish an air quality screening threshold for the evaluation of interstate transport requirements for the 2008 ozone standard.

In CSAPR, we proposed an air quality screening threshold of one percent of the applicable NAAQS and requested comment on whether one percent was appropriate. We evaluated the comments received and ultimately determined that one percent was an appropriately low threshold because there were important, even if relatively small, contributions to identified nonattainment and maintenance receptors from multiple upwind states. In response to commenters who advocated a higher or lower threshold than one percent, we compiled the contribution modeling results for CSAPR to analyze the impact of different possible thresholds for the eastern United States. Our analysis showed that the one percent threshold captures a high percentage of the total pollution transport affecting downwind states, while the use of higher thresholds would exclude increasingly larger percentages of total transport. For example, at a five percent threshold, the majority of interstate pollution transport affecting downwind receptors would be excluded. In addition, we determined that it was important to use a relatively lower one percent threshold because there are adverse health impacts associated with ambient ozone even at low levels. We also determined that a lower threshold such as 0.5 percent would result in relatively modest increases in the overall percentages of fine particulate matter and ozone pollution transport captured relative to the amounts captured at the one-percent level. We determined that a “0.5 percent threshold could lead to emission reduction responsibilities in additional states that individually have a very small impact on those receptors—an indicator that emission controls in those states are likely to have a smaller air quality impact at the downwind receptor. We are not convinced that selecting a threshold below one percent is necessary or desirable.”

In the final CSAPR, we determined that one percent was a reasonable choice considering the combined downwind impact of multiple upwind states in the eastern United States, the health effects of low levels of fine particulate matter and ozone pollution, and the previous use of a one percent threshold in CAIR. We used a single “bright line” air quality threshold equal to one percent of the 1997 8-hour ozone standard, or 0.08 ppm. The projected contribution from each state was averaged over multiple days with projected high modeled ozone, and then compared to the one percent threshold. We concluded that this approach for setting and applying the air quality threshold for ozone was appropriate because it provided a robust metric, was consistent with the approach for fine particulate matter used in CSAPR, and because it took into account, and would be applicable to, any future ozone standards below 0.08 ppm. We have subsequently proposed to use the same threshold for purposes of evaluating interstate transport with respect to the 2008 ozone standard in the CSAPR Update Rule.

In 2015 we (1) provided notice of data availability (NODA) for the updated ozone transport modeling for the 2008 ozone NAAQS for public review and comment (80 FR 46271, August 4, 2015), and (2) proposed the CSAPR Update Rule to address interstate transport with respect to the 2008 ozone NAAQS (80 FR 75706, December 3, 2015). The proposed CSAPR Update Rule would further restrict ozone season NOX emissions from EGUs in 23 states, including Louisiana, beginning in the 2017 ozone season.

The modeling data released in this NODA was also used to support the proposed CSAPR Update Rule. The moderate area attainment date for the 2008 ozone standard is July 11, 2018. In order to demonstrate attainment by this attainment deadline, states will use 2015 through 2017 ambient ozone data. Therefore, we proposed that 2017 is an appropriate future year to model for the purpose of examining interstate transport for the 2008 ozone NAAQS. We used photochemical air quality modeling to project ozone concentrations at air quality monitoring sites to 2017 and estimated state-by-state ozone contributions to those 2017 concentrations. This modeling used the Comprehensive Air Quality Model with Extensions (CAMx version 6.11) to model the 2011 base year, and the 2017 future base case emissions scenarios to identify projected nonattainment and maintenance sites with respect to the 2008 ozone NAAQS in 2017. We used nationwide state-level ozone source apportionment modeling (CAMx Ozone Source Apportionment Technology/Anthropogenic Precursor Culpability Analysis technique) to quantify the contribution of 2017 base case NOX and VOC emissions from all sources in each state to the 2017 projected receptors. The air quality model runs were performed for a modeling domain that covers the 48 contiguous United States and adjacent portions of Canada and Mexico. The NODA and the supporting technical support documents have been included in the docket for this SIP action.

The modeling data released in the NODA and the CSAPR Update Rule are the most up-to-date information we have developed to inform our analysis of upwind state linkages to downwind air quality problems. As discussed in the CSAPR Update Rule proposal, the air quality modeling (1) identified locations in the U.S. where we expect nonattainment or maintenance problems in 2017 for the 2008 ozone NAAQS (i.e., nonattainment or maintenance receptors), and (2) quantified the projected contributions of emissions from upwind states to downwind ozone concentrations at those receptors in 2017 (80 FR 75706, 75720-30, December 3, 2015). Consistent with CSAPR, we proposed to use a threshold of one percent of the 2008 ozone NAAQS (0.75 parts per billion) to identify linkages between upwind states and downwind nonattainment or maintenance receptors. We proposed that eastern states with contributions to a specific receptor that meet or exceed this screening threshold are considered “linked” to that receptor and were analyzed further to quantify available emissions reductions necessary to address interstate transport to these receptors.

Table 1 is a summary of the air quality modeling results for Louisiana from Tables V.D-1, V.D-2 and V.D-3 of the proposed CSAPR Update Rule.9 As the State's downwind contribution to proposed nonattainment and maintenance receptors exceeded the threshold, the analysis for the proposal concluded that Louisiana's emissions significantly contribute to nonattainment and interfere with maintenance of the 2008 ozone NAAQS in other states. Louisiana's emissions were linked (1) to eastern nonattainment receptors in Sheboygan, Wisconsin, and the Dallas/Fort Worth and Houston areas of Texas, and (2) to eastern maintenance receptors in the Dallas/Fort Worth and Houston areas.

Accordingly, the most recent technical analysis available to us contradicts Louisiana's conclusion that the SIP contains adequate provisions to address interstate transport as to the 2008 ozone standard.

We are thus proposing to disapprove the portion of the Louisiana SIP submittal pertaining to interstate transport of air pollution which will significantly contribute to nonattainment or interfere with maintenance of the 2008 ozone NAAQS in other states—i.e., element (D)(i)(I). As explained above, the Louisiana submittal did not provide an adequate technical analysis demonstrating that the SIP contains adequate provisions prohibiting emissions that will significantly contribute to nonattainment or interfere with maintenance of the 2008 ozone NAAQS in any other state. Moreover, our most recent modeling indicates that emissions from Louisiana are in fact projected to significantly contribute to nonattainment and interfere with maintenance of the 2008 ozone NAAQS in other states.

We propose to disapprove the portion of a June 4, 2013 Louisiana SIP submittal pertaining to CAA section 110(a)(2)(D)(i)(I), the interstate transport of air pollution which will significantly contribute to nonattainment or interfere with maintenance of the 2008 ozone NAAQS in other states.

Pursuant to CAA section 110(c)(1), disapproval will establish a 2-year deadline for the EPA to promulgate a FIP for Louisiana to address the requirements of CAA section 110(a)(2)(D)(i) with respect to the 2008 ozone NAAQS unless Louisiana submits and we approve a SIP that meets these requirements. Disapproval does not start a mandatory sanctions clock for Louisiana pursuant to CAA section 179 because this action does not pertain to a part D plan for nonattainment areas required under CAA section 110(a)(2)(I) or a SIP call pursuant to CAA section 110(k)(5).

This proposed action is not a significant regulatory action and was therefore not submitted to the Office of Management and Budget for review.

This proposed action does not impose an information collection burden under the PRA because it does not contain any information collection activities.

I certify that this proposed action will not have a significant economic impact on a substantial number of small entities under the RFA. This action merely proposes to disapprove a SIP submission as not meeting the CAA.

This proposed action does not contain any unfunded mandate as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. The action imposes no enforceable duty on any state, local or tribal governments or the private sector.

This proposed action does not have federalism implications. It will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government.

This proposed action does not have tribal implications as specified in Executive Order 13175. This action does not apply on any Indian reservation land, any other area where the EPA or an Indian tribe has demonstrated that a tribe has jurisdiction, or non-reservation areas of Indian country. Thus, Executive Order 13175 does not apply to this action.

We interpret Executive Order 13045 as applying only to those regulatory actions that concern environmental health or safety risks that we have reason to believe may disproportionately affect children, per the definition of “covered regulatory action” in section 2-202 of the Executive Order. This action is not subject to Executive Order 13045 because it merely proposes to disapprove a SIP submission as not meeting the CAA.

This proposed action is not subject to Executive Order 13211, because it is not a significant regulatory action under Executive Order 12866.

This proposed rulemaking does not involve technical standards.

We believe the human health or environmental risk addressed by this action will not have potential disproportionately high and adverse human health or environmental effects on minority, low-income or indigenous populations. This action merely proposes to disapprove a SIP submission as not meeting the CAA.

This is a summary of a document in, ET Docket No. 13-49, FCC 16-68, adopted May 25, 2016, and released June 1, 2016. The full text of this document is available for inspection and copying during normal business hours in the FCC Reference Center (Room CY-A257), 445 12th Street SW., Washington, DC 20554. The full text may also be downloaded at: www.fcc.gov. People with Disabilities: To request materials in accessible formats for people with disabilities (braille, large print, electronic files, audio format), send an email to [email protected] or call the Consumer & Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 (tty).

