Federal Register Vol. 81, No.214,

Table of Contents I. Authority and Background II. Synopsis of the Notice of Proposed Rulemaking III. Discussion A. Scope of Applicability B. Proposed Amendment to Approach for Determining Lifetime C. Effective and Compliance Dates IV. Procedural Issues and Regulatory Review A. Review Under Executive Order 12866 B. Review Under the Regulatory Flexibility Act C. Review Under the Paperwork Reduction Act of 1995 D. Review Under the National Environmental Policy Act of 1969 E. Review Under Executive Order 13132 F. Review Under Executive Order 12988 G. Review Under the Unfunded Mandates Reform Act of 1995 H. Review Under the Treasury and General Government Appropriations Act, 1999 I. Review Under Executive Order 12630 J. Review Under Treasury and General Government Appropriations Act, 2001 K. Review Under Executive Order 13211 L. Review Under Section 32 of the Federal Energy Administration Act of 1974 V. Public Participation A. Submission of Comments B. Issues on Which DOE Seeks Comment VI. Approval of the Office of the Secretary I. Authority and Background

Title III of the Energy Policy and Conservation Act of 1975 (42 U.S.C. 6291, et seq.; “EPCA” or “the Act”) sets forth a variety of provisions designed to improve energy efficiency.1 Part B of title III, which for editorial reasons was redesignated as Part A upon incorporation into the U.S. Code (42 U.S.C. 6291-6309, as codified), establishes the “Energy Conservation Program for Consumer Products Other Than Automobiles.” These consumer products include integrated light-emitting diode (LED) lamps, the subject of this notice of proposed rulemaking (NOPR).

Under EPCA, the energy conservation program consists essentially of four parts: (1) Testing, (2) labeling, (3) Federal energy conservation standards, and (4) certification and enforcement procedures. The testing requirements consist of test procedures that manufacturers of covered products must use as the basis for (1) certifying to DOE that their products comply with the applicable energy conservation standards adopted under EPCA (42 U.S.C. 6295(s)), and (2) making representations about the energy use or efficiency of those products (42 U.S.C. 6293(c)). Similarly, DOE must use these test procedures to determine whether the products comply with any relevant standards promulgated under EPCA. (42 U.S.C. 6295(s))

Under 42 U.S.C. 6293, EPCA sets forth the criteria and procedures DOE must follow when prescribing or amending test procedures for covered products. EPCA provides, in relevant part, that any test procedures prescribed or amended under this section shall be reasonably designed to produce test results which measure energy efficiency, energy use or estimated annual operating cost of a covered product during a representative average use cycle or period of use and shall not be unduly burdensome to conduct. (42 U.S.C. 6293(b)(3))

In addition, if DOE determines that a test procedure amendment is warranted, it must publish proposed test procedures and offer the public an opportunity to present oral and written comments on them. (42 U.S.C. 6293(b)(2)) Finally, in any rulemaking to amend a test procedure, DOE must determine to what extent, if any, the proposed test procedure would alter the measured energy efficiency of any covered product as determined under the existing test procedure. (42 U.S.C. 6293(e)(1)) If DOE determines that the amended test procedure would alter the measured efficiency of a covered product, DOE must amend the applicable energy conservation standard accordingly. (42 U.S.C. 6293(e)(2))

DOE published a final rule in the Federal Register on July 1, 2016 (hereafter the “July 2016 LED TP final rule”), which adopted test procedures for integrated LED lamps in Appendix BB to support the implementation of labeling provisions by the Federal Trade Commission, as well as the ongoing general service lamps rulemaking, a category of lamps that includes LED lamps. 81 FR at 43404. In this notice, DOE proposes to amend the test procedures for integrated LED lamps.

In this NOPR, DOE proposes to amend the test procedures for integrated LED lamps with regard to the time to failure test method. Based on stakeholder feedback since the publication of the July 2016 LED TP final rule, DOE is proposing to allow time to failure measurements collected for DOE's LED lamps test procedure to be taken at elevated temperatures.

Any amended test procedure adopted in this rulemaking will be effective as the applicable DOE test procedure beginning 30 days after publication of a final rule in the Federal Register. Representations of energy use or energy efficiency must be based on testing in accordance with this rulemaking, if adopted, beginning 180 days after the publication of a test procedure final rule. DOE notes that testing done in accordance with the current test procedure would also be in accordance with the amended test procedure proposed here.

EPCA defines an LED as a p-n junction 2 solid-state device, the radiated output of which, either in the infrared region, visible region, or ultraviolet region, is a function of the physical construction, material used, and exciting current of the device. (42 U.S.C. 6291(30)(CC)) In the July 2016 LED TP final rule, DOE stated that the rulemaking applied to LED lamps that met DOE's adopted definition of an integrated LED lamp, which was based on the term as defined by ANSI/IES RP-16-2010, “Nomenclature and Definitions for Illuminating Engineering,” and adopted as follows:

Integrated light-emitting diode lamp means an integrated LED lamp as defined in ANSI/IES RP-16 (incorporated by reference; see § 430.3).

The ANSI/IES standard defines an integrated LED lamp as an integrated assembly that comprises LED packages (components) or LED arrays (modules) (collectively referred to as an LED source), an LED driver, an ANSI standard base, and other optical, thermal, mechanical and electrical components (such as phosphor layers, insulating materials, fasteners to hold components within the lamp together, and electrical wiring). The LED lamp is intended to connect directly to a branch circuit through a corresponding ANSI standard socket. 81 FR 43403, 43405 (July 1, 2016). This NOPR proposes to amend the test procedures for integrated LED lamps.

In the July 2016 LED TP final rule, DOE adopted test procedures, located in appendix BB to subpart B of 10 CFR part 430, for measuring and projecting time to failure of LED lamps based on lumen maintenance data. The adopted test procedures were largely based on the industry standards IES LM-84-14, “Approved Method: Measuring Luminous Flux and Color Maintenance of LED Lamps, Light Engines, and Luminaires,” and IES TM-28-14, “Projecting Long-Term Luminous Flux Maintenance of LED Lamps and Luminaires,” for the applicable lumen maintenance measurements and time to failure projection methods, with some modifications. 81 FR 43403, 43427-43428 (July 1, 2016). IES LM-84-14 provides a method for lumen maintenance measurement of integrated LED lamps and specifies the operational and environmental conditions during testing such as operating cycle, ambient temperature, airflow, and orientation. Lumen maintenance is the measure of lumen output after an elapsed operating time, expressed as a percentage of the initial lumen output. IES TM-28-14 provides methods for projecting the lumen maintenance of integrated LED lamps depending on the available data and test duration. The provided methods include projecting time to failure using multiple lumen maintenance measurements collected over a period of time, rather than a single measurement at the end of the test duration. 81 FR at 43409 (July 1, 2016). The adopted test procedure requires that the projection calculation be completed for each individual LED lamp and the projected time to failure values then be used to calculate the lifetime of the sample using the prescribed methods. 81 FR at 43414 (July 1, 2016). The lumen maintenance measurements used in the projection are to be taken at an ambient temperature of 25 °C ± 5 °C.

Since the publication of the July 2016 LED TP final rule, DOE received a request from the National Electrical Manufacturers Association (NEMA) to approve the use of test results from the Elevated Temperature Life Test 3 contained in the ENERGY STAR Program Requirements Product Specification for Lamps (Light Bulbs) Eligibility Criteria Version 2.0 (hereafter “ENERGY STAR Lamps Specification V2.0”) 4 in place of the test method for measuring lumen maintenance and time to failure in DOE's LED lamps test procedure in order to reduce test burden. NEMA asserted that because the test conditions from the Elevated Temperature Life Test are more stringent, the test results, if any different, would be more conservative than if the lamps were tested according to the current DOE LED lamps test procedure. (NEMA, No. 48 at p. 1).

DOE agrees that the operating temperature test conditions specified in the ENERGY STAR Elevated Temperature Life Test will more negatively affect performance values than those prescribed in DOE's LED lamps test procedure since the Elevated Temperature Life Test requires testing of LED lamps at higher ambient temperatures. Specifically, the Elevated Temperature Life Test requires directional lamps with rated wattages less than or equal to 20 W to be tested at 45 °C ± 5 °C; directional lamps with rated wattages greater than 20 W to be tested at 55 °C ± 5 °C; and all other omnidirectional and decorative lamps to be tested at 45 °C ± 5 °C. DOE's test procedure requires operating temperature to be maintained at 25 °C ± 5 °C. The Elevated Temperature Life Test applies only to lamps that do not have a “not for use in totally enclosed or recessed luminaires” statement (or an equivalent statement) on the lamp label.

In addition to a difference in ambient temperature during lumen maintenance testing, ENERGY STAR's and DOE's test procedures also differ in how to determine the value of lifetime. ENERGY STAR's test procedure provides a method to confirm a manufacturer-declared lifetime value. It requires manufacturers to meet or exceed minimum lumen maintenance values at a specific test duration to be able to claim a certain maximum lifetime. For example, for a lamp to be certified with a lifetime of 25,000 hours, that lamp must achieve a minimum lumen maintenance of 91.8% after 6,000 hours of operation. DOE's test procedure for determining lifetime depends on the time to failure of individual units, which is determined by taking lumen maintenance measurements at multiple intervals and then calculating the time to failure. For example, after 6,000 hours of testing, manufacturers can use the specified method to project a lamp's time to failure value to be up to 36,000 hours. Lifetime is then determined by calculating the median time to failure of the sample (calculated as the arithmetic mean of the time to failure of the two middle sample units when the numbers are sorted in value order). This is consistent with the statutory definition of lifetime, which is described as the length of operating time of a statistically large group of lamps between first use and failure of 50 percent of the group. 42 U.S.C. 6291(30)(P).

To maintain consistency with the statutory definition of lifetime, DOE is not allowing for an entire substitution of the ENERGY STAR lifetime test procedure in place of DOE's time to failure measurements. Instead, DOE is proposing in this NOPR to amend section 4.4.4 of appendix BB to allow time to failure testing to be conducted at elevated temperatures above the current requirement, which stipulates to maintain ambient operating temperature at 25 °C ± 5 °C. Manufacturers would then have the flexibility to conduct the Elevated Temperature Life Test for ENERGY STAR, while also following the calculation method for DOE's LED lamps test procedure, and avoid test duplication. LED lamps are sensitive to changes in ambient temperature, generally performing less favorably at higher temperatures. DOE believes this proposed change will result in, if any difference, more conservative representations of lifetime.

DOE requests comment on the proposed amendment to the integrated LED lamps test procedure to allow testing for time to failure, as prescribed in section 4 of appendix BB to subpart B of 10 CFR part 430, to be conducted at elevated temperatures.

If adopted, the effective date for the proposed test procedure amendments would be 30 days after publication of the final rule in the Federal Register. Pursuant to EPCA, manufacturers of covered products must use the test procedure as the basis for determining that their products comply with any applicable energy conservation and for making representations about the efficiency of those products. (42 U.S.C. 6293(c); 42 U.S.C. 6295(s)) For those energy efficiency or consumption metrics covered by the DOE test procedure, manufacturers must make representations in accordance with the DOE test procedure beginning 180 days after publication of the final rule in the Federal Register.

The Office of Management and Budget (OMB) has determined that test procedure rulemakings do not constitute “significant regulatory actions” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, 58 FR 51735 (Oct. 4, 1993). Accordingly, this action was not subject to review under the Executive Order by the Office of Information and Regulatory Affairs (OIRA) in the OMB.