The non-Federal Mobile Service operating on a primary basis in the 5.850-5.925 GHz band is limited to DSRC systems, a component of the Intelligent Transportation System (ITS) radio service.

In a Notice of Proposed Rulemaking in February 2013, the Commission explored the potential for future unlicensed operations in the 5.850-5.925 GHz band, and sought comment on technical requirements and sharing technologies and techniques that could be used by unlicensed users to protect incumbent operations, and specifically DSRC. See Revision of Part 15 of the Commission's Rules to Permit Unlicensed National Information Infrastructure (U-NII) Devices in the 5 GHz Band, ET Docket No. 13-49, Notice of Proposed Rulemaking, 28 FCC Rcd 1769 (2013) (NPRM); 78 FR 21320, April 10, 2013.

In comments on the Commission's proposal, the automobile industry and the National Telecommunications and Information Administration (NTIA) on behalf the Department of Transportation (DoT) raised potential interference concerns with respect to protecting DSRC from unlicensed users. Subsequently, in August 2013, the Regulatory Standing Committee of IEEE 802.11 formed “the DSRC Coexistence Tiger Team” to investigate potential mitigation techniques that might enable sharing between the proposed unlicensed devices and DSRC equipment. The IEEE Tiger Team completed its work in March 2015, stating that it was unable to reach a consensus, but instead submitted that further analyses and testing could follow.

The IEEE Tiger Team examined two proposed sharing techniques. The “detect and avoid” approach involves detecting the presence of DSRC signals, and avoiding using the spectrum in this band when DSRC signals are present. Under this sharing proposal, unlicensed devices would monitor the existing 10 megahertz-wide DSRC channels. If an unlicensed device detects any transmitted DSRC signal, it would avoid using the entire DSRC band to assure no interference occurs to DSRC communications. After waiting a certain amount of time the unlicensed device would again sense the DSRC spectrum to determine if any DSRC channels are in use or whether it could safely transmit.

The “re-channelization” approach involves splitting the DSRC spectrum into two contiguous blocks: The upper part of the band exclusively for safety-related communications, and permitting unlicensed devices to share the lower part of the band with non-safety DSRC communications. This would be accomplished by moving the control channel and the two public safety channels to the top portion of the band, and reconfiguring the remaining four DSRC service channels in the lower end of the band as two 20 megahertz channels rather than maintaining four 10 megahertz channels. Under this approach, sharing between unlicensed devices and non-safety DSRC would occur according to the sharing protocols used by standard 802.11 devices, i.e., the device would listen for an “open” channel in the 5.850-5.895 GHz band and transmit if available. Otherwise the device would wait a very short period of time, and then try again.

The Commission now seeks comment on the merits of these two approaches. What are the benefits and drawbacks of each approach? Would one approach be better than the other (e.g., minimize the risks of interference to DSRC more effectively while providing a comparable degree of meaningful access to spectrum for unlicensed devices)? For either approach, is it necessary for the Commission to specify all the details of the interference avoidance mechanism in the FCC rules or can this be addressed by relying primarily on industry standards bodies to develop the specific sharing methods? If the former, what specific technical details need to be specified in the FCC rules (e.g., out of bound emissions, noise tolerance, detection threshold, channel vacate time, etc.)? Has industry agreed upon performance indicators for DSRC, and if so, what are these metrics and is there a process to hold products to these performance levels?

The Commission also seeks comment on how the choice of avoidance protocol affects the deployment and performance of DSRC. Would “re-channelization” require any change in the design of the DSRC electronic components contained in DSRC prototypes or just require a change in the processing of the data? The Commission seeks comment on whether changing the channel plan would require re-testing of DSRC and, if so, precisely what would need to be done, why, and in what timeframe? Commenters responding to this question should provide specific information about why the completed tests are not applicable to re-channelization, how any new tests will differ from those already performed, and the relevant timeframes for completing these specific tasks.

Further, any testing, studies or analyses that have been performed regarding DSRC capabilities, Wi-Fi performance, interference studies or the potential benefits or drawbacks of sharing, which are relied upon by stakeholders in this proceeding, either in the past or going forward, need to be filed in the record to be considered. Additionally, has any testing been done regarding DSRC self-interference or potential harmful interference with satellite and government co-channel or adjacent users? Any such information filed should include the test plans, results, and underlying data needed to fully evaluate the submission. If there are data or reports that are not public, parties should describe the data and reports and explain why it is necessary to submit this information confidentially.

The Commission also seeks comment on what DSRC-related use cases should be expected and permitted in this band. Commenters should provide specific information regarding what DSRC applications are anticipated, what are the projected spectrum needs for each application, and how would the commenter classify each (i.e., safety, non-safety, time critical or not)? Should the DSRC offerings provided on a priority or exclusive basis be restricted to safety-of-life or crash avoidance purposes? What are the technical or policy reasons for differentiating between safety-of-life and non-safety-of-life applications? Are there meaningful distinctions between DSRC applications that are safety-related and those that are not, such as applications that are time critical? For parties that advocate for re-channelization, is there a natural bifurcation point if the Commission decides to separate safety-related and non-safety-related DSRC? For instance, while entertainment, social media, maps, and parking applications are not safety-related, what is a good definition for a feature or service to be considered truly a safety-of-life use? How does our current band plan and these sharing approaches match up with international efforts for safety-related DSRC systems?

To fully evaluate the potential effects of re-channelization, the Commission requests information on the projected timeframe for introduction of DSRC deployments under the current channel plan. What market penetration (e.g., percentage of cars on the road) is needed for DSRC to reliably provide safety-of-life functions or prevent vehicle-to-vehicle collisions? What are the projected timeframes for achieving the penetration levels needed for each safety-of-life or crash avoidance function to be effective? Will these penetration levels be met by equipment that is native to the automobile or through standalone or retrofit devices? Would these timeframes change if re-channelization occurs and by how much? In the meantime, what other spectrum bands, driver-assist technologies, and commercial offerings are providing similar services to those envisioned using DSRC? Is it possible that autonomous car and other technologies could bypass DSRC safety-of-life capabilities prior to reaching a sufficient technology penetration to make this service effective?

Does the 5.850-5.895 MHz portion of the band potentially offer the most value for unlicensed operations? What are the advantages and disadvantages of combining the non-safety-related channels into larger channels? How should portions of the band not required for safety-of-life applications be shared among DSRC and unlicensed operations? For instance, should non-safety of life DSRC applications share the lower re-channelized band on an equal basis with unlicensed operators or have some priority? If commercial or other non-safety DSRC applications have priority access to the band, is a detect-and-vacate protocol necessary or does the IEEE 802.11 standard or other protocols allow for prioritization of DSRC traffic without the need to vacate non-safety channels for a pre-determined time period?

In addition, the Commission invites interested parties to suggest other approaches that would facilitate unlicensed use of the 5.850-5.925 GHz band without causing harmful interference to DSRC operations. Would a hybrid approach taking elements from both the “detect and avoid” and the “re-channelization” proposals create benefits for both DSRC and U-NII users? Are there advantages to an approach where unlicensed operators would use technologies such as the standard Wi-Fi protocol to share access to the non-safety-of-life DSRC operations in the lower 45 megahertz of spectrum, while unlicensed devices would use a “detect and avoid” approach to avoid, and thus protect, co-channel safety-of-life DSRC operations in the upper 30 megahertz of spectrum? Is it feasible to develop a “hybrid chip” that would implement a DSRC standard receiver for detection purposes to allow unlicensed use, if the spectrum is clear? Would it be viable to employ an approach based on use of a database to control access to the spectrum similar to that used for the Citizens Broadband Band Radio Service at 3.5 GHz or for White Space devices in the TV and 600 MHz Service bands? The Commission asks parties to propose mitigation techniques with adequate specificity and detail so that the Commission can compare and contrast them with the proposals already being considered. In that regard, the Commission seeks comment on the viability of any new proposal, and benefits and costs of the suggested technique, and on any trade-offs related to the proposal.

The Commission invites comment on the ramifications of any of the sharing techniques relative to indoor as well as outdoor use. For instance, is re-channelization, detect and avoid, or a hybrid approach more or less likely to allow for unlicensed indoor and outdoor deployments? Do certain sharing techniques permit more or less indoor or outdoor unlicensed use in certain geographic areas? Are there technical parameters that could be put into place to obviate interference concerns and facilitate deployment of unlicensed networks in either indoor or outdoor environments? For example, would it be feasible to tie the use of lower power levels for indoor-only devices to a less rigorous DSRC detection method in those devices, leaving the more sensitive DSRC detection methods to higher power outdoor-only units? Is it reasonable to assume that indoor-only devices are less likely to cause interference to DSRC outdoors, thus allowing for less aggressive detection sensitivity? If so, what technical characteristics would be required? The Commission seeks a full record on this technique and its specification to assess whether it is possible to share the DSRC band in this manner.