The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires preparation of an initial regulatory flexibility analysis (IRFA) for any rule that by law must be proposed for public comment, unless the agency certifies that the rule, if promulgated, will not have a significant economic impact on a substantial number of small entities. As required by Executive Order 13272, “Proper Consideration of Small Entities in Agency Rulemaking,” 67 FR 53461 (August 16, 2002), DOE published procedures and policies on February 19, 2003 to ensure that the potential impacts of its rules on small entities are properly considered during the DOE rulemaking process. 68 FR 7990. DOE has made its procedures and policies available on the Office of the General Counsel's Web site: http://energy.gov/gc/office-general-counsel.

DOE reviewed the amended test procedures for LED lamps proposed in this NOPR under the provisions of the Regulatory Flexibility Act (RFA) and the procedures and policies published on February 19, 2003. DOE certifies that the proposed rule, if adopted, would not have a significant economic impact on a substantial number of small entities. The factual basis for this certification is set forth in the following paragraphs.

The Small Business Administration (SBA) considers a business entity to be a small business, if, together with its affiliates, it employs less than a threshold number of workers specified in 13 CFR part 121. These size standards and codes are established by the North American Industry Classification System (NAICS). Manufacturing of LED lamps is classified under NAICS 335110, “Electric Lamp Bulb and Part Manufacturing.” The SBA sets a threshold of 1,250 employees or less for an entity to be considered as a small business for this category.

To estimate the number of companies that could be small businesses that sell LED lamps covered by this rulemaking, DOE conducted a market survey using publicly available information. DOE's research involved information from the Environmental Protection Agency's ENERGY STAR Certified Light Bulbs Database,5 LED Lighting Facts Database,6 previous rulemakings, individual company Web sites, SBA's database, and market research tools (e.g., Hoover's reports). DOE screened out companies that did not meet the definition of a “small business” or are completely foreign owned and operated. DOE identified approximately seven small businesses that maintain domestic production facilities for the integrated LED lamps covered by this rulemaking.

DOE notes that this proposed rule merely seeks to amend the existing LED test procedure in a way that would reduce test burden on manufacturers. The proposed amendment would reduce the instances in which two tests for lifetime must be conducted for the same lamp. In addition, the proposal is supported by industry, including NEMA. Manufacturers that would seek to test time to failure at elevated temperatures under the proposed amendment, if adopted, are likely to have previously accounted for testing costs associated with the ENERGY STAR program as these measurements are required to be reported to ENERGY STAR if manufacturers certify the lamps as meeting the program requirements. For manufacturers who do not test products at elevated temperatures, this proposed amendment presents no additional burden.

For these reasons, DOE tentatively concludes and certifies that the proposed amendment in this NOPR would not have a significant economic impact on a substantial number of small entities, and the preparation of an IRFA is not warranted. DOE will transmit the certification and supporting statement of factual basis to the Chief Counsel for Advocacy of the SBA for review under 5 U.S.C. 605(b).

Manufacturers of LED lamps must certify to DOE that their products comply with any applicable energy conservation standards. To certify compliance, manufacturers must first obtain test data for their products according to the DOE test procedures, including any amendments adopted for those test procedures. DOE has established regulations for the certification and recordkeeping requirements for all covered consumer products and commercial equipment, including LED lamps. (See generally 10 CFR part 429.) The collection-of-information requirement for the certification and recordkeeping is subject to review and approval by OMB under the Paperwork Reduction Act (PRA). This requirement has been approved by OMB under OMB control number 1910-1400. Public reporting burden for the certification is estimated to average 30 hours per response, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information.

Notwithstanding any other provision of the law, no person is required to respond to, nor must 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.

In this proposed rule, DOE is proposing an amendment to the test procedure for LED lamps that will be used to support the ongoing general service lamps energy conservation standards rulemaking as well as the FTC's Lighting Facts labeling program. DOE has determined that this rule falls into a class of actions that are categorically excluded from review under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) and DOE's implementing regulations at 10 CFR part 1021. Specifically, this proposed rule would amend the existing test procedure for integrated LED lamps without affecting the amount, quality or distribution of energy usage, and, therefore, will not result in any environmental impacts. Thus, this rulemaking is covered by Categorical Exclusion A5 under 10 CFR part 1021, subpart D, which applies to any rulemaking that interprets or amends an existing rule without changing the environmental effect of that rule. Accordingly, neither an environmental assessment nor an environmental impact statement is required.

Executive Order 13132, “Federalism,” 64 FR 43255 (August 4, 1999), imposes certain requirements on agencies formulating and implementing policies or regulations that preempt State law or that have Federalism implications. The Executive Order requires agencies to examine the constitutional and statutory authority supporting any action that would limit the policymaking discretion of the States and to carefully assess the necessity for such actions. The Executive Order also requires agencies to have an accountable process to ensure meaningful and timely input by State and local officials in the development of regulatory policies that have Federalism implications. On March 14, 2000, DOE published a statement of policy describing the intergovernmental consultation process it will follow in the development of such regulations. 65 FR 13735. DOE has examined this proposed rule and has determined that it will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. EPCA governs and prescribes Federal preemption of State regulations as to energy conservation for the products that are the subject of this proposed rule. States can petition DOE for exemption from such preemption to the extent, and based on criteria, set forth in EPCA. (42 U.S.C. 6297(d)) No further action is required by Executive Order 13132.

Regarding the review of existing regulations and the promulgation of new regulations, section 3(a) of Executive Order 12988, “Civil Justice Reform,” 61 FR 4729 (Feb. 7, 1996), imposes on Federal agencies the general duty to adhere to the following requirements: (1) Eliminate drafting errors and ambiguity, (2) write regulations to minimize litigation, (3) provide a clear legal standard for affected conduct rather than a general standard, and (4) promote simplification and burden reduction. Section 3(b) of Executive Order 12988 specifically requires that Executive agencies make every reasonable effort to ensure that the regulation (1) clearly specifies the preemptive effect, if any, (2) clearly specifies any effect on existing Federal law or regulation, (3) provides a clear legal standard for affected conduct while promoting simplification and burden reduction, (4) specifies the retroactive effect, if any, (5) adequately defines key terms, and (6) addresses other important issues affecting clarity and general draftsmanship under any guidelines issued by the Attorney General. Section 3(c) of Executive Order 12988 requires Executive agencies to review regulations in light of applicable standards in sections 3(a) and 3(b) to determine whether they are met or it is unreasonable to meet one or more of them. DOE has completed the required review and determined that, to the extent permitted by law, the proposed rule meets the relevant standards of Executive Order 12988.

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) requires each Federal agency to assess the effects of Federal regulatory actions on State, local, and Tribal governments and the private sector. Public Law 104-4, sec. 201 (codified at 2 U.S.C. 1531). For a proposed regulatory action resulting in a rule that may cause the expenditure by State, local, and Tribal governments, in the aggregate, or by the private sector of $100 million or more in any one year (adjusted annually for inflation), section 202 of UMRA requires a Federal agency to publish a written statement that estimates the resulting costs, benefits, and other effects on the national economy. (2 U.S.C. 1532(a), (b)) The UMRA also requires a Federal agency to develop an effective process to permit timely input by elected officers of State, local, and Tribal governments on a proposed “significant intergovernmental mandate,” and requires an agency plan for giving notice and opportunity for timely input to potentially affected small governments before establishing any requirements that might significantly or uniquely affect small governments. On March 18, 1997, DOE published a statement of policy on its process for intergovernmental consultation under UMRA. 62 FR 12820; also available at http://energy.gov/gc/office-general-counsel. DOE examined this proposed rule according to UMRA and its statement of policy and determined that the rule contains neither an intergovernmental mandate, nor a mandate that may result in the expenditure of $100 million or more in any year, so these requirements do not apply.

Section 654 of the Treasury and General Government Appropriations Act, 1999 (Public Law 105-277) requires Federal agencies to issue a Family Policymaking Assessment for any rule that may affect family well-being. This rule would not have any impact on the autonomy or integrity of the family as an institution. Accordingly, DOE has concluded that it is not necessary to prepare a Family Policymaking Assessment.

DOE has determined, under Executive Order 12630, “Governmental Actions and Interference with Constitutionally Protected Property Rights” 53 FR 8859 (March 18, 1988), that this regulation would not result in any takings that might require compensation under the Fifth Amendment to the U.S. Constitution.

Section 515 of the Treasury and General Government Appropriations Act, 2001 (44 U.S.C. 3516 note) provides for agencies to review most disseminations of information to the public under guidelines established by each agency pursuant to general guidelines issued by OMB. OMB's guidelines were published at 67 FR 8452 (Feb. 22, 2002), and DOE's guidelines were published at 67 FR 62446 (Oct. 7, 2002). DOE has reviewed this proposed rule under the OMB and DOE guidelines and has concluded that it is consistent with applicable policies in those guidelines.

Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use,” 66 FR 28355 (May 22, 2001), requires Federal agencies to prepare and submit to OMB, a Statement of Energy Effects for any significant energy action. A “significant energy action” is defined as any action by an agency that promulgated or is expected to lead to promulgation of a final rule, and that (1) is a significant regulatory action under Executive Order 12866, or any successor order; and (2) is likely to have a significant adverse effect on the supply, distribution, or use of energy; or (3) is designated by the Administrator of OIRA as a significant energy action. For any proposed significant energy action, the agency must give a detailed statement of any adverse effects on energy supply, distribution, or use if the regulation is implemented, and of reasonable alternatives to the action and their expected benefits on energy supply, distribution, and use.

This regulatory action to propose an amended test procedure for measuring the lumen maintenance and time to failure of LED lamps is not a significant regulatory action under Executive Order 12866. Moreover, it would not have a significant adverse effect on the supply, distribution, or use of energy, nor has it been designated as a significant energy action by the Administrator of OIRA. Therefore, it is not a significant energy action, and, accordingly, DOE has not prepared a Statement of Energy Effects.

Under section 301 of the Department of Energy Organization Act (Public Law 95-91; 42 U.S.C. 7101), DOE must comply with section 32 of the Federal Energy Administration Act of 1974, as amended by the Federal Energy Administration Authorization Act of 1977. (15 U.S.C. 788; FEAA) Section 32 essentially provides in relevant part that, where a proposed rule authorizes or requires use of commercial standards, the notice of proposed rulemaking must inform the public of the use and background of such standards. In addition, section 32(c) requires DOE to consult with the Attorney General and the Chairman of the Federal Trade Commission (FTC) concerning the impact of the commercial or industry standards on competition.

The proposed amendment to the test procedures for LED lamps in this NOPR does not incorporate any new standards that would require compliance under section 32(b) of the FEAA.

DOE will accept comments, data, and information regarding this proposed rule no later than the date provided in the DATES section at the beginning of this NOPR. Interested parties may submit comments, data, and other information using any of the methods described in the ADDRESSES section at the beginning of this NOPR.

Submitting comments via regulations.gov. The regulations.gov Web page will require you to provide your name and contact information. Your contact information will be viewable to DOE Building Technologies staff only. Your contact information will not be publicly viewable except for your first and last names, organization name (if any), and submitter representative name (if any). If your comment is not processed properly because of technical difficulties, DOE will use this information to contact you. If DOE cannot read your comment due to technical difficulties and cannot contact you for clarification, DOE may not be able to consider your comment.

However, your contact information will be publicly viewable if you include it in the comment or in any documents attached to your comment. Any information that you do not want to be publicly viewable should not be included in your comment, nor in any document attached to your comment. Persons viewing comments will see only first and last names, organization names, correspondence containing comments, and any documents submitted with the comments.

Do not submit to regulations.gov information for which disclosure is restricted by statute, such as trade secrets and commercial or financial information (hereinafter referred to as Confidential Business Information (CBI)). Comments submitted through regulations.gov cannot be claimed as CBI. Comments received through the Web site will waive any CBI claims for the information submitted. For information on submitting CBI, see the Confidential Business Information section.

DOE processes submissions made through regulations.gov before posting. Normally, comments will be posted within a few days of being submitted. However, if large volumes of comments are being processed simultaneously, your comment may not be viewable for up to several weeks. Please keep the comment tracking number that regulations.gov provides after you have successfully uploaded your comment.

Submitting comments via email, hand delivery, or mail. Comments and documents submitted via email, hand delivery, or mail also will be posted to regulations.gov. If you do not want your personal contact information to be publicly viewable, do not include it in your comment or any accompanying documents. Instead, provide your contact information on a cover letter. Include your first and last names, email address, telephone number, and optional mailing address. The cover letter will not be publicly viewable as long as it does not include any comments.

Include contact information each time you submit comments, data, documents, and other information to DOE. If you submit via mail or hand delivery, please provide all items on a CD, if feasible. It is not necessary to submit printed copies. No facsimiles (faxes) will be accepted.

Comments, data, and other information submitted to DOE electronically should be provided in PDF (preferred), Microsoft Word or Excel, WordPerfect, or text (ASCII) file format. Provide documents that are not secured, written in English and free of any defects or viruses. Documents should not contain special characters or any form of encryption and, if possible, they should carry the electronic signature of the author.

Campaign form letters. Please submit campaign form letters by the originating organization in batches of between 50 to 500 form letters per PDF or as one form letter with a list of supporters' names compiled into one or more PDFs. This reduces comment processing and posting time.

Confidential Business Information. According to 10 CFR 1004.11, any person submitting information that he or she believes to be confidential and exempt by law from public disclosure should submit via email, postal mail, or hand delivery two well-marked copies: one copy of the document marked confidential including all the information believed to be confidential, and one copy of the document marked non-confidential with the information believed to be confidential deleted. Submit these documents via email or on a CD, if feasible. DOE will make its own determination about the confidential status of the information and treat it according to its determination.

Factors of interest to DOE when evaluating requests to treat submitted information as confidential include: (1) A description of the items; (2) whether and why such items are customarily treated as confidential within the industry; (3) whether the information is generally known by or available from other sources; (4) whether the information has previously been made available to others without obligation concerning its confidentiality; (5) an explanation of the competitive injury to the submitting person which would result from public disclosure; (6) when such information might lose its confidential character due to the passage of time; and (7) why disclosure of the information would be contrary to the public interest.

It is DOE's policy that all comments may be included in the public docket, without change and as received, including any personal information provided in the comments (except information deemed to be exempt from public disclosure).

Although comments are welcome on all aspects of this proposed rulemaking, DOE is particularly interested in comments on the proposed amendment to the integrated LED lamps test procedure to allow for testing to be conducted at elevated temperatures during time to failure tests as prescribed in section 4 of appendix BB to subpart B of 10 CFR part 430.

The Secretary of Energy has approved publication of this proposed rule.

For the reasons stated in the preamble, DOE proposes to amend part 430 of Chapter II of Title 10, Code of Federal Regulations as set forth below:

We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2016-9357; Directorate Identifier 2016-CE-030-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD because of those comments.

We will post all comments we receive, without change, to http://regulations.gov, including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive about this proposed AD.

The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued AD No.: 2016-0183, dated September 13, 2016 (referred to after this as “the MCAI”), to correct an unsafe condition for Pilatus Aircraft Ltd. Model PC-6, PC-6-H1, PC-6-H2, PC-6/350, PC-6/350-H1, PC-6/350-H2, PC-6/A, PC-6/A-H1, PC-6/A-H2, PC-6/B-H2, PC-6/B1-H2, PC- 6/B2-H2, PC-6/B2-H4, PC-6/C-H2, and PC-6/C1-H2 airplanes and was based on mandatory continuing airworthiness information originated by an aviation authority of another country. The MCAI states:

You may examine the MCAI on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-9357.

Pilatus Aircraft Ltd. has issued Pilatus PC-6 Service Bulletin No. 57-006, dated May 13, 2016. The service information describes procedures for removal, installation, and inspection of the ailerons, aileron balance tabs, and the aileron counterweights and their attaching parts. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section of this NPRM.

This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with this State of Design Authority, they have notified us of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all information and determined the unsafe condition exists and is likely to exist or develop on other products of the same type design.

We estimate that this proposed AD will affect 30 products of U.S. registry. We also estimate that it would take about 2 work-hours per product to comply with the basic requirements of this proposed AD. The average labor rate is $85 per work-hour. Required parts would cost about $100 per product.

Based on these figures, we estimate the cost of the proposed AD on U.S. operators to be $8,100, or $270 per product.

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.

We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.

For the reasons discussed above, I certify this proposed regulation:

(1) Is not a “significant regulatory action” under Executive Order 12866,

(2) Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),

(3) Will not affect intrastate aviation in Alaska, and

(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:

Comments Invited

We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2016-7850; Directorate Identifier 2016-NE-16-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD based on those comments.

We will post all comments we receive, without change, to http://www.regulations.gov, including any personal information you provide. We will also post a report summarizing each substantive verbal contact with FAA personnel concerning this proposed AD.

The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued EASA AD 2016-0098, dated May 23, 2016 (referred to hereinafter as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states:

You may obtain further information by examining the MCAI in the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-7850.

Turbomeca S.A. has issued MSB No. 292 73 3158, Version A, dated April 7, 2016. The MSB describes procedures for removing the pre-mod TU 158 HMU and replacing with an HMU modified with mod TU 158. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

This product has been approved by the aviation authority of France, and is approved for operation in the United States. Pursuant to our bilateral agreement with the European Community, EASA has notified us of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all information provided by EASA and determined the unsafe condition exists and is likely to exist or develop on other products of the same type design. This AD would require removing the pre-mod TU 158 HMU and replacing with a part eligible for installation.

We estimate that this proposed AD affects 124 engines installed on helicopters of U.S. registry. We also estimate that it will take about 2.0 hours per engine to comply with this AD. The average labor rate is $85 per hour. Based on these figures, we estimate the cost of this AD on U.S. operators to be $21,080.

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.

We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.

For the reasons discussed above, I certify this proposed regulation:

(1) Is not a “significant regulatory action” under Executive Order 12866,

(2) Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),

(3) Will not affect intrastate aviation in Alaska to the extent that it justifies making a regulatory distinction, and

(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:

Authority for This Rulemaking

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it would establish Class E airspace at Hot Springs County Airport, Thermopolis, WY.

Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal. Communications should identify both docket numbers and be submitted in triplicate to the address listed above. Persons wishing the FAA to acknowledge receipt of their comments on this notice must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. FAA-2016-8163/Airspace Docket No. 16-ANM-2”. The postcard will be date/time stamped and returned to the commenter.

All communications received before the specified closing date for comments will be considered before taking action on the proposed rule. The proposal contained in this notice may be changed in light of the comments received. A report summarizing each substantive public contact with FAA personnel concerned with this rulemaking will be filed in the docket.

An electronic copy of this document may be downloaded through the Internet at http://www.regulations.gov. Recently published rulemaking documents can also be accessed through the FAA's Web page at http://www.faa.gov/air_traffic/publications/airspace_amendments/.

You may review the public docket containing the proposal, any comments received, and any final disposition in person in the Dockets Office (see the ADDRESSES section for the address and phone number) between 9:00 a.m. and 5:00 p.m., Monday through Friday, except federal holidays. An informal docket may also be examined during normal business hours at the Northwest Mountain Regional Office of the Federal Aviation Administration, Air Traffic Organization, Western Service Center, Operations Support Group, 1601 Lind Avenue SW., Renton, WA 98057.

This document proposes to amend FAA Order 7400.11A, Airspace Designations and Reporting Points, dated August 3, 2016, and effective September 15, 2016. FAA Order 7400.11A is publicly available as listed in the ADDRESSES section of this document. FAA Order 7400.11A lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

The FAA is proposing an amendment to Title 14 Code of Federal Regulations (14 CFR) Part 71 by establishing Class E airspace extending upward from 700 feet above the surface at Hot Springs County Airport, Thermopolis, WY. Class E airspace would be established within a 4.8-mile radius of Hot Springs County Airport, with segments extending from the 3.5-mile radius to 5.5 miles northwest of the airport, and 7 miles southwest of the airport. This airspace is necessary to support the development of IFR operations in standard instrument approach and departure procedures at the airport.

Class E airspace designations are published in paragraph 6005 of FAA Order 7400.11A, dated August 3, 2016, and effective September 15, 2016, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designations listed in this document will be published subsequently in the Order.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current, is non-controversial and unlikely to result in adverse or negative comments. It, therefore: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule, when promulgated, would not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

This proposal will be subject to an environmental analysis in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures” prior to any FAA final regulatory action.

Accordingly, pursuant to the authority delegated to me, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:

Authority for This Rulemaking

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part, A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it would amend Class E airspace at Rostraver Airport, Monongahela, PA.

Interested persons are invited to comment on this proposed rule by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal.

Communications should identify both docket numbers and be submitted in triplicate to the address listed above. You may also submit comments through the Internet at http://www.regulations.gov.

Persons wishing the FAA to acknowledge receipt of their comments on this action must submit with those comments a self-addressed stamped postcard on which the following statement is made: “Comments to Docket No. FAA-2016-9102; Airspace Docket No. 16-AEA-6.” The postcard will be date/time stamped and returned to the commenter.

All communications received before the specified closing date for comments will be considered before taking action on the proposed rule. The proposal contained in this notice may be changed in light of the comments received. A report summarizing each substantive public contact with FAA personnel concerned with this rulemaking will be filed in the docket.

An electronic copy of this document may be downloaded through the internet at http://www.regulations.gov. Recently published rulemaking documents can also be accessed through the FAA's Web page at http://www.faa.gov/air_traffic/publications/airspace_amendments/.

You may review the public docket containing the proposal, any comments received, and any final disposition in person in the Dockets Office (see the ADDRESSES section for address and phone number) between 9:00 a.m. and 5:00 p.m., Monday through Friday, except Federal Holidays. An informal docket may also be examined between 8:00 a.m. and 4:30 p.m., Monday through Friday, except Federal Holidays at the office of the Eastern Service Center, Federal Aviation Administration, room 350, 1701 Columbia Avenue, College Park, Georgia 30337.

This document proposes to amend FAA Order 7400.11A, Airspace Designations and Reporting Points, dated August 3, 2016, and effective September 15, 2016. FAA Order 7400.11A is publicly available as listed in the ADDRESSES section of this document. FAA Order 7400.11A lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

The FAA is considering an amendment to Title 14, Code of Federal Regulations (14 CFR) Part 71 to amend Class E airspace extending upward from 700 feet or more above the surface within a 6.5-mile radius of Rostraver Airport, Monongahela, PA, due to the decommissioning of the Allegheny VOR, and to ensure the safety and management of the modified IFR operations at the airport.

Class E airspace designations are published in Paragraph 6005 of FAA Order 7400.11A, dated August 3, 2016, and effective September 15, 2016, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document will be published subsequently in the Order.

The FAA has determined that this proposed regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore: (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a Regulatory Evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this proposed rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

This proposal would be subject to an environmental analysis in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures” prior to any FAA final regulatory action.