The Commission invites parties to submit 5.9 GHz prototype unlicensed, interference-avoiding devices to the Commission for testing. The Commission also request that parties provide 5.9 GHz DSRC equipment, against which to test the prototype unlicensed, interference avoiding devices. In addition, the Commission requests comment on what date is reasonable for prototype submission, and what constitutes an acceptable prototype (e.g., does the device need to be able to communicate with another device, or is it sufficient for the device to only demonstrate the sharing technique?). The deadline for submission of prototypes shall be July 30, 2016; however, the Office of Engineering and Technology (OET) is delegated the authority to establish the submission requirements and grant waivers or extensions of the submission deadline or requirements, as necessary. Given the importance of this item, parties should explain in detail in any waiver or extension request why such request should be granted. Parties that would like to submit devices for testing should advise OET as soon as possible and should deliver their device at their earliest opportunity. To arrange delivery of a device, please contact Reza Biazaran at (301) 362-3052 or [email protected].

The Commission, in coordination with the DoT and NTIA, will test the prototype equipment as follows:

Phase I: Testing at the FCC Laboratory in Columbia, Maryland to determine the prototypes' technical characteristics and how they are designed to avoid causing harmful interference to DSRC.

Phase II: Basic field tests with a few vehicles at a DoT facility. The Phase II tests will determine whether the techniques to avoid interference that were evaluated in Phase I's lab tests are effective in the field.

Phase III: Tests in “real-world” scenarios, with many vehicles, more test devices, and at a suitable facility.

The Commission seeks comment on the proposed Phase I test plan as set forth below. The Phase I test plan describes an approach and methodology to empirically determine interference tolerance and thresholds associated with the DSRC receive components of the Vehicle-to-Vehicle (V2V) and Vehicle-to-Infrastructure (V2I) communication links relative to the introduction of U-NII emissions into the 5.850-5.925 GHz band, and to evaluate the effectiveness and reliability of any U-NII device interference mitigation capabilities. Since U-NII represents an unlicensed application for which any interference received from the operation of an authorized radio service must be accepted, the test plan does not assess the interference potential from DSRC transmissions to projected U-NII receivers.

The data resulting from the Commission's tests are intended to inform the Phase II and Phase III analyses in which other relevant factors can be given further consideration, and the analytical results can be validated through limited field tests.

The three phases of the test plan are interdependent. The Commission anticipates that all three phases of the test plan will be completed before reaching any conclusions as to how unlicensed devices can safely operate in the 5.850-5.925 GHz band. The Commission, however, expects that testing will be concluded and submitted into the record no later than January 15, 2017. Given the importance of this item, parties should explain in detail why any additional time should be allocated. Engineers from the FCC will carefully examine the options and mechanisms for sharing in the 5.850-5.925 GHz band and closely scrutinize the myriad interference prevention approaches.

The following section describes the Phase I technical characterization effort for evaluating the potential for electromagnetic compatibility (EMC) between U-NII Devices and DSRC operations associated with the ITS under the proposal to share the 5.850-5.925 GHz band.

The objective of this test effort is to collect the data necessary to establish interference thresholds associated with key performance parameters that can then be used in subsequent scenario-based analyses to better assess the interference potential to DSRC operations that might be introduced from sharing the frequency band with unlicensed (U-NII) devices. In addition, any interference mitigation capabilities provided by the U-NII prototype test samples will be evaluated for viability, efficiency, and reliability.

It is recognized that the EMC concerns introduced by the proposal to share the DSRC frequency band with unlicensed operations are complex, primarily due to the dynamic variabilities associated with each system under consideration. For example, U-NII applications are predominately utilized to establish local area networks (LANs), typically in support of Wi-Fi access and usage, although fixed point-to-point communication links for supporting Internet backhaul applications are also likely. While the access points associated with LAN applications are typically relatively fixed in terms of location, the client devices that communicate with them can be quite mobile. Similarly, the DSRC roadside units (RSUs) are typically sited at fixed locations along roadways, but the on-board units (OBU's) that communicate with the RSU's and with other OBU's are vehicle-mounted and thus can involve high-velocity dynamic mobility. As such, it will be impractical to examine each and every potential interaction involving U-NII transmissions relative to DSRC receivers in either an empirical or analytical effort. Therefore, the approach proposed in this test plan represents an attempt to contain the myriad of variable conditions within a space bounded between “best case” (no interference) and “worst case” (maximum interference) conditions. Subsequent analytical efforts can then introduce appropriate scenario-based considerations, and examine associated subtleties such as the probability of occurrence and the maximum duration of potential interference interactions.

In an effort to deal with these complexities, the examination of compatibility between proposed U-NII transmitters and DSRC receivers sharing the same frequency band will employ a phased approach, with the various interested agencies (i.e., FCC, NTIA, and DoT) collaborating in each distinct test phase. Each successive phase of the study will progressively consider additional interference interaction variabilities. The first phase of this effort will be performed at the FCC Laboratory in Columbia, Maryland and will involve bench tests in a laboratory environment assuming static conditions (i.e., vehicle dynamics not considered). It is envisioned that the Phase II effort will utilize the Phase I data to support analytical efforts to assess compatibility under scenario-specific conditions and will also include some result verification through limited scenario-based field tests. The final phase (Phase III) of the study is envisioned to utilize the Phase II results, adjusted accordingly based on the verification test observations, to expand the field testing under “real world” conditions such as those proposed in Section 6.0 of the DoT Test Plan.

This test plan primarily describes the proposed Phase I effort of this study, to be performed by FCC engineers at its laboratory facility in Columbia, MD, with the support of DoT engineers.

It is anticipated that the likely interference mechanisms associated with sharing the DSRC frequency band are: (1) A potential for degrading the DSRC receiver noise floor, and thus, the link signal-to-noise ratio (SNR) due to additive noise-like interference introduced by proposed U-NII devices; (2) a potential for corruption of received data packets due to introduced interference, resulting in an increased packet error rate (PER) and/or reduced data throughput; (3) a potential for channel access contention, resulting in an increase in the time required for DSRC channel access; and (4) a potential for receiver saturation or overload due to short-range, co-tuned interactions. These represent the potential interference mechanisms and associated metrics that will be examined as a part of this proposed Phase I test effort.

Several possible techniques and strategies have been proposed for mitigating interference interactions between projected U-NII transmitters and DSRC receivers. The IEEE Tiger Team explored two possible options: (1) The use of the existing DSRC channel plan with a clear channel assessment (CCA) capability specified for U-NII transmissions in the 10-MHz DSRC channels, and (2) the adoption of a modified DSRC channel plan (i.e., bi-furcation of the DSRC frequency band) with a CCA capability specified in 20-MHz channels. The NTIA 5 GHz Report proposed more general mitigation strategies, such as several possible detection methodologies for use in implementing a CCA capability (e.g., energy, matched filter, and signal detection), and a geo-location/database mitigation approach. The NTIA 5 GHz Report also identifies some of the potential inadequacies associated with each of these potential interference mitigation approaches.

The 802.11 standard under which U-NII operates currently provides for two methods of implementing a CCA capability. The first method, known as Carrier Sensing (CS), involves a determination of channel availability through the detection (reception) and decoding of the preamble of a data packet transmitted by the current channel occupant. Most 802.11 U-NII devices utilize the same basic CS technique, known as Carrier Sense Multiple Access with Collision Avoidance (CSMA/CA). The FCC does not specify nor regulate CS requirements for U-NII devices. The second CCA method specified in the 802.11 standard is known as Dynamic Frequency Selection (DFS) where a U-NII device must identify an occupied channel through the detection of the channel occupants radio-frequency (RF) energy levels relative to an established threshold value (i.e., Energy Detection (ED)), without regard to signal structure specifics. This technique is required for U-NII devices that share other portions of the 5 GHz spectrum in order to preclude interference to critical Government Radar operations. DFS requirements and compliance tests were developed cooperatively between FCC, NTIA and DoD, and are enforced by the FCC.

Since U-NII device access to the spectrum is on a non-interference basis (NIB), DSRC must be accorded primacy in any channel access protocol. Such access prioritization will also likely be required for all of the seven 10-MHz channels that are assigned to DSRC. Thus, to ensure DSRC preferential access, a U-NII device must be capable of detecting an access-contending DSRC signal at energy levels that are equal to, or below, the DSRC receiver sensitivity level on each of the seven DSRC channels.

As a primary element of this Phase I effort, the FCC will perform benchtop measurements of those prototype U-NII devices submitted for testing that implement these, or other not yet proposed, interference mitigation capabilities. The actual tests to be performed will be tailored to the particular mitigation strategy employed, and will be designed to ensure the effectiveness and reliability associated with the detection and recognition of DSRC-occupied channels.

It is not possible to design a detailed comprehensive plan for testing all of the components identified for examination in the Phase I test program until we have access to U-NII devices designed for operation in the 5.9 GHz frequency band and DSRC RSU and OBU equipment to test against. Therefore, what is proposed below represents a general plan for achieving the identified objectives. This plan will be adapted as necessary once more details of the devices to be tested are made available.

The first step in the Phase I effort is to solicit the devices necessary to implement the test plan, as the Commission does in this document. The FCC requests that industry provide prototype U-NII devices projected for operation in the 5.9 GHz frequency band, to include interference mitigation capabilities, for test and evaluation. The FCC, working cooperatively with NTIA and DoT, also request that the DSRC equipment necessary to exercise this test plan be provided. In addition, technical support must be made available to assist in configuring the devices for testing and in accessing the requisite device control and resulting data. All of the devices will be required to have appropriate software controls to perform the tests under a controlled environment.