In consideration of the foregoing, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:

Local governmental officials from St. Tammany Parish and the City of Madisonville, in conjunction with the Louisiana Department of Transportation and Development (LDOTD), requested that the operating regulation of the SR 22 Bridge, a swing span bridge, be changed in order to better accommodate the increased vehicular traffic crossing the bridge especially during the peak, weekday rush hours. Currently, this bridge is governed under 33 CFR 117.500. The current regulation was created to allow for improved vehicular traffic flow during peak rush hours due to the increased population of the western portions of St. Tammany Parish.

Based on a recent study of the current vehicle traffic crossing the bridge, public officials and LDOTD requested that the operating regulation be changed to better meet current bridge use.

The traffic study conducted by the LDOTD determined that the existing vehicular traffic at the intersection of SR 22 and SR 21/SR 1077 is over capacity at peak hours and causes unacceptable levels of delay to roadway traffic. This situation is compounded by the opening of the bridge during these peak hours. A combination of modifications to the operating schedule of the bridge and modifications to the traffic controls at this intersection will improve traffic flow and reduce traffic delays. As the largest commercial facility upstream of the bridge is no longer in service, most of the vessels that request openings are recreational powerboats and sailboats that routinely transit this waterway and should be able to adjust their schedules to coincide with the proposed drawbridge operating schedule. The SR 22 swing bridge has a vertical clearance of 6.2 feet above Mean High Water (MHW) in the closed-to-navigation position and unlimited clearance in the open-to-navigation position.

Concurrent with the publication of the Notice of Proposed Rulemaking (NPRM), a Test Deviation [USCG-2016-0963] has been issued to allow the LDOTD to test the proposed schedule and to obtain data and public comments. The test period will be in effect during the entire NPRM comment period. The Coast Guard will review the logs of the drawbridge, the traffic counts provided by LDOTD, and evaluate public comments from this NPRM and the above referenced Temporary Deviation to determine if the requested change to the permanent special drawbridge operating regulation is warranted.

The rule proposes to amend 33 CFR 117.500. The proposed rule change would extend the time between openings from 30 minutes to an hour, between 6 a.m. and 7 p.m., and not require the bridge to open for the passage of vessels at 8 a.m., 5 p.m. and 6 p.m. during the weekday rush hours. This additional time would allow commuters and school buses to cross the bridge freely and prevent vehicular traffic from backing up for over a mile on SR 22. The bridge will open at any time in the case of an emergency.

Approximately 7,500 vehicles cross the bridge daily between the hours of 6 a.m. and 7 p.m. Vessel openings for the month of July indicate that the bridge opened to pass vessels 118 times during the week and 202 times during the weekend. Vessel openings for the month of August dropped to 68 openings during the week and 85 openings during the weekend.

Traffic studies have indicated a significant increase in highway traffic delays caused by bridge openings, consisting of mainly recreational traffic that presently passes through the bridge on scheduled openings, and can adjust their schedules to work with the needs of land transportation. There are no alternate routes available for vessels that wish to transit the bridge site; however, if vessels have a vertical clearance requirement of less than 6.2 feet above MHW, they may transit the bridge site at any time.

We developed this proposed rule after considering numerous statutes and Executive Orders related to rulemaking. Below we summarize our analyses based on 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 a reduction of commercial vessel traffic on this waterway, and the recreational powerboats and sailboats that routinely transit this waterway can still transit the bridge under the proposed schedule. And, those vessels with a vertical clearance requirement of less than 6.2 feet above MHW, they may transit the bridge site at any time. This regulatory action takes into account the reasonable needs of vessel and vehicular traffic.

The Regulatory Flexibility Act of 1980 (RFA), 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 bridge 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, above. 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 call for no 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 above.

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 will not result in such an expenditure, we do discuss the effects of this proposed 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 guides the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA)(42 U.S.C. 4321-4370f), and have made a preliminary determination that this action is one of a category of actions which do not individually or cumulatively have a significant effect on the human environment. This proposed rule simply promulgates the operating regulations or procedures for drawbridges. Normally such actions are categorically excluded from further review, under figure 2-1, paragraph (32)(e), of the Instruction.

Under figure 2-1, paragraph (32)(e), of the Instruction, an environmental analysis checklist and a categorical exclusion determination are not required for this rule. 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 notice, and all public comments, are 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 117 as follows:

Throughout this document wherever “we”, “us”, or “our” is used, we mean the EPA.

EPA is proposing to take the following three separate but related actions, one of which involves multiple elements: (1) To determine that the BRNA continues to attain the 2008 ozone NAAQS; 1 (2) to approve into the SIP, Louisiana's plan for maintaining the 2008 ozone NAAQS (maintenance plan), including the associated MVEBs for the BRNA; and (3) to redesignate the BRNA to attainment for the 2008 ozone NAAQS. EPA is also notifying the public of the status of EPA's adequacy determination for the MVEBs for the BRNA. The BRNA is comprised of five parishes that make up the historical metropolitan statistical area: Ascension, East Baton Rouge, Iberville, Livingston, and West Baton Rouge. Today's proposed actions are summarized below and described in greater detail throughout this notice of proposed rulemaking.

EPA is proposing to approve Louisiana's maintenance plan for the BRNA as meeting the requirements of section 175A [such approval being one of the Clean Air Act (CAA or Act) criteria for redesignation to attainment status]. The maintenance plan is designed to keep the BRNA in attainment of the 2008 ozone NAAQS through 2027. The maintenance plan includes 2022 and 2027 MVEBs for NOX and VOC for the BRNA for transportation conformity purposes. EPA is proposing to approve these MVEBs and incorporate them into the Louisiana SIP.

EPA also proposes to determine that the BRNA has met the requirements for redesignation under section 107(d)(3)(E) of the CAA. Accordingly, in this action, EPA is proposing to approve a request to change the legal designation of the BRNA, as found at 40 CFR part 81, from nonattainment to attainment for the 2008 ozone NAAQS.

EPA is also notifying the public of the status of EPA's adequacy process for the 2022 and 2027 NOX and VOC MVEBs for the BRNA. The Adequacy comment period began on May 6, 2016, with EPA's posting of the availability of Louisiana's submissions on EPA's Adequacy Web site (http://www3.epa.gov/otaq/stateresources/transconf/currsips.htm). The Adequacy comment period for these MVEBs closed on June 6, 2016. No comments, adverse or otherwise, were received during the Adequacy comment period. Please see section VII of this proposed rulemaking for further explanation of this process and for more details on the MVEBs.

In summary, today's notice of proposed rulemaking is in response to Louisiana's May 2, 2016, redesignation request and associated SIP submission that address the specific issues summarized above and the necessary elements described in section 107(d)(3)(E) of the CAA for redesignation of the BRNA to attainment for the 2008 ozone NAAQS.

On March 12, 2008, EPA promulgated a revised 8-hour ozone NAAQS of 0.075 parts per million (ppm). See 73 FR 16436 (March 27, 2008). Under EPA's regulations at 40 CFR part 50, the 2008 ozone NAAQS is attained when the 3-year average of the annual fourth highest daily maximum 8-hour average ambient air quality ozone concentrations is less than or equal to 0.075 ppm. See 40 CFR 50.15. Ambient air quality monitoring data for the 3-year period must meet a data completeness requirement. The ambient air quality monitoring data completeness requirement is met when the average percent of days with valid ambient monitoring data is equal to or greater than 90 percent, and no single year has less than 75 percent data completeness as determined in Appendix P of part 50.

Upon promulgation of a new or revised NAAQS, the CAA requires EPA to designate as nonattainment any area that is violating the NAAQS, based on the three most recent years of complete, quality assured, and certified ambient air quality data at the conclusion of the designation process. The BRNA was designated nonattainment for the 2008 ozone NAAQS on May 21, 2012 (effective July 20, 2012) using 2008-2010 ambient air quality data. See 77 FR 30088 (May 21, 2012). At the time of designation, the BRNA was classified as a marginal nonattainment area for the 2008 ozone NAAQS. In the final implementation rule for the 2008 ozone NAAQS (SIP Implementation Rule),2 EPA established ozone nonattainment area attainment dates based on Table 1 of section 181(a) of the CAA. This rule established an attainment date three years after the July 20, 2012, effective date of designation for areas classified as marginal for the 2008 ozone nonattainment designations.3 Therefore, the BRNA's attainment date was July 20, 2015.

The CAA provides the requirements for redesignating a nonattainment area to attainment. Specifically, section 107(d)(3)(E) of the CAA allows for redesignation providing that: (1) The Administrator determines that the area has attained the applicable NAAQS; (2) the Administrator has fully approved the applicable implementation plan for the area under section 110(k); (3) the Administrator determines that the improvement in air quality is due to permanent and enforceable reductions in emissions resulting from implementation of the applicable SIP and applicable Federal air pollutant control regulations and other permanent and enforceable reductions; (4) the Administrator has fully approved a maintenance plan for the area as meeting the requirements of section 175A; and, (5) the state containing such area has met all requirements applicable to the area for purposes of redesignation under section 110 and part D of the CAA.

On April 16, 1992, EPA provided guidance on redesignation in the General Preamble for the Implementation of title I of the CAA Amendments of 1990 (57 FR 13498), and supplemented this guidance on April 28, 1992 (57 FR 18070). EPA has provided further guidance on processing redesignation requests in the following documents:

On May 2, 2016, the State of Louisiana, through the Louisiana Department of Environmental Quality (LDEQ), requested that EPA redesignate the BRNA to attainment for the 2008 ozone NAAQS. EPA's evaluation indicates that the entire BRNA has attained the 2008 ozone NAAQS, and that the BRNA meets the requirements for redesignation as set forth in section 107(d)(3)(E), including the maintenance plan requirements under section 175A of the CAA. As a result, EPA is proposing to take the three related actions summarized in section I of this notice.

Our analysis of the State's request with respect to the five redesignation criteria provided under CAA section 107(d)(3)(E) is discussed in the following paragraphs of this section.

Criteria (1)—The BRNA has attained the 2008 ozone NAAQS.

For redesignating a nonattainment area to attainment, the CAA requires EPA to determine that the area has attained the applicable NAAQS (CAA section 107(d)(3)(E)(i)). For ozone, an area may be considered to be attaining the 2008 ozone NAAQS if it meets the 2008 ozone NAAQS, as determined in accordance with 40 CFR 50.15 and Appendix P of part 50, based on three complete, consecutive calendar years of quality-assured air quality monitoring data. To attain the 2008 ozone NAAQS, the 3-year average of the fourth-highest daily maximum average ozone concentrations measured at each monitor within an area over each year must not exceed 0.075 ppm. Based on the data handling and reporting convention described in 40 CFR part 50, Appendix P, the 2008 ozone NAAQS are attained if the design value is 0.075 ppm or below. The data must be collected and quality-assured in accordance with 40 CFR part 58 and recorded in the EPA Air Quality System (AQS). The monitors generally should have remained at the same location for the duration of the monitoring period required for demonstrating attainment.

EPA is proposing to determine that the BRNA is continuing to attain the 2008 ozone NAAQS. EPA reviewed ozone monitoring data from monitoring stations in the BRNA for the 2008 8-hour ozone NAAQS for 2011-2015, and the design values for each monitor in the Area are less than 0.075 ppm. These data have been quality-assured, are recorded in AQS, and indicate that the Area is attaining the 2008 ozone NAAQS. The fourth-highest 8-hour ozone values at each monitor for 2011, 2012, 2013, 2014, 2015, and the 3-year averages of these values (i.e., design values), are summarized in Table 1, below.

Inspection of Public Comments: All comments received before the close of the comment period are available for viewing by the public, including any personally identifiable or confidential business information that is included in a comment. We post all comments received before the close of the comment period on the following Web site as soon as possible after they have been received: http://www.regulations.gov. Follow the search instructions on that Web site to view public comments.

Comments received timely will also be available for public inspection as they are received, generally beginning approximately 3 weeks after publication of a document, at the headquarters of the Centers for Medicare & Medicaid Services, 7500 Security Boulevard, Baltimore, Maryland 21244, Monday through Friday of each week from 8:30 a.m. to 4 p.m. To schedule an appointment to view public comments, phone 1-800-743-3951.

The Life Safety Code (LSC) is a compilation of fire safety requirements for new and existing buildings, and is updated and published every 3 years by the National Fire Protection Association (NFPA), a private, nonprofit organization dedicated to reducing loss of life due to fire. The Medicare and Medicaid regulations have historically incorporated these requirements by reference, along with Secretarial waiver authority. The statutory basis for incorporating NFPA's LSC into the regulations we apply to Medicare and, as applicable, Medicaid providers and suppliers is the Secretary of the Department of Health and Human Services' (the Secretary) authority to stipulate health, safety and other regulations for each type of Medicare and (if applicable) Medicaid-participating facility. Specifically, section 1881(b)(1)(A) of the Social Security Act (the Act) provides for payments for “providers of services and renal dialysis facilities which meet such requirements as the Secretary shall by regulation prescribe for institutional dialysis services and supplies . . . . ” Under this statutory authority, the Secretary has set out “Conditions for Coverage,” including LSC compliance requirements, at 42 CFR part 494, subpart B. Our current LSC provisions are set out at § 494.60(e).

In implementing the LSC provisions, we have given ourselves the discretion to waive specific provisions of the LSC for facilities if application of our rules would result in unreasonable hardship for the facility, and if the health and safety of its patients would not be compromised by such waiver. For dialysis facilities, that authority is set out at § 494.60(e)(4). In addition, the Secretary may accept a State's fire and safety code instead of the LSC if the Centers for Medicare & Medicaid Services (CMS) determines that the protections of the State's fire and safety code are equivalent to, or more stringent than, the protections offered by the LSC; dialysis facility provisions to that effect are set out at § 494.60(e)(3). These flexibilities mitigate the potential unnecessary burdens of applying the requirements of the LSC to all affected health care facilities.

On May 12, 2012, we published a final rule in the Federal Register, entitled “Medicare and Medicaid Program; Regulatory Provisions to Promote Program Efficiency, Transparency, and Burden Reduction” (77 FR 29002). In that final rule, we limited the application of LSC requirements to dialysis facilities either located adjacent to industrial high hazard areas, and those that did not provide one or more exits to the outside at grade level from the patient treatment area level. However, we inadvertently neglected to include updated provisions for dialysis facilities in our proposed update to the Life Safety Code provisions for CMS providers and suppliers, “Medicare and Medicaid Programs; Fire Safety Requirements for Certain Health Care Facilities; Proposed Rule” (79 FR 21552, April 16, 2014). Therefore, we are proposing these provisions now, with some modifications to address the unique needs of dialysis facilities. The proposed update would apply only to dialysis facilities that do not provide one or more exits to the outside at grade level from the treatment area level (for instance, in upper floors of a mid-rise or high-rise building). We would not require other dialysis facilities to comply with NFPA 99® 2012 edition of the Health Care Facilities Code (NFPA 99) and NFPA 101® 2012 edition of the Life Safety Code (NFPA 101) because we believe that patients in dialysis facilities are generally capable of unhooking themselves from dialysis machines and self-evacuating without additional assistance in the event of an emergency. We believe that in all facilities with at-grade exits, patients would be able to evacuate the building in a timely fashion. Consequently, we believe that state and local requirements are sufficient to protect these patients and staff in the event of an emergency. In accordance with NFPA 101 sections 20.1.3.7 and 21.1.3.7, we would prohibit Medicare-approved dialysis facilities from being located adjacent to industrial high hazard facilities. “Adjacent to” is defined as sharing a wall, ceiling or floor, with a facility.

The phrase “exit to the outside at grade level from the patient treatment area level” applies to dialysis facilities that are on the ground or grade level of a building where patients do not have to traverse up or down stairways within the building to evacuate to the outside. Accessibility ramps in the exit area that provide an ease of access between the patient treatment level and the outside ground level are not considered stairways.

A dialysis facility which provides one or more exits to the outside at grade level from patient treatment level and which has a patient exit path to the outside (which may include an accessibility ramp that is compliant with NFPA and the Americans with Disabilities Act (ADA)) would be exempt from compliance with the applicable provisions of NFPA 99 and NFPA 101.

In this rule, we are proposing to update our requirements for dialysis facilities that do not provide one or more exits to the outside at grade level from the patient treatment area level, by incorporating by reference the 2012 edition of NFPA 101 and NFPA 99. These facilities are already required to meet the 2000 edition of the LSC; other provider types affected by the LSC are now required to meet the 2012 edition of the NFPA 101 and the NFPA 99 (LSC final rule published May 4, 2016 at 81 FR 26872). The 2012 edition of the LSC includes new provisions that we believe are vital to the health and safety of all patients and staff. Our intention is to ensure that patients and staff continue to experience the highest degree of fire safety possible.

The NFPA 101 2012 edition of the LSC provides minimum requirements, with due regard to function, for the design, operation and maintenance of buildings and structures for safety to life from fire. Its provisions also aid life safety in similar emergencies.

The NFPA 99 2012 edition of the Health Care Facilities Code provides minimum requirements for health care facilities for the installation, inspection, testing, maintenance, performance, and safe practices for facilities, material, equipment, and appliances.

The 2012 edition of the LSC includes new provisions that we believe are vital to the health and safety of all patients and staff. Our intention is to ensure that patients and staff continue to experience the highest degree of fire safety possible. We do review each edition of the NFPA 101 and NFPA 99 every 3 years to see if there are any significant provisions that we need to adopt. CMS will continue to review revisions to ensure we meet proper standards for patient safety. We have reviewed the 2015 edition of the NFPA 101 and NFPA 99 and do not believe that there are any significant provisions that need to be addressed at this time. Newer buildings are typically built to comply with the newer versions of the LSC because state and local jurisdictions often adopt and enforce newer versions of the LSC as they become available.

CMS must emphasize that the LSC is not an accessibility code, and compliance with the LSC does not ensure compliance with the requirements of the ADA. State and local government programs and services, including health care facilities, are required to comply with Title II of the ADA. Private entities that operate public accommodations such as nursing homes, hospitals, and social service center establishments are required to comply with Title III of the ADA. Entities that receive federal financial assistance from the Department of Health and Human Services, including Medicare and Medicaid, are also required to comply with section 504 of the Rehabilitation Act of 1973. The same accessibility standards apply regardless of whether health care facilities are covered under Title II or Title III of the ADA or section 504 of the Rehabilitation Act of 1973.1 For more information about the ADA's requirements, see the Department of Justice's Web site at http://www.ada.gov or call 1-800-514-0301 (voice) or 1-800-514-0383 (TTY).

This proposed rule would incorporate by reference the NFPA 101® 2012 edition of the LSC, issued August 11, 2011, and all Tentative Interim Amendments issued prior to April 16, 2014; and the NFPA 99® 2012 edition of the Health Care Facilities Code, issued August 11, 2011, and Tentative Interim Amendments issued prior to April 16, 2014 in § 494.60(g).

These materials have been previously incorporated by reference for other provider types by a final rule titled “Medicare and Medicaid Programs; Fire Safety Requirements for Certain Health Care Facilities” published on May 4, 2016 (81 FR 26872).

The materials that are incorporated by reference can be found for interested parties and are available for inspection at the CMS Information Resource Center, 7500 Security Boulevard, Baltimore, MD 21244, or from the National Fire Protection Association, 1 Batterymarch Park, Quincy, MA 02269. If any changes to this edition of the Code are incorporated by reference, CMS will publish a document in the Federal Register to announce those changes.

According to our memorandum, “Survey & Certification: 13-47-LSC/ESRD,” issued July 12, 2013, dialysis facilities that are subject to the LSC provisions must meet the requirements of the Ambulatory Health Care Occupancy chapters 20 and 21 of the LSC. Dialysis facilities that are not subject to our LSC regulations must continue to meet State and local fire codes. (See https://www.cms.gov/Medicare/Provider-Enrollment-and-Certification/SurveyCertificationGenInfo/Downloads/Survey-and-Cert-Letter-13-47.pdf.)

The following are key provisions in the 2012 edition of the LSC from Chapter 20, “New Ambulatory Health Care Occupancies” and Chapter 21, “Existing Ambulatory Health Care Occupancies.” We have provided the LSC citation and a description of the requirement.

The 2012 edition of the LSC defines an “Ambulatory Health Care Occupancy” as a facility capable of treating 4 or more patients simultaneously on an outpatient basis. We believe that dialysis facilities that do not provide one or more exits to the outside at grade level from the patient treatment area should also be required to meet the provisions applicable to Ambulatory Health Care Occupancy Chapters, regardless of the number of patients served, as a matter of health and safety of patients receiving services in these facilities. In the burden reduction final rule, published in the Federal Register on May 12, 2012 entitled, “Medicare and Medicaid Program; Regulatory Provisions to Promote Program Efficiency, Transparency, and Burden Reduction” (77 FR 29002), we removed the provision's applicability to dialysis facilities with at-grade exits directly from the treatment area because, in our view, there was, and continues to be, an extremely low risk of fire in dialysis facilities. Medicare-approved dialysis facilities that provide exits to the outside at grade level would continue to be required to follow State and local fire codes, which we believe provide for sufficient patient protection in the event of an emergency. If a facility's exits were located above or below grade, patients would require more time to evacuate. Consequently, we believe that the LSC would still be required due to the additional risk entailed in longer exit times.

This provision requires all doors to hazardous areas be self-closing or close automatically.

This provision explicitly allows aerosol dispensers, in addition to gel hand rub dispensers. The aerosol dispensers are subject to limitations on size, quantity, and location, just as gel dispensers are limited. Automatic dispensers are also now permitted in ambulatory care facilities, provided, among other things, that—(1) they do not release contents unless they are activated; (2) the activation occurs only when an object is within 4 inches of the sensing device; (3) any object placed in the activation zone and left in place must not cause more than one activation; (4) the dispenser must not dispense more than the amount required for hand hygiene consistent with the label instructions; (5) the dispenser is designed, constructed and operated in a way to minimize accidental or malicious dispensing; and (6) all dispensers are tested in accordance with the manufacturer's care and use instructions each time a new refill is installed. The provision further defines prior language regarding “above or adjacent to an ignition source” as being “within 1 inch” of the ignition source.

This provision is related to sprinkler system requirements and requires the evacuation of a building or the instituting of an approved fire watch when a sprinkler system is out of service for more than 10 hours in a 24-hour period until the system has been returned to service. A facility must evacuate the building or portion of the building affected by the system outage until the system is back in service, or establish a fire watch until the system is back in service.