As devices are submitted to the FCC laboratory as test samples, they will first be technically characterized through the measurement of standard RF parameters such as the occupied bandwidth (OBW), fundamental power, and unwanted emission levels associated with the transmitted signals, and the sensitivity and noise floor levels associated with the receivers. The measured parameters will be compared with appropriate specifications (e.g., IEEE 802.11ac, IEEE 802.11p, ASTM E2213, FCC regulations, and other applicable rules and standards).

Once the characterization measurements are complete, DSRC links will be established to simulate simple RSU-to-OBU and OBU-to-OBU two-way wireless communication. Upon successful establishment of such communication links, and before any interference signals are introduced, measurements will be performed to establish base-line values for parameters such as SNR (signal-to-noise ratio), PER (packet error rate), network delay and the variance in network delay (also known as jitter).

After the completion of baseline testing, a single U-NII signal, or simulation thereof (e.g., band-limited additive white Gaussian noise (AWGN)), will be introduced on a co-tuned basis (i.e., with coincident center frequencies) initially at a very low power level. The U-NII power level will then be incremented (1-3 dB steps) while the designated performance parameters are monitored and recorded. The results of this test will provide the data necessary to determine the DSRC tolerance to U-NII interference in a “worst-case” interference interaction (i.e., co-tuned operation). It is recognized that U-NII transmitters, particularly those used to provide Wi-Fi services, can utilize variable OBW's (occupied bandwidths) and are capable of implementing several combinations of data modulation and coding rate (Modulation-Coding Scheme or MCS) on a variable basis, depending on the transmission channel conditions. FCC experience gained from developing and instituting compliance measurement of U-NII transmissions suggest that there are only subtle differences in the relevant signal parameters among these combinations; however, measurements will be performed using different combinations of these variable parameters in an effort to identify a “worst-case” mode and to quantify the differential magnitude of the effect on a DSRC receiver.

The procedure described above will then be repeated with the U-NII transmit signal re-tuned to the center frequency of each of the two adjacent DSRC channels relative to the DSRC-occupied channel (i.e., upper and lower first adjacent channels). This measurement will produce data that can be used to determine the adjacent-channel rejection capability of a DSRC receiver which in turn can be used to inform an assessment of EMC assuming adjacent-channel operation. Dependent upon the results of this test and time constraints, this process may be repeated with the U-NII device tuned to DSRC channels further removed (in frequency) from the DSRC-occupied channel (i.e., second adjacent channel interaction).

Once these tests are complete, the potential effects of network loading (LAN and DSRC) and interference aggregation will be examined by the addition of supplementary DSCR links and U-NII devices to the test configuration as the availability of devices permit.

Similar procedures, with modifications based on the protocols implemented by the prototype U-NII sample devices, will be used to evaluate the effectiveness and reliability of any interference mitigation capabilities (e.g., DSRC signal detection methods, Clear Channel Assessment capability of U-NII devices, and other mitigation methods not yet defined).

The plan presented herein represents a “high-level” approach to the Phase I testing intended to acquire the empirical data necessary to further an examination of the potential for achieving EMC between U-NII devices and DSRC operations under the FCC proposal to share the 5.9 GHz frequency band. The proposed test procedures and methodologies will be further refined as more information becomes available with respect to the U-NII and DSRC devices anticipated to share this spectrum. The FCC requests relevant technical input in the form of comments from other concerned parties in the interest of enhancing and/or improving this test plan proposal.

The FCC, in consultation with the DoT and NTIA, will continue to collaborate, as well as engage with other stakeholders, and may make adjustments to the plan as it evolves. Our goal is to collect the relevant empirical data for use in analyzing and quantifying the interference potential introduced to DSRC receivers from unlicensed transmitters operating simultaneously in the 5.850-5.925 GHz band. The Commission anticipates that the tests conducted to date, combined with the results of the three-phase test plan described above, will provide reliable, real-world data on the performance of unlicensed devices designed to avoid interfering with DSRC operations in the 5.850-5.925 GHz band.

This proceeding has been designated as a “permit-but-disclose” proceeding in accordance with the Commission's ex parte rules. Persons making ex parte presentations must file a copy of any written presentation or a memorandum summarizing any oral presentation within two business days after the presentation (unless a different deadline applicable to the Sunshine period applies). Persons making oral ex parte presentations are reminded that memoranda summarizing the presentation must (1) list all persons attending or otherwise participating in the meeting at which the ex parte presentation was made, and (2) summarize all data presented and arguments made during the presentation. If the presentation consisted in whole or in part of the presentation of data or arguments already reflected in the presenter's written comments, memoranda or other filings in the proceeding, the presenter may provide citations to such data or arguments in his or her prior comments, memoranda, or other filings (specifying the relevant page and/or paragraph numbers where such data or arguments can be found) in lieu of summarizing them in the memorandum. Documents shown or given to Commission staff during ex parte meetings are deemed to be written ex parte presentations and must be filed consistent with rule 1.1206(b). In proceedings governed by rule 1.49(f) or for which the Commission has made available a method of electronic filing, written ex parte presentations and memoranda summarizing oral ex parte presentations, and all attachments thereto, must be filed through the electronic comment filing system available for that proceeding, and must be filed in their native format (e.g., .doc, .xml, .ppt, searchable .pdf). Participants in this proceeding should familiarize themselves with the Commission's ex parte rules.

Comments are due on or before July 7, 2016, and reply comments are due on or before July 22, 2016. All filings must refer to ET Docket No. 13-49.

Pursuant to sections 1.415 and 1.419 of the Commission's rules, 47 CFR 1.415, 1.419, interested parties may file comments and reply comments on or before the dates indicated on the first page of this document. Comments may be filed using the Commission's Electronic Comment Filing System (ECFS). See Electronic Filing of Documents in Rulemaking Proceedings, 63 FR 24121 (1998).

Electronic Filers: Comments may be filed electronically using the Internet by accessing the ECFS: http://fjallfoss.fcc.gov/ecfs2/.

Paper Filers: Parties who choose to file by paper must file an original and one copy of each filing. If more than one docket or rulemaking number appears in the caption of this proceeding, filers must submit two additional copies for each additional docket or rulemaking number.

Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail. All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission.

All hand-delivered or messenger-delivered paper filings for the Commission's Secretary must be delivered to FCC Headquarters at 445 12th St. SW., Room TW-A325, Washington, DC 20554. The filing hours are 8:00 a.m. to 7:00 p.m. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes and boxes must be disposed of before entering the building.

Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9300 East Hampton Drive, Capitol Heights, MD 20743.

U.S. Postal Service first-class, Express, and Priority mail must be addressed to 445 12th Street SW., Washington DC 20554.

People with Disabilities: To request materials in accessible formats for people with disabilities (braille, large print, electronic files, audio format), send an email to [email protected] or call the Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (tty).

The NPRM included an Initial Regulatory Flexibility Analysis (IRFA). That IRFA invited comment “on making available an additional 195 megahertz of spectrum in the 5.35-5.47 GHz and 5.85-5.925 GHz bands for U-NII use.” This document seeks further comment on some of the proposals initially raised in the NPRM and alternative proposals submitted into the record of this proceeding. We request supplemental comments on the IRFA in light of the details and issues raised in this document. These comments must be filed in accordance with the same filing deadlines as comments filed in response to this document as set forth on the first page of this document and have a separate and distinct heading designating them as responses to the IRFA.

The NPRM included a separate request for comment from the general public and the Office of Management and Budget on the information collection requirements contained therein, as required by the Paperwork Reduction Act of 1995, Public Law 104-13, and the Small Business Paperwork Relief Act of 2002, Public Law 107-198. As noted above, this document seeks further comment on some proposals and alternatives initially raised in the NPRM. We invite supplemental comment on these requirements in light of the details and issues raised in this document.

In order to clarify the application of the Randolph-Shepard Act (R-S Act) (20 U.S.C. 107, et seq.) and the Committee for Purchase from People Who Are Blind or Severely Disabled (CFP) statute (41 U.S.C. 8501, et seq.) formerly known as the Javits-Wagner-O'Day (JWOD) Act, to the operation and management of military dining facilities, DoD is proposing to amend the DFARS to implement the provisions of the Joint Report and Policy Statement (Joint Policy Statement) issued by DoD, the Department of Education (DoED), and the CFP pursuant to section 848 of the NDAA for FY 2006.

The Joint Explanatory Statement to Accompany the NDAA for FY 2015 requested that DoD prescribe implementing regulations for the application of the R-S Act and the CFP statute to contracts awarded for the operation of military dining facilities, and that the regulations address DoD contracts not covered by section 856 of the NDAA for FY 2007.

Pursuant to the Joint Policy Statement, the R-S Act applies to contracts for the operation of a military dining facility, also known as full food services, while the CFP statute applies to contracts and subcontracts for dining support services (including mess attendant services).