The 2012 edition of the NFPA 99, “Health Care Facilities Code,” addresses requirements for both health care occupancies and ambulatory care occupancies, and serves as a resource for those who are responsible for protecting health care facilities from fire and associated hazards. The purpose of this Code is to provide minimum requirements for the installation, inspection, testing, maintenance, performance, and safe practices for health care facility materials, equipment and appliances. This Code is a compilation of documents that have been developed over a 40-year period by NFPA, and is intended to be used by those persons involved in the design, construction, inspection, and operation of health care facilities, and in the design, manufacture, and testing of appliances and equipment used in patient care areas of health care facilities. It provides information on subjects, for example, medical gas and vacuum systems, electrical systems, electrical equipment, and gas equipment. The NFPA 99 applies specific requirements in accordance with the results of a risk-based assessment methodology. A risk-based approach allows for the application of requirements based upon the types of treatment and services being provided to patients or residents rather than the type of facility in which they are being performed. In order to ensure the minimum level of protection afforded by NFPA 99 is applicable to all patient and resident care areas within a health care facility, we are proposing adoption of the 2012 edition of NFPA 99, with the exception of chapters 7—“Information Technology and Communications Systems for Health Care Facilities”; 8—“Plumbing”; 12—“Emergency Management”; and 13—“Security Management”. The first three chapters of the NFPA 99 address the administration of the NFPA 99, the referenced publications, and definitions. Short descriptions of some of the more important provisions of NFPA 99 follow:

Chapter 4 provides guidance on how to apply NFPA 99 requirements to health care facilities based upon “categories” determined when using a risk-based methodology.

There are four categories utilized in the risk assessment methodology, depending on the types of treatment and services being provided to patients or residents. Section 4.1.1 of NFPA 99 describes Category 1 as, “Facility systems in which failure of such equipment or system is likely to cause major injury or death of patients or caregivers. . . .” Section A.4.1.1 provides examples of what a major injury could include, such as amputation or a burn to the eye. Section 4.1.2 describes Category 2 as, “Facility systems in which failure of such equipment is likely to cause minor injury to patients or caregivers. . . .” Section A.4.1.2 describes a minor injury as one that is not serious or involving risk of life. Section 4.1.3 describes Category 3 as, “Facility systems in which failure of such equipment is not likely to cause injury to patients or caregivers, but can cause patient discomfort. . . .” Section 4.1.4 describes Category 4 as, “Facility systems in which failure of such equipment would have no impact on patient care. . . .”

Section 4.2 requires that each facility that is a health care or ambulatory occupancy define its risk assessment methodology, implement the methodology, and document the results. We did not propose to require the use of any particular risk assessment procedure. However, if future situations indicate the need to define a particular risk assessment procedure, we would pursue that through a separate notice and comment rulemaking.

The hazards addressed in Chapter 5 include the ability of oxygen and nitrous oxide to exacerbate fires, safety concerns from the storage and use of pressurized gas, and the reliance upon medical gas and vacuum systems for patient care. Chapter 5 does not mandate the installation of any systems; rather, if they are installed or are required to be installed, the systems will be required to comply with NFPA 99. Chapter 5 covers the performance, maintenance, installation, and testing of the following:

• Nonflammable medical gas systems with operating pressure below a gauge pressure of 300 psi;

• Vacuum systems in health care facilities;

• Waste anesthetic gas disposal systems (WAGD); and

• Manufactured assemblies that are intended for connection to the medical gas, vacuum, or WAGD systems.

The hazards addressed in Chapter 6 are related to the electrical power distribution systems in health care facilities, and address issues such as electrical shock, power continuity, fire, electrocution, and explosions that might be caused by faults in the electrical system. Chapter 6 also covers the performance, maintenance, and testing of the electrical systems in health care facilities.

Chapter 9 requires HVAC systems serving spaces or providing health care functions to be in accordance with the American Society of Heating, Refrigeration and Air-Conditioning Engineers (ASHRAE) Standard 170—Ventilation of Health Care Facilities (2008 edition) (http://www.ashrae.org).

Chapter 9 does not apply to existing HVAC systems, but applies to the construction of new health care facilities, and the altered, renovated, or modernized portions of existing systems or individual components. Chapter 9 ensures minimum levels of heating, ventilation and air conditioning performance in patient and resident care areas. Some of the issues discussed in Chapter 9 are as follows:

• HVAC system energy conservation;

• Commissioning;

• Piping;

• Ductwork;

• Acoustics;

• Requirements for the ventilation of medical gas storage and trans-filling areas;

• Waste anesthetic gases;

• Plumes from medical procedures;

• Emergency power system rooms; and

• Ventilation during construction.

Chapter 10 covers the performance, maintenance, and testing of electrical equipment in health care facilities. Much of this chapter applies to requirements for portable electrical equipment in health care facilities, but there are also requirements for fixed-equipment and information on administrative issues.

The hazards addressed in Chapter 11 relate to general fire, explosions, and mechanical issues associated with gas equipment, including compressed gas cylinders.

Chapter 14 addresses the hazards associated with hyperbaric facilities in health care facilities, including electrical, explosive, implosive, as well as fire hazards. Chapter 14 sets forth minimum safeguards for the protection of patients and personnel administering hyperbaric therapy and procedures. Chapter 14 contains requirements for hyperbaric chamber manufacturers, hyperbaric facility designers, and personnel operating hyperbaric facilities. It also contains requirements related to construction of the hyperbaric chamber itself and the equipment used for supporting the hyperbaric chamber, as well as administration and maintenance. Many requirements in this chapter are applicable only to new construction and new facilities.

Chapter 15 covers the performance, maintenance, and testing of fire protection equipment in health care facilities. Issues addressed in this chapter range from the use of flammable liquids in an operating room to special sprinkler protection. These fire protection requirements are independent of the risk-based approach, as they are applicable to all patient care areas in both new and existing facilities.

Chapter 15 has several sections taken directly from the NFPA 101, including requirements for the following:

• Construction and compartmentalization of health care facilities.

• Laboratories.

• Utilities.

• Heating, ventilation and air conditioning systems.

• Elevators.

• Escalators.

• Conveyors.

• Rubbish Chutes.

• Incinerators.

• Laundry Chutes.

• Fire detection, alarm and communication systems.

• Automatic sprinklers and other extinguishing equipment.

• Compact storage including mobile storage and maintenance.

• Testing of water based fire protection systems.

These sections have requirements for inspection, testing and maintenance which apply to all facilities, as well as specific requirements for existing systems and equipment that also apply to all facilities.

The prospective timeline for applicability of these requirements would be 60 days after the publication of the final rule in the Federal Register. We are soliciting comments on the proposal of the adoption of the 2012 NFPA 101 and the 2012 NFPA 99 for dialysis facilities that do not provide one or more exits to the outside at grade level from the treatment area level.

This document does not impose information collection requirements, that is, reporting, recordkeeping or third-party disclosure requirements. Consequently, there is no need for review by the Office of Management and Budget under the authority of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

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

We have examined the impact of this rule as required by Executive Order 12866 on Regulatory Planning and Review (September 30, 1993), Executive Order 13563 on Improving Regulation and Regulatory Review (January 18, 2011), the Regulatory Flexibility Act (RFA) (September 19, 1980, Pub. L. 96-354), section 1102(b) of the Social Security Act, section 202 of the Unfunded Mandates Reform Act of 1995 (March 22, 1995; Pub. L. 104-4), Executive Order 13132 on Federalism (August 4, 1999) and the Congressional Review Act (5 U.S.C. 804(2).

Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). A regulatory impact analysis (RIA) must be prepared for major rules with economically significant effects ($100 million or more in any 1 year). This rule does not reach the economic threshold and thus is not considered a major rule.

The RFA requires agencies to analyze options for regulatory relief of small entities. For purposes of the RFA, small entities include small businesses, nonprofit organizations, and small governmental jurisdictions. Most hospitals and most other providers and suppliers are small entities, either by nonprofit status or by having revenues of less than $7.5 million to $38.5 million in any 1 year. Individuals and States are not included in the definition of a small entity. We are not preparing an analysis for the RFA because we have determined, and the Secretary certifies, that this proposed rule would not have a significant economic impact on a substantial number of small entities.

In addition, section 1102(b) of the Social Security Act (the Act) requires us to prepare a regulatory impact analysis if a rule may have a significant impact on the operations of a substantial number of small rural hospitals. This analysis must conform to the provisions of section 603 of the RFA. For purposes of section 1102(b) of the Act, we define a small rural hospital as a hospital that is located outside of a Metropolitan Statistical Area for Medicare payment regulations and has fewer than 100 beds. We are not preparing an analysis for section 1102(b) of the Act because we have determined, and the Secretary certifies, that this proposed rule would not have a significant impact on the operations of a substantial number of small rural hospitals.

Section 202 of the Unfunded Mandates Reform Act of 1995 also requires that agencies assess anticipated costs and benefits before issuing any rule whose mandates require spending in any 1 year of $100 million in 1995 dollars, updated annually for inflation. In 2016, that threshold is approximately $146 million. This rule will have no consequential effect on State, local, or tribal governments or on the private sector.

Executive Order 13132 establishes certain requirements that an agency must meet when it promulgates a proposed rule (and subsequent final rule) that imposes substantial direct requirement costs on State and local governments, preempts State law, or otherwise has Federalism implications. Since this regulation does not impose any costs on State or local governments, the requirements of Executive Order 13132 are not applicable.

We do not know how many, if any, dialysis facilities would be affected by this adoption of the 2012 editions of the NFPA 101 and NFPA 99. However, we anticipate that the impact of this rule would be less than $1,000 for each facility, and that is if they are not already meeting the requirements of the 2012 editions of the NFPA 101 and NFPA 99. Twenty states have already adopted the 2012 editions, so if there are facilities in those States, they are already following the 2012 requirements. In accordance with the provisions of Executive Order 12866, this regulation was reviewed by the Office of Management and Budget.

For the reasons set forth in the preamble, the Centers for Medicare & Medicaid Services proposes to amend 42 CFR chapter IV as set forth below:

You may mail or email comments to the Central Coast Field Office, at the addresses listed above (See ADDRESSES). Written comments on the proposed supplementary rules should be specific and confined to issues pertinent to the proposed rules, and should explain the reason for any recommended change. Where possible, comments should reference the specific section or paragraph of the proposal that the commenter is addressing. The BLM is not obligated to consider or include, in the Administrative Record for the final supplementary rules, comments delivered to an address other than those listed above (See ADDRESSES) or comments that the BLM receives after the close of the comment period (See DATES), unless they are postmarked or electronically dated before the deadline.

Comments, including names, street addresses, and other contact information for respondents, will be available for public review at 940 2nd Avenue, Marina, CA 93933, during regular business hours (7:30 a.m. to 4 p.m., Monday through Friday, excluding Federal holidays). Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.

The BLM California State Director is proposing to establish new supplementary rules related to dog management and other public safety issues for public lands on the FONM in Monterey County, California. Furthermore, the State Director is supplementing some of the existing land restrictions that have been in place on the monument since December 5, 1996 (61 FR 64530), that are consistent with the national monument proclamation of 2012 (i.e., Proclamation 8803), and the BLM's 2007 Resource Management Plan. The proposed supplementary rules are necessary to support the mission of the BLM by protecting the natural resources and enhancing the health and safety of those using and enjoying the public lands.

These proposed rules would implement restrictions prescribed within the FONM Dog Management Plan that was approved on July 5, 2016. The plan was analyzed under environmental assessment DOI-BLM-CA-C090-2016-0021-EA (Fort Ord National Monument Dog Management Plan), and associated Decision Record and Finding of No Significant Impact. The plan considered various dog management prescriptions across the monument within four different planning units. One of the planning units, the Inland Range Planning Unit, contains extremely hazardous military munitions and public use opportunities are greatly limited.