The CFP statute, implemented in FAR subpart 8.7, requires Federal agencies to acquire from participating nonprofit agencies all supplies or services on the Procurement List established by the CFP. The purpose of the CFP statute is to provide employment opportunities for people who are blind or have other severe disabilities. If a product or service is on the Procurement List, 41 U.S.C. 8504(a)requires the procuring agency to procure that product or service either from a qualified nonprofit agency for the blind or a qualified nonprofit agency for the severely disabled in accordance with CFP regulations. However, 41 U.S.C. 8504(b) provides an exception to section 8504(a) for a product that is available from an industry established under 18 U.S.C. 307 (Federal Prison Industries) and shall be procured from that industry pursuant to 18 U.S.C. 4124.

Section 107(b) of the R-S Act establishes a priority authorizing blind persons, licensed by a State licensing agency (SLA) to operate one or more vending facilities, wherever feasible, on Federal properties. Section 107d-3(e) of the R-S Act requires the Secretary of Education (the Secretary) to promulgate regulations (see 34 CFR 395.33) establishing a priority for the operation of cafeterias when the Secretary determines on an individual basis and after consultation with the head of the appropriate installation, that such operation can be provided at a reasonable cost with food of high quality comparable to that currently provided employees.

Pursuant to 34 CFR 395.33(a), the priority is afforded to the SLA when the Secretary determines, in consultation with the contracting officer, that the operation can be provided at a reasonable cost, with food of a high quality that is comparable to the food currently provided to employees. 34 CFR 395.33(b) requires Federal contracting officers to consult with the Secretary (see 395.33(a)) when the contracting officer has determined that an SLA's response to a solicitation for the operation of a cafeteria is within a competitive range and has been ranked among those proposals which have a reasonable chance of being selected for final award. The evaluation criteria established in a solicitation may include sanitation practices, personnel, staffing, menu pricing, and portion sizes, menu variety, budget, and accounting practices.

During the 1990s, confusion arose as to whether contracts for food services at military dining facilities should be subject to the CFP statute or the R-S Act. There was also confusion as to whether the SLA must be awarded a contract if its proposal is within the competitive range. In order for an SLA's proposal to be selected, the proposal must not only be in the competitive range, but also be ranked among those proposals which have a reasonable chance of being selected for final award. Placement in the competitive range alone does not mean an offer has been found competitive, comparable, acceptable, or reasonable for final award.

In order to resolve the confusion, section 848 of the NDAA for FY 2006 required DoD, DoED, and the CFP to issue the Joint Policy Statement, discussed below in section II.A. Since issuance of the Joint Policy Statement in 2006, the definition of “operation of a military dining facility” has been interpreted inconsistently. This rule proposes to implement the Joint Policy Statement which defines “operation of a military dining facility” to mean “the exercise of management responsibility and day-to-day decision-making authority by a contractor for the overall functioning of a military dining facility, including responsibility for its staff and subcontractors, where the DoD role is generally limited to contract administration functions described in FAR part 42.” We invite comments on the interpretation of this definition.

The rule proposes to locate the DFARS guidance for food services in DFARS part 237, Service Contracting, along with the current guidance for contracting for various types of services such as educational services, laundry and dry cleaning, and mortuary services. Because the food services policy emphasizes the R-S Act requirement for competition and potentially affects more than one category of contract source, the new guidance is more appropriately placed in the section on services. The proposed rule amends the DFARS to clarify the application of the R-S Act and the CFP statute to contracts for the operation and management of military dining facilities.

Paragraph 1 of the Joint Policy Statement provides that defense appropriations shall be used to accomplish the defense mission. This mission shall be carried out by providing value and accountability to the taxpayers as well as supporting socioeconomic programs to the maximum extent practicable under the law. DoD has a military mission to maintain some level of in-house food service and military dining facility managerial capabilities to enable forward deployment operations, training, rotation, and career progression for military members. Contract services must enable DoD to feed the troops high quality food at a cost effective price.

Paragraph 2 states that “the Secretaries of the Military Departments concerned, as defined in 10 U.S.C. 101(a)(9), shall have the discretion to define requirements (e.g., contract statements of work, assignment of tasks and functions among workers in a facility) and make procurement decisions concerning contracting for military dining support services and the operation of a military dining facility and shall ensure that procurement decisions support the readiness of the Armed Forces.”

Paragraph 3 recommends the enactment of legislation to create a “no-poaching” provision that would maintain contract opportunities current at that time. Section 856 of the NDAA for FY 2007 established the recommended “no-poaching” rule for contracts in effect at the date of enactment of section 856 (October 16, 2006).

Paragraph 4 establishes rules for new contract awards that were not covered by the “no-poaching” rule. Pursuant to subparagraph 4.a., new contracts will be competed under the R-S Act when “the [DoD] solicits a contractor to exercise management responsibility and day-to-day decision making for the overall functioning of a military dining facility, including responsibility for its staff and subcontractors, where the DoD role is generally limited to contract administration functions described in FAR part 42.”

Subparagraph 4.b. provides that “[i]n all other cases, the contracts will be set aside for JWOD performance (or small businesses if there is no JWOD nonprofit agency capable or interested) when [DoD] needs dining support services (e.g., food preparation services, food serving, ordering and inventory of food, meal planning, cashiers, mess attendants, or other services that support the operation of a dining facility) where [DoD] food service specialists exercise management responsibility over and above those contract administration functions described in FAR part 42.”

Subparagraph 4.c. provides that “[t]he presence of military personnel performing dining facility functions does not necessarily establish the inference that the Government is exercising management responsibility over that particular dining facility.”

Paragraph 5 provides that “[i]n accordance with FAR part 8, if dining support services are on or will be placed on the Procurement List, any State licensing agency that is awarded a contract for operation of that military dining facility under the [R-S Act] shall award a subcontract for those services.” DoD has implemented this requirement consistent with FAR clause 52.208-9, Contractor Use of Mandatory Sources of Supply or Services.

Paragraph 6 provides that “[i]n order to promote economic opportunities for blind vendors and to increase the number of blind persons who are self-supporting, the [R-S Act] requires that State licensing agencies provide blind persons with education, training, equipment and initial inventory suitable for carrying out their licenses to operate vending facilities in Federal buildings. Accordingly, through its rule-making procedures, [DoED] will encourage State licensing agencies who assert the [R-S Act] `priority' for a multi-facility contract for operation of military dining facilities to assign at least one blind person per military dining facility in a management role.”

Paragraph 7 provides that “[t]he DOD shall continue to be able to use the ‘Marine Corps model' for regional contracts for operation of military dining facilities at several installations or across State lines. In this model, the DoD may designate individual dining facilities for subcontract opportunities under the Small Business Act, the CFP statute, or other preferential procurement programs, and may designate some facilities in which military food service specialists may train or perform cooking or other dining support services in conjunction with contractor functions. State licensing agencies are eligible under the [R-S Act] to bid on contracts based upon this model.”

Paragraph 8 provides guidance for affording the R-S Act priority. DoD contracts for operation of a military dining facility shall be awarded as the result of full and open competition, unless there is a basis for a non-competitive award to a single source and resulting direct negotiations with that source. When competing such contracts, DoD contracting officers shall give SLAs priority when: (1) The SLA has demonstrated it can provide such operation with food of high quality and at a fair and reasonable price and with food of high quality comparable to that available from other providers of cafeteria services and comparable to the quality and price of food currently provided to military service members; and (2) the SLAs final proposal revision, or initial proposal if award is made without discussions, is among the highly ranked final proposal revisions with a reasonable chance of being selected for award.

Paragraph 8 also provides that “[t]he term `fair and reasonable price' means that the State licensing agency's final proposal revision does not exceed the offer that represents the best value (as determined by the contracting officer after applying the evaluation criteria set forth in the solicitation) by more than five percent of that offer, or one million dollars, whichever is less, over all of the performance periods required by the solicitation.” For the reasons explained in section II.B. below, this dollar limitation is not included in the DFARS.

Paragraph 9 provides that “[t]he contracting officer may award to other than the State licensing agency when the head of the contracting activity determines that award to the State licensing agency would adversely affect the interests of the United States, and the Secretary of Education approves the determination in accordance with the [R-S Act].” DoED has implemented this policy in its regulations (see 34 CFR 395.30).

Paragraph 10 committed the signatory parties to implementing the Joint Policy Statement in complementary regulations.

The proposed rule proposes to amend DFARS 205.207(a) to require that the advertisement of a solicitation for the operation of a military dining facility in the 50 States, the District of Columbia, Puerto Rico, the Commonwealth of the Northern Mariana Islands, American Samoa, Guam, or the U.S. Virgin Islands shall state that the solicitation is subject to the R-S Act.

The rule proposes to amend DFARS 212.301 to add a new paragraph (c)(ii) to state that when issuing a solicitation for the operation of a military dining facility, as defined in 202.101, include in the evaluation criteria, factors or subfactors for determining if the SLA proposal is comparable to the quality and price available from other providers.