When the former Fort Ord military installation closed in 1994, the Secretary of the Army transferred administration of approximately 7,205 acres to the BLM via a letter of transfer to the Secretary of Interior on October 18, 1996. Those lands are now part of the 14,651 acre FONM that was designated by President Obama under Proclamation 8803. The Army currently manages approximately 7,446 acres of the FONM and will transfer those lands to the BLM for administration following a munitions cleanup being performed under the Comprehensive Environmental Response, Compensation, and Liability Act.

The BLM issued a notice of emergency closure and established restrictions on use of public lands on the former Fort Ord on December 5, 1996 (61 FR 64530). Since that time, the BLM has applied those restrictions as they pertain to public use, but those restrictions did not address management of dogs on these public lands. On September 7, 2007, the BLM State Director approved a Record of Decision for the Southern Diablo Mountain Range and Central Coast of California Resource Management Plan (RMP) that directed the BLM's Central Coast Field Office to develop a dog management plan for FONM due to conflicts between visitors, attacks on livestock, and impacts to wildlife. On April 8, 2015, the BLM notified the public of its intent to develop a dog management plan and, using the 1996 emergency closure, initiated an interim dog leash restriction on public lands at FONM due to increasing conflicts between visitors, attacks on livestock, hazards from munitions, and impacts to wildlife. The BLM held three public scoping workshops (July 28 and 29, 2015, and August 5, 2015) to solicit public input on the development of the draft dog management plan. The proposed supplementary rules are the logical conclusion of the dog management planning process.

On May 17, 2016, the BLM released the Draft FONM Dog Management Plan and associated environmental assessment (DOI-BLM-CA-C090-2016-0021-EA) for a 30 day comment period. The proposed supplementary rules were included with the draft plan and were analyzed within the environmental assessment. One comment was made on the proposed supplementary rules that resulted in a minor editorial change regarding the definition of “yield” as is described in the proposed rule text.

On July 5, 2016 the BLM approved the Final FONM Dog Management Plan and associated environmental assessment (DOI-BLM-CA-C090-2016-0021-EA). The proposed supplementary rules (when approved) will supplement some of the December 1996 restrictions and April 2015 restrictions under 43 CFR 8364.1 and 43 CFR 8341.2 and enact new rules that are specified in the Final FONM Dog Management Plan. The proposed supplementary rules also would implement existing Monterey County ordinances germane to dog use under 43 CFR 8365.1-6, 43 U.S.C. 1733(a), 16 U.S.C. 670h(c)(5), and 43 U.S.C. 315a that were disclosed and analyzed within the approved plan.

The proposed supplementary rules are broken into three categories. Proposed supplementary rules numbered 1 through 9 are new and would implement new direction from the approved dog management plan. Proposed supplementary rules 10 through 15 are not new, but would implement previous restrictions that were established in 1996 (see 61 FR 64530) and that are consistent with the national monument proclamation of 2012 (i.e. Proclamation 8803), and the BLM 2007 Resource Management Plan. Finally, proposed supplementary rules 16 and 17 are existing Monterey County ordinances that the BLM proposes to adopt as supplementary rules in order to facilitate cooperation between BLM rangers and local law enforcement officials.

The proposed supplementary rules are not a significant regulatory action and are not subject to review by the Office of Management and Budget under Executive Orders 12866 and 13563. They would not have an effect of $100 million or more on the economy. The proposed supplementary rules would not adversely affect in a material way the economy, productivity, competition, jobs, the environment, public health and safety, or State, local, or tribal governments or communities. The proposed supplementary rules would not create a serious inconsistency or otherwise interfere with an action taken or planned by another agency. The proposed supplementary rules would not alter the budgetary effects of entitlements, grants, user fees or loan programs, or the rights or obligations of their recipients, nor do they raise novel legal or policy issues. They would merely impose rules of conduct and impose other limitations on certain recreational and commercial activities on certain public lands to protect natural resources and human health and safety.

Executive Order 12866 requires each agency to write regulations that are simple and easy to understand. The BLM invites your comments on how to make these proposed supplementary rules easier to understand, including answers to questions such as the following:

(1) Are the requirements in the supplementary rules clearly stated?

(2) Do the supplementary rules contain technical language or jargon that interferes with their clarity?

(3) Does the format of the supplementary rules (grouping and order of sections, use of headings, paragraphing, etc.) aid or reduce clarity?

(4) Would the supplementary rules be easier to understand if they were divided into more (but shorter) sections?

(5) Is the description of the supplementary rules in the SUPPLEMENTARY INFORMATION section of this preamble helpful in understanding the supplementary rules? How could this description be more helpful in making the supplementary rules easier to understand?

Please send any comments you have on the clarity of the rule to the addresses specified in the ADDRESSES section.

The BLM has prepared an environmental assessment (EA) that analyzed different dog management alternatives on FONM under Section 102(2)(C) of the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 4332(2)(C). On July 5, 2016, the BLM approved the Final FONM Dog Management Plan and associated environmental assessment (DOI-BLM-CA-C090-2016-0021-EA). The proposed supplementary rules are also consistent with the Record of Decision for the Southern Diablo Mountain Range and Central Coast of California RMP approved in 2007.

Congress enacted the Regulatory Flexibility Act (RFA) of 1980, as amended, 5 U.S.C. 601-612, to ensure that government regulations do not unnecessarily or disproportionately burden small entities. The RFA requires a regulatory flexibility analysis if a rule would have a significant economic impact, either detrimental or beneficial, on a substantial number of small entities. The proposed supplementary rules would merely impose reasonable restrictions on certain recreational or commercial activities on public lands in order to protect natural resources and the environment, and provide for human health and safety. Therefore, the BLM has determined under the RFA that the proposed supplementary rules would not have a significant economic impact on a substantial number of small entities.

The proposed supplementary rules are not a “major rule” as defined under 5 U.S.C. 804(2). The proposed supplementary rules would merely revise the rules of conduct for public use of limited areas of public lands and would not affect commercial or business activities of any kind.

The proposed supplementary rules would not impose an unfunded mandate of more than $100 million per year; on State, local, or tribal governments in the aggregate; or on the private sector; nor would they have a significant or unique effect on small governments. The proposed supplementary rules would have no effect on governmental or tribal entities and would impose no requirements on any of these entities. The proposed supplementary rules would merely revise the rules of conduct for public use of limited areas of public lands and would not affect tribal, commercial, or business activities of any kind. Therefore, the BLM is not required to prepare a statement containing the information required by the Unfunded Mandates Reform Act at 2 U.S.C. 1531.

The proposed supplementary rules do not represent a government action capable of interfering with constitutionally protected property rights. Therefore, the BLM has determined that the proposed supplementary rules would not cause a taking of private property or require further discussion of takings implications under this Executive order.

The proposed supplementary rules would not have a substantial direct effect on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with Executive Order 13132, the BLM has determined that the proposed supplementary rules would not have sufficient federalism implications to warrant preparation of a federalism assessment.

Under Executive Order 12988, the BLM has determined that the proposed supplementary rules would not unduly burden the judicial system, and that they meet the requirements of sections 3(a) and 3(b)(2) of Executive Order 12988.

In accordance with Executive Order 13175, the BLM has found that the proposed supplementary rules do not include policies that would have tribal implications. The proposed supplementary rules would merely revise the rules of conduct for public use of limited areas of public lands.

In accordance with Executive Order 13352, the BLM has determined that these proposed consolidated supplementary rules would not impede facilitating cooperative conservation; would take appropriate account of and consider the interests of persons with ownership or other legally recognized interests in land or other natural resources. The rules would properly accommodate local participation in the Federal decision-making process, and would provide that the programs, projects, and activities are consistent with protecting public health and safety.

In developing these proposed supplementary rules, the BLM did not conduct or use a study, experiment, or survey requiring peer review under the Information Quality Act (Pub. L. 106-554). In accordance with the Information Quality Act, the DOI has issued guidance regarding the quality of information that it relies on for regulatory decisions. This guidance is available on the DOI's Web site at http://www.doi.gov/ocio/information_management/iq.cfm.

Under Executive Order 13211, the BLM has determined that the proposed supplementary rules would not comprise a significant energy action, and that they would not have an adverse effect on energy supplies, production, or consumption.

The proposed supplementary rules do not directly provide for any information collection that the Office of Management and Budget must approve under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501-3521. Moreover, any information collection that may result from Federal criminal investigations or prosecutions conducted under the proposed supplementary rules are exempt from the provisions of 44 U.S.C. 3518(c)(1).

The principal author of these proposed supplementary rules is Eric Morgan, Monument Manager, Central Coast Field Office, 940 2nd Avenue, Marina, CA 93933.

For the reasons stated in the preamble and under the authorities for supplementary rules found under 43 CFR 8365.1-6, 43 U.S.C. 1733(a), 16 U.S.C. 670h(c)(5), and 43 U.S.C. 315a, the BLM California State Director proposes to issue supplementary rules for public lands managed by the BLM within the boundaries of the FONM, to read as follows:

Designated route means any road or trail that the BLM has signed and shown on trail maps where public use is authorized.

Dog means any domestic dog that is not classified as a “service animal.”

“Off-leash-opportunity-route” means a specific road or trail on FONM that has been designated by the BLM to allow some opportunities for dogs to be off leash under specific circumstances.

Service animal means a dog that is individually trained to do work or perform tasks for people with disabilities as covered under the Americans with Disabilities Act.

Street-legal vehicle means a vehicle, such as an automobile, motorcycle, or light truck, that is equipped and licensed for use on a public street and/or highway and that is subject to registration under the California Vehicle Code 4000(a)(1).

Unattended dog means any dog that is unaccompanied by an owner and/or handler whether on tether or otherwise.

Yield means slowing or stopping forward progress to a point where it is possible to safely pass another visitor without injuring, startling, or surprising that visitor. For bicycles, the passing speed shall be no greater than 10 mph on roads, and 5 mph on single-track trails.

Unless otherwise authorized by the BLM, the following prohibitions apply to all BLM-managed public lands on the Fort Ord National Monument (FONM):

1. You must not bring a dog into the Inland Range Planning Unit. Service animals accompanying a disabled person as accommodated by the Americans with Disabilities Act are excluded from this provision.

2. You must physically restrain, or keep your dog(s) on a leash or cord not to exceed 6 feet in length, at all times while you are on a road or trail that has not been designated as an “off-leash-opportunity-route.”

3. You and/or your dog must not walk or roam off a designated route, including any route designated as an “off-leash-opportunity route.”

4. You must physically restrain, or keep your dog on a leash or cord not to exceed 6 feet in length, on a designated “off-leash-opportunity-route” when you are within 100 feet of another person and/or dog that is not with your party.

5. You must not allow your dog to roam over 50 feet away from you while on a designated “off-leash-opportunity-route.”

6. You must not allow your dog to enter any vernal pool or pond, or roam within 20 feet of any such area, unless you and your dog are on a route designated for public use.

7. You must carry a leash for each dog you have with you.

8. You are prohibited from leaving a dog unattended, even if on tether, within a crate, or within an unoccupied motor vehicle.

9. Visitors must yield the path, on both roads and trails, to other visitors in the following manner: Bicycles must yield to pedestrians and equestrians; and pedestrians must yield to equestrians. For bicycles, the passing speed shall be no greater than 10 mph on roads, and 5 mph on single-track trails.

10. Motorized vehicles and other motorized devices, including electronic bicycles, are prohibited on all roads and trails excluding Creekside Terrace Road and Badger Hills Driveway. Motorized vehicle use on these two roadways is restricted to highway licensed street-legal vehicles.

11. Use and/or occupancy of all lands within the FONM, including leaving personal property unattended, is prohibited between 1/2 hour after sunset and 1/2 hour before sunrise.