The proposed rule adds a new DFARS subpart 237.7X to address contracts for services that support military dining facility operation and contracts for the operation of military dining facilities. The “scope” statement in DFARS 237.7X00 explains that subpart 237.7X provides policy and procedures for soliciting and awarding contracts consistent with the R-S Act, the CFP statute, section 856 of the NDAA for FY 2007, and the Joint Policy Statement.

The definitions in DFARS 202.101 implement the Joint Policy Statement paragraphs 4.a. and 4.b., which identified when a contract is for the operation of a military dining facility as distinguished from “dining support services.” “Mess attendant services” (also known as “dining facility attendant services”) are a subset of “dining support services.” Specifically, the definition of “military dining facility” that was enacted in section 856 of the NDAA for FY 2007 and the definition of “State licensing agency” described in the R-S Act regulations at 34 CFR 395.1(v) are incorporated in the DFARS at 202.101 and 237.7X01, respectively. The proposed rule also defines “operation of a military dining facility,” which is added to DFARS 202.101.

DFARS 237.7X02(a) implements paragraph 4.a. of the Joint Policy Statement by stating that all contracts for the operation of a military dining facility in the 50 States, the District of Columbia, Puerto Rico, the Commonwealth of the Northern Mariana Islands, American Samoa, Guam, or the U.S. Virgin Islands are subject to the R-S Act. By use of the word “all,” DFARS 237.7X02(a) means these contracts are subject to the R-S Act even if the State licensing agency does not submit a proposal. DFARS 237.7X02(a) also implements paragraph 8 of the Joint Policy Statement and states the contracts for operation of a military dining facility shall be awarded using full and open competition (see 10 U.S.C. 2305). DFARS 237.7X02(b) states that contracts for dining support services are subject to the CFP statute, which is exempt from the Competition in Contracting Act (CICA), and provides a cross reference to the implementing procedures at FAR subpart 8.7.

DFARS 237.7X03 provides guidelines for developing evaluation criteria for determining if the State licensing agency proposal is comparable to the quality and price available from other providers.

DFARS 237.7X04 adds a prescription for the proposed solicitation provision at DFARS 252.237-70XX, Operation of a Military Dining Facility. The prescription states that the provision will apply to solicitations, including solicitations using FAR part 12 procedures, for the acquisition of commercial items for operation of a military dining facility within the 50 states, the District of Columbia, Puerto Rico, the Commonwealth of the Northern Mariana Islands, American Samoa, Guam, or the U.S. Virgin Islands.

The solicitation provision at DFARS 252.237-70XX, Operation of a Military Dining Facility, notifies offerors when a solicitation is subject to the R-S Act. The solicitation provision defines “operation of a military dining facility” and other terms necessary for notifying offerors about the applicability of the R-S Act to the solicitation. A State licensing agency will be given priority for award of the contract if it submits an offer that: (1) Demonstrates it can provide the operation with food of high quality and at a fair and reasonable price comparable to that available from other providers, and (2) has been judged to have a reasonable chance of being selected for award pursuant to the evaluation criteria in the solicitation.

In order for a SLA to receive the priority for operation of a cafeteria, 34 CFR 395.33(b) requires that: (1) The SLA's proposal must be within the “competitive range,” and (2) must be ranked among those proposals that have a reasonable chance of being selected for final award.

Under FAR 15.306(c), the “competitive range” is established for the purpose of identifying those offerors with whom the procuring agency will open discussions. If discussions are to be conducted, CICA (see 10 U.S.C. 2305) requires that the procuring agency shall conduct discussions with all responsible offerors who submitted proposals determined to be in the competitive range, but as previously stated, inclusion in the competitive range is not sufficient to trigger the R-S Act priority for an SLA proposal. The SLA's proposal must also have a reasonable chance of selection for final award.

As a result, and as required by CICA and 34 CFR 395.33, each DoD solicitation for operation of a military dining facility must state its own evaluation criteria and basis for award independently derived for that individual location and acquisition. The solicitation will specify the means by which the statutory priority will be afforded to the SLA's proposal, if it satisfies the evaluation criteria, the statement of work, and the requirements of the solicitation. Because each solicitation must be developed independently, the DFARS will not arbitrarily establish a price limitation that would apply to all solicitations.

This rule proposes to create a new provision, DFARS 252.237-70XX, Operation of a Military Dining Facility, to notify offerors when a solicitation is subject to the R-S Act. The R-S Act is not a covered law under 41 U.S.C. 1905-1907, because it was enacted prior to October 13, 1994. Therefore, 41 U.S.C. 1905-1907 do not exempt solicitations and contracts at or below the simplified acquisition threshold and for the acquisition of commercial items from the provisions of the R-S Act.

Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is a significant regulatory action and, therefore, was subject to review under section 6(b) of E.O. 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.

DoD does not expect this proposed rule to have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601 et seq. However, an initial regulatory flexibility analysis has been performed and is summarized as follows:

The proposed rule will provide policy and procedures for soliciting and awarding contracts for the operation of a dining facility on a military installation pursuant to: (1) The Randolph-Sheppard Act (R-S Act); (2) the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2007; (3) the Joint Report and Policy Statement issued pursuant to the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2006; and (4) the Committee for Purchase from People Who Are Blind or Severely Disabled (CFP) statute (41 U.S.C. 8501, et seq.).

The objective of the proposed rule is to amend the Defense Federal Acquisition Regulation Supplement (DFARS) to clarify the application of the R-S Act and the CFP statute, formerly known as the Javits-Wagner-O'Day (JWOD) Act, to the operation and management of military dining facilities.

The R-S Act and the CFP statute have priority over the Small Business Act; therefore, the proposed rule has the potential to impact small businesses that provide these services. A review of contract awards and purchase orders in the Federal Procurement Data System for the period fiscal year 2011 through June 1, 2015, revealed that DoD made five new awards, including one purchase order, for dining services to five unique vendors. Of those awards, one award was made to a small business concern. Therefore, this proposed rule is not anticipated to impact a significant number of small entities.

The proposed rule does not impose any new reporting, recordkeeping, or other information collection requirements. The proposed rule is consistent with the DoED regulations that implement the R-S Act (see 34 CFR 395.1, et seq.).

Concerning dining support services (including mess attendant services), contracting officers shall follow the standard Federal Acquisition Regulation (FAR) subpart 8.7 and DFARS subpart 208.7 procedures for procuring dining support services pursuant to the CFP statute and, if applicable, the FAR part 19 and DFARS part 219 rules for small business set-asides.

Concerning the R-S Act priority for operation of a military dining facility, the proposed rule requires full and open competition. Competition is the best alternative for minimizing the impact on small entities.

DoD will consider comments from small entities concerning the existing regulations in subparts affected by this proposed rule in accordance with 5 U.S.C. 610. Interested parties must submit such comments separately and should cite 5 U.S.C. 610 (DFARS Case 2015-D012), in correspondence.

The proposed rule does not contain any information collection requirements that require the approval of the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35).

Therefore, 48 CFR parts 202, 205, 212, 237, and 252 are proposed to be amended as follows:

The additions read as follows:

The U.S. Atlantic swordfish fishery is managed under the 2006 Consolidated Highly Migratory Species (HMS) Fishery Management Plan (FMP). Implementing regulations at 50 CFR part 635 are issued under the authority of the Magnuson-Stevens Act, 16 U.S.C. 1801 et seq., and ATCA, 16 U.S.C. 971 et seq. ATCA authorizes the Secretary of Commerce (Secretary) to promulgate regulations, as may be necessary and appropriate, to implement ICCAT recommendations.

At the 2013 ICCAT annual meeting, Recommendation 13-02 was adopted, maintaining the North Atlantic swordfish total allowable catch (TAC) of 10,301 metric tons (mt) dressed weight (dw) (13,700 mt whole weight (ww)) through 2016. Of this TAC, the United States' baseline quota is 2,937.6 mt dw (3,907 mt ww) per year. ICCAT Recommendation 13-02 also includes an 18.8 mt dw (25 mt ww) annual quota transfer from the United States to Mauritania and limits underharvest carryover to 15 percent of a contracting party's baseline quota. Therefore, the United States may carry over a maximum of 440.6 mt dw (586.0 mt ww) of underharvest from 2015 to 2016. This proposed rule would establish the U.S. adjusted quota for the 2016 fishing year to account for the annual quota transfer to Mauritania and the 2015 underharvest.

The preliminary estimate of North Atlantic swordfish underharvest for 2015 was 2,181.6 mt dw as of December 31, 2015; therefore, NMFS is proposing to carry forward 440.6 mt dw, the maximum carryover allowed under Recommendation 13-02. The 2,937.6 mt dw baseline quota would be reduced by the 18.8 mt dw annual quota transfer to Mauritania and increased by the underharvest carryover of 440.6 mt dw, resulting in a proposed adjusted North Atlantic swordfish quota for the 2016 fishing year of 3,359.4 mt dw (2,937.6−18.8 + 440.6 = 3,359.4 mt dw). From that proposed adjusted quota, 50 mt dw would be allocated to the reserve category for inseason adjustments and research, and 300 mt dw would be allocated to the incidental category, which includes recreational landings and landings by incidental swordfish permit holders, in accordance with regulations at 50 CFR 635.27(c)(1)(i). This would result in an allocation of 3,009.4 mt dw (3,359.4−50−300 = 3,009.4 mt dw) for the directed category, which would be split equally between two seasons in 2016 (January through June, and July through December) (Table 1).

The preliminary landings used to calculate the proposed adjusted quota for North Atlantic swordfish are based on commercial dealer reports and reports by anglers in the HMS Non-Tournament Recreational Swordfish and Billfish Landings Database and the Recreational Billfish Survey received as of December 31, 2015, and do not include dead discards or late landings reports. The estimates are preliminary and have not yet undergone quality control and assurance procedures. NMFS will adjust the quotas in the final rule based on updated data, including dead discard data, if available. Note that the United States has carried over the full amount of underharvest allowed under ICCAT recommendations for the past several years and NMFS does not expect fishing activity to vary significantly from these past years. For the final adjusted quota to deviate from the proposed quota, the sum of updated landings data (from late reports) and dead discard estimates would need to reach or exceed 1,741.0 mt dw, which is the difference between the current estimate of the 2015 underharvest (2,181.6 mt dw) and the maximum carryover cap of 440.6 mt dw (2,181.6−440.6 = 1,741.0 mt dw). In 2013 (the most recent year of dead discard data), dead discards were estimated to equal 90.2 mt dw and late reports equaled 143.0 mt dw. Consequently, NMFS does not believe updated data and dead discard estimates would alter the proposed adjusted quota. Thus, while the 2016 proposed North Atlantic swordfish quota is subject to further adjustments and this rule notifies the public of that potential change, NMFS does not expect the final quota to change from the proposed quota on this basis.

For clarity, the proposed rule would remove extraneous regulatory text about the percentage of the annual baseline quota allocation that may be carried over in a given year. Under prior ICCAT recommendations, 25 percent of the unused annual baseline could be carried over to the subsequent year. ICCAT Recommendation 13-02 changed the allowable carryover to 15 percent from 2015 on. The proposed change would simplify the regulatory text by removing the reference to the 25 percent carryover allowance.

In 2013, ICCAT Recommendation 13-03 established the South Atlantic swordfish TAC at 11,278.2 mt dw (15,000 mt ww) for 2014, 2015, and 2016. Of this, the United States receives 75.2 mt dw (100 mt ww). Recommendation 13-03 limits the amount of South Atlantic swordfish underharvest that can be carried forward, and the United States may carry forward up to 100 percent of its baseline quota (75.2 mt dw). Recommendation 13-03 also included a total of 75.2 mt dw (100 mt ww) of quota transfers from the United States to other countries. These transfers were 37.6 mt dw (50 mt ww) to Namibia, 18.8 mt dw (25 mt ww) to Côte d'Ivoire, and 18.8 mt dw (25 mt ww) to Belize.

In 2015, U.S. fishermen landed no South Atlantic swordfish according to data available as of December 31, 2015. The adjusted 2015 South Atlantic swordfish quota was 75.1 mt dw due to nominal landings in previous years. Therefore, 75.1 mt dw of underharvest is available to carry over to 2016. NMFS is proposing to carry forward 75.1 mt dw to be added to the 75.2 mt dw baseline quota. The quota would then be reduced by the 75.2 mt dw of annual international quota transfers outlined above, resulting in an adjusted South Atlantic swordfish quota of 75.1 mt dw for the 2016 fishing year.

As with the landings and proposed quota for North Atlantic swordfish, the South Atlantic swordfish landings and proposed quota are based on dealer reports received as of December 31, 2015, do not include dead discards or late landings reports, and are preliminary landings estimates that have not yet undergone quality control and assurance procedures. NMFS will adjust the quotas in the final rule based on any updated data, including dead discard data, if available. Thus, the 2016 proposed South Atlantic swordfish quota is subject to further adjustments. However, the United States has only landed South Atlantic swordfish twice in the past several years (0.2 mt dw in April 2010 and 0.1 mt dw in April 2013) and therefore does not anticipate additional landings or discard data that would change the final quota from the proposed quota.

In the past, NMFS annually has published proposed swordfish quota specifications, allowed for a public comment period, and then issued a final rule. We have done this whether we are adopting new quotas/otherwise altering conservation and management measures pursuant to an ICCAT recommendation or simply adjusting the swordfish quotas based on formulas or measures codified in regulations adopted through notice-and-comment rulemaking (see, e.g., regulatory text at 50 CFR 635.27(c)). Where NMFS is simply administering a pre-established formula that is already embodied in regulations, it has limited discretion over implementation. Inviting public notice and comment on these actions may have unnecessarily confused the regulated community, who has not understood the scope of these actions and our limited discretion to make changes to the quota in these situations. Thus, past public comments have included requests that go well beyond the scope of these actions, including suggestions to carry over underharvests in an amount exceeding the carryover limit, which would be inconsistent with ICCAT recommendations; requests not to carry over any underharvests, which would be inconsistent with the established regulatory formulas; and requests to shut down the commercial swordfish fishery.

To address public confusion and streamline the regulatory process, NMFS notifies the public that it intends to annually adjust the North and South Atlantic swordfish quotas through a final rule without an opportunity for public comment, as appropriate, when such adjustments simply apply a previously-adopted formula and are administrative in nature. NMFS would take such action consistent with requirements of the Administrative Procedure Act.

The proposed North Atlantic swordfish quota adjustments would result in an adjusted quota for 2016 substantially similar to that analyzed in the 2012 EA, RIR, and FRFA and implemented in 2013 and 2014, and is the same as the adjusted quota implemented in 2015. The quota analyzed in the 2012 EA, RIR, and FRFA was 3,559.2 mt dw and the proposed 2016 adjusted quota is 3,359.4 mt dw; a decrease of 199.8 mt dw. The 2016 North Atlantic swordfish proposed quota is not expected to increase fishing effort, protected species interactions, or environmental effects in a manner not considered in the 2012 EA and would, in fact, cap the quota at a level slightly lower than that analyzed in the 2012 EA and thus likely have fewer environmental effects or protected species interactions.

The 2016 proposed quota differs slightly from that quota analyzed in the 2012 EA for two reasons. First, Recommendation 13-02 reduces the underharvest carryover limit beginning in 2015 from 25 percent of the base quota to 15 percent. In the 2012 EA, the analysis took into account North Atlantic Swordfish underharvest carryovers of up to 25 percent. Since the lower underharvest carryover limit is within this range (i.e., it is less than 25 percent), the quota that would be implemented consistent with the reduced carryover provision has been previously analyzed. Furthermore, once effective, the reduced underharvest carryover limit would result in a lower overall North Atlantic swordfish adjusted quota.

The second reason the 2012 quota is different than the 2016 proposed adjusted quota is Recommendation 13-02's elimination of the 112.8 mt dw quota transfer to Morocco and the introduction of a lower 18.8 mt dw quota transfer to Mauritania. No additional NEPA analysis is needed for the change in international quota transfers because—in concert with the reduction in the underharvest carryover limit—these changes are not expected to increase fishing effort, affect protected species interactions, or environmental effects beyond those considered in the existing NEPA analyses. Thus, NMFS has determined that the North Atlantic swordfish quota portion of the specifications and impacts to the human environment as a result of the proposed quota adjustments do not require additional NEPA analysis beyond that discussed in the 2012 EA.

Similarly, NMFS analyzed—in the EA, RIR, and FRFA that were prepared for the 2007 Swordfish Quota Specification Final Rule (October 5, 2007; 72 FR 56929)—the impacts of harvesting the same amount of annual baseline quota being proposed here in the 2016 South Atlantic swordfish specifications. The proposed South Atlantic swordfish quota adjustments would not change overall quotas and are not expected to increase fishing effort, protected species interactions, or environmental effects beyond those analyzed in the 2007 EA. While ICCAT SCRS conducted a stock assessment for South Atlantic swordfish in 2013, that assessment did not alter the stock status or TAC from when 2007 EA analyses were conducted and no additional information about the environment has become available that would alter the analyses. Therefore, because there would be no changes to the South Atlantic swordfish management measures in this proposed rule, and no changes to the affected environment or any environmental effects that have not been previously analyzed, NMFS has determined that the South Atlantic swordfish quota portion of the specifications and impacts to the human environment as a result of the proposed quota adjustments do not require additional NEPA analysis beyond that analyzed in the 2007 EA.

NMFS is requesting comments on any of the measures or analyses described in this proposed rule. During the comment period, NMFS will hold one conference call and webinar for this proposed rule. The conference call and webinar will be held on June 29, 2016, from 2:00-4:00 p.m. EST. Please see the DATES and ADDRESSES headings for more information.

The public is reminded that NMFS expects participants on phone conferences to conduct themselves appropriately. At the beginning of the conference call, a representative of NMFS will explain the ground rules (e.g., all comments are to be directed to the agency on the proposed action; attendees will be called to give their comments in the order in which they registered to speak; each attendee will have an equal amount of time to speak; attendees may not interrupt one another; etc.). NMFS representative(s) will structure the meeting so that all attending members of the public will be able to comment, if they so choose, regardless of the controversial nature of the subject(s). Attendees are expected to respect the ground rules, and those that do not may be removed from the conference call.