12. All use (including pet use) is restricted to designated routes and trails. Open routes and trails are indicated on BLM maps and signed with route or trail markers. Any unsigned route which does not appear on the most current BLM map is closed to all uses.

13. Campfires and other open flame fires are prohibited.

14. Possession or discharge of fireworks, including “safe and sane” fireworks, is prohibited.

15. Wood cutting and the collection of downed wood are prohibited.

16. It shall be unlawful for the owner or person having custody of any dog, either willfully or through failure to exercise due care or control, to allow said dog to defecate and to allow the feces thereafter to remain on FONM other than within trash receptacles provided for such purposes. This includes bagged feces—Reference Monterey County ordinance, 8.36.030.

17. All dogs under four months of age shall be kept under physical restraint by the owner, keeper, or harborer when on FONM—Reference Monterey County ordinance, 8.20.020.

18. Dogs on FONM shall wear a license tag with or without a chip implant at all times. The tag shall be attached at all times to a collar, harness, or other suitable device upon the dog for which the license tag was issued—Reference Monterey County ordinance, 8.08.040.

The following persons are exempt from these supplementary rules: Any Federal, State, or local officer or employee in the scope of their duties; members of any organized law enforcement, rescue, or fire-fighting force in performance of an official duty; and any person whose activities are authorized in writing by the BLM.

Any person who violates any of these supplementary rules may be tried before a United States Magistrate and fined in accordance with 18 U.S.C. 3571, imprisoned no more than 12 months under 43 U.S.C. 1733(a) and 43 CFR 8360.0-7, or both.

In accordance with 43 CFR 8365.1-7, State or local officials may also impose penalties for violations of California law.

The Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) requires each regional fishery management council to submit any FMP or amendment to NMFS for review and approval, partial approval, or disapproval. The Magnuson-Stevens Act also requires that NMFS, upon receiving an FMP or amendment, publish an announcement in the Federal Register notifying the public that the FMP or amendment is available for review and comment.

The FMP being revised by Amendment 43 was prepared by the Gulf Council and, if approved, would be implemented by NMFS through regulations at 50 CFR part 622 under the authority of the Magnuson-Stevens Act.

Currently, hogfish in the Gulf exclusive economic zone (EEZ) are managed as a single stock with a stock ACL and no allocation between the commercial and recreational sectors. Although hogfish occur throughout the Gulf, they are caught primarily off the Florida west coast. Generally, the fishing season for both sectors is open year-round, January 1 through December 31. However, accountability measures (AMs) for hogfish specify that if commercial and recreational landings exceed the stock ACL in a fishing year, then during the following fishing year if the stock ACL is reached or is projected to be reached, the commercial and recreational sectors will be closed for the remainder of the fishing year. The hogfish ACL and AMs were implemented in 2012 (76 FR 82044, December 29, 2011). The AMs were triggered when the hogfish ACL was exceeded in 2012, and the 2013 season was closed on December 2 because NMFS determined that the 2013 hogfish stock ACL had been harvested (78 FR 72583, December 3, 2013). The stock ACL was exceeded again in 2013. However, there was no closure in 2014, and the stock ACL was not exceeded in the 2014 or 2015 fishing years.

In 2014, the Florida Fish and Wildlife Conservation Commission (FWC) completed the most recent stock assessment for hogfish through the Southeast Data, Assessment, and Review process (SEDAR 37). SEDAR 37 divided the hogfish stock into three stocks based upon genetic analysis as follows: The West Florida stock, Florida Keys/East Florida stock, and the Georgia through North Carolina stock. The West Florida stock is completely within the jurisdiction of the Gulf Council and the Georgia through North Carolina stock is completely within the jurisdiction of the South Atlantic Council. The Florida Keys/East Florida stock crosses the Councils' jurisdictional boundary, with a small portion of the stock extending into the Gulf Council's jurisdiction off the west coast of Florida. Based on SEDAR 37 and the Gulf and South Atlantic Councils' Scientific and Statistical Committee (SSC) recommendations, NMFS determined the West Florida stock is not overfished or undergoing overfishing, the Florida Keys/East Florida stock is overfished and undergoing overfishing, and the status of the Georgia-North Carolina stock status is unknown.

Amendment 43 includes actions to revise the FMU for hogfish to be the West Florida stock and define the geographic range of this stock consistent with the South Atlantic Council's proposed boundary between the Florida Keys/East Florida and West Florida stocks, and set the SDC and ACL for the West Florida stock. In addition, actions in Amendment 43 increase the minimum size limit for the West Florida stock, and remove the powerhead exception for harvest of hogfish in the Gulf reef fish stressed area.

The South Atlantic Council developed and submitted for review by the Secretary of Commerce a rebuilding plan for the Florida Keys/East Florida hogfish stock through Amendment 37 to the FMP for the Snapper-Grouper Fishery of the South Atlantic Region. Because SEDAR 37 indicated only a small portion of the Florida Keys/East Florida stock extends into the Gulf Council's jurisdiction off south Florida, the Gulf Council through Amendment 43 proposes to revise the hogfish FMU to be the West Florida stock and define the geographic range of this stock consistent with the South Atlantic Council's proposed boundary between the Florida Keys/East Florida and West Florida hogfish stocks near Cape Sable, Florida. This boundary would be a line extending west along 25°09′ N. lat. to the outer boundary of the EEZ. The Gulf Council would manage hogfish (the West Florida stock) in the Gulf EEZ except south of 25°09′ N. lat. off the west coast of Florida. The South Atlantic Council would manage hogfish (the Florida Keys/East Florida stock) in the Gulf EEZ south of 25°09′ N. lat. off the west coast of Florida, and in the South Atlantic EEZ to the state border of Florida and Georgia. The boundary line near Cape Sable is south of the line used in SEDAR 37, which defined the West Florida stock as north of the Monroe and Collier County, Florida, boundary line. Therefore, it is possible that some fish from the Florida Keys/East Florida stock will be harvested under the regulations by the Gulf Council. However, the majority of hogfish landings in Monroe County occur in the Florida Keys, and the proposed boundary is far enough north of the Florida Keys that fishing trips originating in the Florida Keys rarely travel north of the boundary, and far enough south of Naples and Marco Island, Florida, that fishing trips originating from these locations rarely travel south of the boundary. In addition, the boundary line proposed by the Gulf and South Atlantic Councils is currently used by the FWC as a regulatory boundary for certain state-managed species. Using a pre-existing management boundary will increase enforceability and help fishermen by simplifying regulations across adjacent management jurisdictions.

In accordance with section 304(f) of the Magnuson-Stevens Act, the Gulf Council requested that the Secretary designate the South Atlantic Council as the responsible Council for management of the Florida Keys/East Florida hogfish stock in Gulf Federal waters south of 25°09′ N. lat. near Cape Sable on the west coast of Florida. If the Gulf Council's request is approved, the Gulf Council would continue to manage hogfish in Federal waters in the Gulf, except in Federal waters south of this boundary. Therefore, the South Atlantic Council, and not the Gulf Council, would establish the management measures for the entire range of the Florida Keys/East Florida hogfish stock, including in Federal waters south of 25°09′ N. lat. near Cape Sable in the Gulf. Commercial and recreational for-hire vessels fishing for hogfish in Gulf Federal waters, i.e., north and west of the jurisdictional boundary between the Gulf and South Atlantic Councils (approximately the Florida Keys), as defined at 50 CFR 600.105(c), would still be required to have the appropriate Federal Gulf reef fish permits, and vessels fishing for hogfish in South Atlantic Federal waters, i.e., south and east of the jurisdictional boundary, would still be required to have the appropriate Federal South Atlantic snapper-grouper permits. Those permit holders would still be required to follow the sale and reporting requirements associated with the respective permits.

NMFS specifically seeks public comment regarding the revised stock boundaries and the manner in which the Councils would have jurisdiction over these stocks if both Amendment 37 for the South Atlantic and Amendment 43 for the Gulf of Mexico are approved and implemented.

Currently, the only SDC implemented for Gulf hogfish is the overfishing threshold, or maximum fishing mortality rate (MFMT). The overfished threshold, or minimum stock size threshold (MSST), and maximum sustainable yield (MSY) actions were disapproved when the Gulf Council's Sustainable Fisheries Act Generic Amendment was approved by NMFS on November 17, 1999. Amendment 43 would maintain the current MFMT value at the fishing mortality corresponding to 30 percent of the stock's spawning potential ratio (SPR) (F30 % SPR). Amendment 43 would also specify the MSST and MSY values. The MSY proxy would equal the equilibrium yield at F30 % SPR and the MSST value would be equal to 75 percent of the spawning stock biomass capable of producing an equilibrium yield of the MSY proxy.

The current ACL and annual catch target (ACT) for Gulf hogfish were established based on 1999 through 2008 landings. The ACL and ACT were set using the Gulf Council's acceptable biological catch (ABC) control rule for stocks that have not been assessed but are stable over time. Amendment 43 would set the ACL for the West Florida hogfish stock at 219,000 lb (99,337 kg), round weight, for the 2017 and 2018 fishing years based on recommendations from the Gulf Council's SSC after its review of SEDAR 37. In 2019, and subsequent fishing years, the ACL would be set at the equilibrium ABC of 159,300 lb (72,257 kg), round weight. The Gulf Council decided to discontinue the designation of an ACT, because it is not used in the current AMs or for other management purposes.

Although the West Florida hogfish stock is not overfished or undergoing overfishing, the stock could be subject to seasonal closures should landings exceed the stock ACL and AMs are triggered. In 2012 and 2013, the stock ACL was exceeded, thus causing landings to be closely monitored in 2013 and 2014. This resulted in an in-season closure in 2013 but not in 2014. To reduce the likelihood of AMs being triggered, the Gulf Council determined that increasing the minimum size limit in Federal waters from 12 inches (30.5 cm), fork length (FL), to 14 inches (35.6 cm), FL, could reduce the directed harvest rate and, consequently, reduce the probability of exceeding the stock ACL and triggering AMs. This action has an additional benefit of allowing the hogfish to grow larger and have an additional spawning opportunity before being susceptible to harvest.

Currently, as described at 50 CFR 622.35(a), a regulatory exemption allows for the harvest of hogfish using powerheads in the reef fish stressed area. Amendment 43 would remove this exemption. The powerhead exemption provision is a regulatory holdover from when hogfish were listed as a species in the fishery but not in the reef fish FMU. Harvesting species in the FMU with powerheads in the stressed area was prohibited. By removing the powerhead exemption for hogfish, hogfish would be subject to the same regulations for Gulf reef fish in the stressed area as other species in the reef fish FMU. The coordinates for the reef fish stressed area are provided in 50 CFR part 622, Table 2 in Appendix B.

A proposed rule that would implement Amendment 43 has been drafted. In accordance with the Magnuson-Stevens Act, NMFS is evaluating Amendment 43 to determine whether it is consistent with the FMP, the Magnuson-Stevens Act, and other applicable law. If the determination is affirmative, NMFS will publish the proposed rule in the Federal Register for public review and comment.

The Gulf Council has submitted Amendment 43 for Secretarial review, approval, and implementation. Comments on Amendment 43 must be received by January 3, 2017. Comments received during the respective comment periods, whether specifically directed to Amendment 43 or the proposed rule, will be considered by NMFS in its decision to approve, partially approve, or disapprove Amendment 43. Comments received after the comment periods will not be considered by NMFS in this decision. All comments received by NMFS on Amendment 43 or the proposed rule during their respective comment periods will be addressed in the final rule.