Pursuant to the Magnuson-Stevens Act, the NMFS Assistant Administrator has determined that the proposed rule is consistent with the 2006 Consolidated HMS FMP and its amendments, other provisions of the Magnuson-Stevens Act, the Atlantic Tuna Convention Act, and other applicable law, subject to further consideration after public comment.

This proposed rule has been determined to be not significant for purposes of Executive Order 12866.

Previously, NMFS determined that proposed rules to implement the North Atlantic swordfish quota framework (77 FR 25669, May 1, 2012) and South Atlantic swordfish quota framework (75 FR 35432, June 22, 2010) were consistent to the maximum extent practicable with the enforceable policies of the approved coastal management program of coastal states on the Atlantic, including the Gulf of Mexico and the Caribbean Sea. Pursuant to 15 CFR 930.41(a), NMFS provided the Coastal Zone Management Program of each coastal state a 60-day period to review the consistency determination and to advise the Agency of their concurrence. NMFS received concurrence with the consistency determinations from several states and inferred consistency from those states that did not respond within the 60-day time period. This proposed action to establish the 2016 North and South Atlantic swordfish quotas does not change the framework previously consulted upon; therefore, no additional consultation is required.

The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration that this proposed rule, if adopted, would not have a significant economic impact on a substantial number of small entities because the proposed quota adjustments are largely the same as in previous years and the United States is not expected to catch its entire quota in 2016.

As described above, this proposed rule would adjust the 2016 baseline quota for North Atlantic swordfish (January 1, 2016, through December 31, 2016) to account for 2015 underharvests, as allowable, and international quota transfers per § 635.27(c)(1)(i) and (c)(3)(ii) based on ICCAT Recommendation 13-02. The United States can carry over 2015 underharvest at a level not to exceed 15 percent of its baseline quota. Additionally, ICCAT Recommendation 13-02 stipulates that the United States transfer 18.8 mt dw (25 mt ww) of quota to Mauritania.

In 2015, U.S. fishermen landed 1,177.8 mt dw of North Atlantic swordfish as of December 31, 2015, leaving 2,181.6 mt dw of quota underharvest. This underharvest amount exceeds the maximum underharvest carryover of 440.6 mt dw; therefore, only the maximum amount of 440.6 mt dw of 2015 underharvest would be carried over and added to the 2016 baseline quota. The quota transfer of 18.8 mt dw to Mauritania would be deducted, leaving a proposed 2016 North Atlantic swordfish adjusted quota of 3,359.4 mt dw (Table 1).

This proposed rule would also adjust the 2016 baseline quota for South Atlantic swordfish (January 1, 2016, through December 31, 2016) to account for 2015 underharvests and international quota transfers per § 635.27(c)(1)(ii) and (c)(3)(ii) based on ICCAT Recommendation 13-03. The United States can carry over 2015 underharvest at a level not to exceed 100 percent of the baseline quota. Additionally, ICCAT Recommendation 13-03 stipulates that the United States transfer the following quota amounts to other countries: 37.6 mt dw (50 mt ww) to Namibia; 18.8 mt dw (25 mt ww) to Côte d'Ivoire; and 18.8 mt dw (25 mt ww) to Belize.

In 2015, U.S. fishermen landed no South Atlantic swordfish according to data available as of December 31, 2015. The adjusted 2015 South Atlantic swordfish quota was 75.1 mt dw due to nominal landings in previous years. Therefore, 75.1 mt dw of underharvest is available to carry over to 2016. NMFS is proposing to carry forward 75.1 mt dw to be added to the 75.2 mt dw baseline quota. The quota would then be reduced by the 75.2 mt dw of annual international quota transfers outlined above, resulting in an adjusted South Atlantic swordfish quota of 75.1 mt dw for the 2016 fishing year. (Table 1).

The commercial swordfish fishery is comprised of fishermen who hold one of three swordfish limited access permits (LAPs) (i.e., directed, incidental, or handgear), fishermen who hold a swordfish general commercial permit, fishermen who hold an HMS incidental squid trawl permit, fishermen who hold a commercial Caribbean small boat permit, and the related industries, including processors, bait houses, and equipment suppliers. As of October 2015, there were approximately 188 vessels with a directed swordfish LAP, 72 vessels with an incidental swordfish LAP, 83 vessels with a handgear LAP for swordfish, and 651 vessels that held a swordfish general commercial permit. Additionally, there were approximately 66 HMS incidental squid trawl permit holders, which allow vessels in the Illex squid fishery to retain up to 15 incidentally-caught swordfish while trawling for squid. A total of 20 Caribbean small boat permits were issued in 2015 as of October 2015; however, 14 of these were held by vessels in Florida where the permit is not valid. NMFS considers all participants in the commercial swordfish fishery to be small entities, based on the relevant North American Industry Classification System (NAICS) codes and size standards set by the Small Business Administration (SBA).

The Small Business Administration has established size criteria for all major industry sectors in the U.S. including fish harvesters. A business involved in fish harvesting is classified as a “small business” if it is independently owned and operated, is not dominant in its field of operation (including its affiliates), and has combined annual receipts (revenue) not in excess of $20.5 million (NAICS code 114111, finfish fishing) for all its affiliated operations worldwide. NAICS is the North American Industry Classification System, a standard system used by business and government to classify business establishments into industries, according to their economic activity. The United States government developed NAICS to collect, analyze, and publish data about the economy. In addition, the Small Business Administration (SBA) has defined a small charter/party boat entity (NAICS code 487210, for-hire) as one with average annual receipts (revenue) of less than $7.5 million.

On December 29, 2015, NMFS published a final rule (80 FR 81194; December 29, 2015) to establish a single small business size standard for commercial fishing businesses (NAICS 11411) of $11 million for RFA compliance purposes only. NMFS has chosen to delay the effective date of the rule to establish a small business size until July 1, 2016. Given the length of the regulatory development process, NMFS is considering this size standard for small entities for this proposed rule given that the final rule may occur after the July 1, 2016 effective date. The new size standards do not affect analyses prepared for this action.

This action is not expected to result in a significant economic impact on the small entities subject to the quota limits. Based on the 2015 average price for swordfish of $4.07/lb (based on 2015 electronic dealer data), the 2016 North and South Atlantic swordfish baseline quotas could result in gross revenues of $26,358,268 (2,937.6 mt dw (6,476,233 lbs dw) * $4.07/lb) and $674,749 (75.2 mt dw (165,786 lbs dw) * $4.07/lb), respectively, if the quotas were fully utilized. Under the adjusted quotas of 3,359.4 mt dw (7,406,133 lbs dw) for North Atlantic swordfish and 75.1 mt dw (165,565 lbs dw) for South Atlantic swordfish, the gross revenues could be $30,142,961 and $673,850, respectively, for fully utilized quotas.

Potential revenues per vessel resulting from full utilization of the adjusted quotas could be $27,910 for the North Atlantic swordfish fishery and $3,584 for the South Atlantic swordfish fishery, considering a total of 1,080 swordfish permit holders in the North Atlantic and 188 directed permit holders that can harvest South Atlantic swordfish (only limited access directed swordfish permit holders may retain South Atlantic swordfish). The North Atlantic estimate, however, represents an average across all permit types, despite permit differences in retention limits, target species, and geographical range. For North Atlantic swordfish, directed swordfish permit holders would likely experience higher than average per-vessel ex-vessel revenues due to the use of pelagic longline gear and the lack of a per-trip retention limit, although trip expenses are likely to be relatively high. HMS incidental squid trawl permit holders would likely experience per vessel ex-vessel revenues well below those received by pelagic longline vessels due to the low retention limit per trip (15 swordfish) and because these vessels do not target swordfish and only catch them incidentally. Swordfish general commercial permit holders would likely experience lower than average per-vessel ex-vessel revenues, despite higher ex-vessel prices and lower fishing expenses. Although the proposed 2016 North Atlantic swordfish adjusted quota is 199.8 mt dw lower than the quota analyzed in the 2012 EA, U.S. fishermen in recent years have not harvested the full North Atlantic swordfish quota. Thus, the 199.8 mt dw change in the total adjusted quota is unlikely to cause any economic impacts since that portion of the quota will likely be unutilized. In the future, if the North Atlantic swordfish fishery achieves full quota utilization, economic impacts will need to be reanalyzed. For South Atlantic swordfish, only directed swordfish permit holders can land these fish; therefore, potential revenue per vessel is higher than the average for these directed swordfish permit holders since the other permit types may not land swordfish. However, U.S. fishermen rarely catch South Atlantic swordfish. Over the past 6 years, 0.3 mt dw of South Atlantic swordfish catch has been reported. The proposed 2016 South Atlantic swordfish adjusted quota is unchanged from that analyzed in the 2007 EA, thus, no new economic impacts are expected.

Because the United States' commercial swordfish fishery is not expected to catch its entire quota in 2016, the adjustments to the quota and management measures proposed in this rule will not have a significant impact on a substantial number of small entities. As a result, no initial regulatory flexibility analysis is required, and none has been prepared.

For reasons set out in the preamble, 50 CFR part 635 is proposed to be amended as follows: