        DEPARTMENT OF HEALTH AND HUMAN SERVICES
        Centers for Medicare & Medicaid Services
        42 CFR Part 416, 418, 482, 483, and 485
        [CMS-3302-P]
        RIN 0938-AS29
        Medicare and Medicaid Program; Revisions to Certain Patient's Rights Conditions of Participation and Conditions for Coverage

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

          ACTION:
          Proposed rule.

          SUMMARY:

          This proposed rule would revise the applicable conditions of participation (CoPs) for providers, conditions for coverage (CfCs) for suppliers, and requirements for long-term care facilities, to ensure that certain requirements are consistent with the Supreme Court decision in United States v. Windsor, 570 U.S.12, 133 S.Ct. 2675 (2013), and HHS policy. Specifically, we propose to revise certain definitions and patient's rights provisions, in order to ensure that same-sex spouses in legally-valid marriages are recognized and afforded equal rights in Medicare and Medicaid participating facilities.

          DATES:
          To be assured consideration, comments must be received at one of the addresses provided below, no later than 5 p.m. on February 10, 2015.

          ADDRESSES:
          In commenting, please refer to file code CMS-3302-P. Because of staff and resource limitations, we cannot accept comments by facsimile (FAX) transmission.
          You may submit comments in one of four ways (please choose only one of the ways listed):
          1. Electronically. You may submit electronic comments on this regulation to http://www.regulations.gov. Follow the “Submit a comment” instructions.
          2. By regular mail. You may mail written comments to the following address only: Centers for Medicare & Medicaid Services, Department of Health and Human Services, Attention: CMS-3302-P, P.O. Box 8013, Baltimore, MD 21244-8013.
          Please allow sufficient time for mailed comments to be received before the close of the comment period.
          3. By express or overnight mail. You may send written comments to the following address only: Centers for Medicare & Medicaid Services, Department of Health and Human Services, Attention: CMS-3302-P, Mail Stop C4-26-05, 7500 Security Boulevard, Baltimore, MD 21244-1850.
          4. By hand or courier. Alternatively, you may deliver (by hand or courier) your written comments only to the following addresses prior to the close of the comment period:

          a. For delivery in Washington, DC—Centers for Medicare & Medicaid Services, Department of Health and Human Services, Room 445-G, Hubert H. Humphrey Building, 200 Independence Avenue SW., Washington, DC 20201.

          (Because access to the interior of the Hubert H. Humphrey Building is not readily available to persons without Federal government identification, commenters are encouraged to leave their comments in the CMS drop slots located in the main lobby of the building. A stamp-in clock is available for persons wishing to retain a proof of filing by stamping in and retaining an extra copy of the comments being filed.)

          b. For delivery in Baltimore, MD—Centers for Medicare & Medicaid Services, Department of Health and Human Services, 7500 Security Boulevard, Baltimore, MD 21244-1850.

          If you intend to deliver your comments to the Baltimore address, call telephone number (410) 786-9994 in advance to schedule your arrival with one of our staff members.
          Comments erroneously mailed to the addresses indicated as appropriate for hand or courier delivery may be delayed and received after the comment period.

          For information on viewing public comments, see the beginning of the SUPPLEMENTARY INFORMATION section.

          FOR FURTHER INFORMATION CONTACT:
          Ronisha Davis, (410) 786-6882.

        SUPPLEMENTARY INFORMATION:

          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.
        Table of Contents

          This proposed rule is organized as follows:

          I. Background
          A. United States v. Windsor Decision
          B. Statutory and Regulatory Authority
          II. Provisions of the Proposed Regulation
          A. Ambulatory Surgical Centers Condition for Coverage—Patient Rights (§ 416.50)
          B. Hospice Care (Part 418)
          C. Conditions of Participation for Hospitals (Part 482)
          D. Requirements for States and Long-Term Care (LTC) Facilities (Part 483)
          E. Conditions of Participation: Community Mental Health Centers (CMHCs) (Part 485, Subpart J)
          III. Collection of Information Requirements
          IV. Response to Comments
          V. Regulatory Impact Statement
          Regulations Text

        I. Background
        A. United States v. Windsor Decision
        In United States v. Windsor, 570 U.S. 12, 133 S. Ct. 2675 (2013), the Supreme Court held that section 3 of the Defense of Marriage Act (DOMA) is unconstitutional because it violates the Fifth Amendment (See Windsor, 133 S. Ct.2675, 2695). Section 3 of DOMA, provided that in determining the meaning of any Act of the Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word `marriage' meant only a legal union between one man and one woman as husband and wife, and the word `spouse' could refer only to a person of the opposite sex who was a husband or a wife (1 U.S.C. 7).

        The Supreme Court concluded that this section, by prohibiting Federal recognition of same-sex marriages that were lawfully entered into or recognized under state law, “undermines both the public and private significance of state-sanctioned same-sex marriages” and found that “no legitimate purpose” overcomes section 3's “purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect” (Windsor, 133 S. Ct. at 2694-95). Following the Supreme Court's opinion in Windsor, the Federal government is permitted to recognize the validity of same-sex marriages when administering Federal statutes and programs. And HHS has adopted a policy of treating same-sex marriages on the same terms as opposite-sex marriages to the greatest extent reasonably possible.

        This proposed rule would revise certain conditions of participation (CoPs) for providers, conditions for coverage (CfCs) for suppliers, and requirements for long-term care facilities to ensure that the requirements at issue are consistent with the Windsor decision and HHS policy to treat same-sex marriages on the same terms as opposite-sex marriages to the greatest extent reasonably possible. As discussed in detail below, we propose to revise certain definitions and patient's rights provisions to ensure that legally married same-sex spouses are recognized and afforded equal rights in Medicare and Medicaid participating facilities. For all Medicare and Medicaid provider and supplier types, we have conducted a review of the Code of Federal Regulations (CFR) for instances in which our regulations draw on state law for purposes of defining “representative”, “spouse”, and similar terms in which reference to a spousal relationship is explicit or implied. We have identified 9 provisions that we believe should be revised in light of the Windsor decision and HHS policy. Currently, these provisions could be interpreted to support the denial of Federal rights and privileges to a same-sex spouse if the state of residence does not recognize same-sex marriages. If we do not make these revisions, our regulations would not afford equal treatment in Medicare and Medicaid participating facilities to same-sex spouses whose marriages were lawfully celebrated in jurisdictions that recognize same-sex marriage. In light of the Windsor decision and HHS policy, we believe that it is appropriate to revise these CoPs, CfCs, and requirements to ensure that these valid same-sex marriages are treated on the same terms as opposite-sex marriages in these Federal programs. The applicable provisions are located in the CoPs and CfCs for Ambulatory Surgical Centers (ASCs), Hospices, Hospitals, Long-Term Care (LTC) facilities, and Community and Mental Health Centers (CMHCs). We note that we did not find any regulations that we believe require amendment to achieve our policy goals for equal treatment within the CoPs and CfCs for the other provider and supplier types; therefore they are not included in this regulation. However, we want to emphasize that the Windsor decision and HHS policy affect all provider and supplier types. In addition, on December 12, 2014, CMS issued guidance to state survey agencies regarding the impact of the Supreme Court's decision in United States v. Windsor on how references to terms such as “spouse”, “marriage”, “family”, and “representative” should be interpreted in our regulations and the associated guidance concerning current CoPs, CfCs, and requirements except where the applicable regulation specifically requires application or interpretation in accordance with state law. With respect to those regulations that did not explicitly bar such an interpretation, we have taken the approach in our guidance that such terms include a same-sex spouse, regardless of where the couple resides or the jurisdiction in which the provider or supplier providing health care services to the individual is located, if the same-sex marriage was lawful where entered into and, if the marriage was celebrated in a foreign jurisdiction, it would be recognized in at least one state.

        We also note that on September 27, 2013 and May 30, 2014, we issued Windsor-related guidance regarding Medicaid eligibility determinations (SHO #13-006, available at http://medicaid.gov/Federal-Policy-Guidance/Downloads/SHO-13-006.pdf and SHO #14-005, available at http://www.medicaid.gov/Federal-Policy-Guidance/Downloads/SMD-14-005.pdf) on the implications of the Windsor decision for state flexibility regarding the recognition of same-sex marriages in determining eligibility for Medicaid and the Children's Health Insurance Program (CHIP). We note that Medicaid eligibility and CoP/CfC policies addressed in this proposed rule are administered by different statutes and are administered by state Medicaid agencies and CMS, respectively.
        This proposed rule addresses certain regulations governing Medicare and Medicaid participating providers and suppliers where current regulations look to state law in a matter that implicates (or may implicate) a marital relationship. Our goal is to provide equal treatment to spouses, regardless of their sex, whenever the marriage was valid in the jurisdiction in which it was entered into, without regard to whether the marriage is also recognized in the state of residence or the jurisdiction in which the health care provider or supplier is located, and where the Medicare program explicitly or impliedly provides for specific treatment of spouses.
        B. Statutory and Regulatory Authority
        Various sections of the Social Security Act (the Act) define the various terms that the Medicare program employs with respect to each provider and supplier type and list the requirements that each provider and supplier must meet to be eligible for Medicare and Medicaid participation. Each statutory provision also specifies that the Secretary of Health and Human Services (the Secretary) may establish other requirements as the Secretary finds necessary in the interest of the health and safety of patients, although the exact wording of such authority may differ slightly among different provider and supplier types.
        Given the desire to expedite the proposed changes and the common rationale for each proposed change, we believe the most prudent course of action is to publish these proposed revisions concerning the different providers and suppliers at issue in a single proposed rule. The following are the statutory authorities for the regulatory revisions we are proposing:
        • Ambulatory Surgical Centers (ASCs)—section 1832(a)(2)(F)(i) of the Act.
        • Hospices—section 1861(dd)(2)(G) of the Act.
        • Hospitals—section 1861(e)(9) of the Act.
        • Long-Term Care (LTC) Facilities: Skilled Nursing Facilities (SNFs)—section 1819(d)(4)(B) of the Act, Nursing Facilities (NFs)—section 1919(d)(4)(B) of the Act.

        • Community Mental Health Centers (CMHCs)—section 1861(ff)(3)(B)(iv) of the Act, section 1913(c)(1) of the Public Health Service Act (42 U.S.C. 201 et seq.).
        II. Provisions of the Proposed Regulations
        Consistent with the U.S. Supreme Court's holding in United States v. Windsor and HHS policy, for purposes of the CoPs and CfCs at issue, we are proposing to recognize marriages between individuals of the same sex who were lawfully married under the law of the state, territory, or foreign jurisdiction where the marriage was entered into (“celebration rule”) (assuming at least one state would recognize the marriage), regardless of where the couple resides or the jurisdiction in which the provider or supplier providing health care services to the individual is located, regardless of any state law to the contrary. We are proposing revisions to provisions throughout the CoPs and CfCs that draw on state-law definitions of “representative”, “spouse,” or similar terms that can implicate a spousal relationship. These revisions would promote equality and ensure the recognition of the validity of same-sex marriages when administering the patient rights and services at issue. Below, we describe each of the proposed revisions.
        A. Ambulatory Surgical Centers Condition for Coverage—Patient Rights (§ 416.50)
        Section 416.50 sets forth the requirements that an ASC must follow when informing a patient or a patient's representative or surrogate of the patient's rights. Current regulations at § 416.50(e)(3) look to state law to determine a patient's legal representative or surrogate in situations where a state court has not adjudged a patient incompetent. We propose to add language at paragraph (e)(3) that would establish the requirement that the same-sex spouse of a patient must be afforded treatment equal to that afforded to an opposite-sex spouse if the marriage was valid in the jurisdiction in which it was celebrated.
        B. Hospice Care (42 CFR Part 418)
        1. Definitions (§ 418.3)
        Section 418.3 sets forth the definition of “representative” when used throughout Part 418 as related to hospice care. Currently, the definition provides that a representative is an individual who has the authority under state law (whether by statute or pursuant to an appointment by the courts of the state) to authorize or terminate medical care or to elect or revoke the election of hospice care on behalf of a terminally ill patient who is mentally or physically incapacitated; in addition, the term may include a guardian under the regulatory definition. We propose to revise the definition of “representative” to provide that a same-sex spouse in a marriage that was valid in the jurisdiction in which it was celebrated must be treated as a “spouse” wherever state law authorizes a “spouse” to be a representative, but a court has not appointed a specific representative. We intend for the hospice to use a celebration rule in recognizing the same-sex spouse of a patient, regardless of whether the law in the jurisdiction where the patient or spouse resides or where the hospice is located recognizes the same-sex spouse.
        2. Condition of Participation: Patient's Rights (§ 418.52(b)(3))
        Section 418.52 sets forth the requirements for a hospice to inform a patient of his or her rights. Current regulations at § 418.52(b)(3) require a hospice to allow a patient's legal representative to exercise the patient's rights to the extent allowed by state law, if the patient has not been adjudged incompetent by a state court. Regulations at § 418.52(b)(3) refer to a representative “designated by the patient in accordance with state law.” We propose to add at paragraph (b)(3), language that establishes the requirement that the same-sex spouse of a patient must be afforded treatment equal to that afforded to an opposite-sex spouse if the marriage was valid in the jurisdiction in which it was celebrated.
        C. Conditions of Participation for Hospitals (Part 482)
        1. Condition of Participation: Patient's Rights (482.13)
        Regulations at § 482.13 set forth the requirements that a hospital must meet to protect and promote each patient's rights. Sections 482.13(a)(1) and § 482.13(b)(2), respectively, require a hospital to “inform each patient, or, when appropriate, the patient's representative (as allowed under state law), of the patient's rights, in advance of furnishing or discontinuing care,” and afford the patient “the right to make informed decisions regarding his or her care.” We propose to add at § 482.13(a)(1) and § 482.13(b)(2) the requirement that the same-sex spouse of a patient must be afforded treatment equal to that afforded to an opposite-sex spouse if the marriage is valid in the jurisdiction in which it was celebrated.
        2. Condition of Participation: Laboratory Services (§ 482.27)
        Regulations at § 482.27 require that a hospital must maintain, or have available, adequate laboratory services to meet the needs of its patients. Regulations at § 482.27(b) require hospitals to screen blood and blood products for potentially infectious diseases (specifically, the HIV virus and Hepatitis C virus) and to notify donors and patients as necessary. Section 482.27(b)(10) addresses notification both when the patient has been adjudged incompetent by a state court and when the patient is competent. In the case of a patient who is adjudged incompetent by a state court, the physician or hospital must notify a “legal representative designated in accordance with state law.” When the patient is competent, but state law permits a legal representative or relative to receive the information on the patient's behalf, the physician or hospital must notify the patient or patient's legal representative or relative. We propose to add at § 482.27(b)(10) the requirement that the same-sex spouse of a patient must be afforded treatment equal to that afforded to an opposite-sex spouse if the marriage is valid in the jurisdiction in which it was celebrated. This requirement would apply when state law designates or identifies a “spouse” as a legal representative in case of either competency or incompetency.
        D. Requirements for States and Long-Term Care (LTC) Facilities (42 CFR Part 483)
        1. Resident Rights (§ 483.10)
        Regulations at § 483.10 give residents the right to a dignified existence, self-determination, and communication with and access to persons and services inside and outside a facility. The regulations also require LTC facilities to protect and promote the rights of each resident. Under § 483.10(a)(4), when a resident has not been adjudged incompetent, any “legal surrogate designated in accordance with state law” may exercise such rights to the extent provided by state law. We propose to add language to § 483.10(a)(4) that would establish a requirement that, the same-sex spouse of a resident must be afforded treatment equal to that afforded to an opposite-sex spouse if the marriage was valid in the jurisdiction in which it was celebrated.
        2. Preadmission Screening and Resident Review (PASRR) Evaluation Criteria (§ 483.128)
        Regulations at § 483.128 set forth the criteria for a PASRR (currently abbreviated as PASARR in the regulations) evaluation. Section 483.128(c) specifies who must participate in the evaluation process, and paragraph (c)(2) requires that the individual's legal representative must participate, if one has been designated under state law. At § 483.128(c)(2), we propose to clarify that a same-sex spouse would be recognized and treated the same as an opposite-sex spouse if the marriage was valid in the jurisdiction in which it was celebrated.

        In addition, regulations at § 483.128(k) require that for both categorical and individualized determinations, findings of the evaluation must be interpreted and explained to the individual and, where applicable, a legal representative designated under state law. We propose a similar revision here to provide that, a same-sex spouse would be recognized and treated the same as an opposite-sex spouse if the same-sex marriage was valid in the jurisdiction in which it was celebrated.

        E. Conditions of Participation: Community Mental Health Centers (CMHCs) (Part 485, Subpart J)
        1. Definitions (§ 485.902)
        Regulations at § 485.902 set forth the definition of “representative” when used throughout Part 485, subpart J as related to care in CMHCs. We propose to revise the definition of “representative” to provide that the same-sex spouse of a client must be afforded treatment equal to that afforded to an opposite-sex spouse if the marriage was valid in the jurisdiction in which it was celebrated.
        2. Condition of Participation: Client Rights (485.910(b)(3))
        Regulations at § 485.910 require CMHCs to inform a client of his or her rights and protect and promote the exercise of these client rights. Section 485.910(b)(3) requires that, in the case of a client who has not been adjudged incompetent by the State court, “any legal representative designated by the client in accordance with state law” may exercise the client's rights to the extent allowed under state law. We propose to add to this provision the requirement that the same-sex spouse of a client must be afforded treatment equal to that afforded to an opposite-sex spouse if the marriage was lawful in the jurisdiction in which it was celebrated.
        III. Collection of Information Requirements
        This document does not impose any new information collection requirements, that is, reporting, recordkeeping or third-party disclosure requirements, as defined under the Paperwork Reduction Act of 1995 (44 U.S.C. ch. 35). However, it does make reference to existing information collection requirements; specifically, this document references disclosure requirements contained in § 482.13(a)(1) and § 482.27(b)(10). These requirements are already accounted for in the ICR associated with OMB control number 0938-0328. We are in the process of reinstating the ICR under 0938-0328 and will complete that process under notice and comment periods separate from those associated with this notice of proposed rulemaking.
        IV. Response to Comments

        Because of the large number of public comments we normally receive on Federal Register documents, we are not able to acknowledge or respond to them individually. We will consider all comments we receive by the date and time specified in the DATES section of this preamble, and, when we proceed with a subsequent document, we will respond to the comments in the preamble to that document.
        V. Regulatory Impact Statement
        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 $7.0 million to $35.5 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 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 2014, that threshold is approximately $141 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.
        In accordance with the provisions of Executive Order 12866, this regulation was reviewed by the Office of Management and Budget.

          List of Subjects
          42 CFR Part 416
          Health facilities, Health professions, Medicare, Reporting and recordkeeping requirements.
          42 CFR Part 418
          Health facilities, Hospice care, Medicare, Reporting and recordkeeping requirements.
          42 CFR Part 482
          Grant programs—health, Hospitals, Medicaid, Medicare, Reporting and recordkeeping requirements.
          42 CFR Part 483
          Grant programs—health, Health facilities, Health professions, Health records, Medicaid, Medicare, Nursing homes, Nutrition, Reporting and recordkeeping requirements, Safety.
          42 CFR Part 485
          Grant programs—health, Health facilities, Medicaid, Medicare, Reporting and recordkeeping requirements.

        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:

          PART 416—AMBULATORY SURGICAL SERVICES

        1. The authority citation for Part 416 continues to read as follows:

          Authority:
           Secs. 1102 and 1871 of the Social Security Act (42 U.S.C. 1302 and 1395hh).

        2. In § 416.50 paragraph (e)(3) is revised to read as follows:

          § 416.50
          Condition for coverage: Patient's rights.

          (e) * * *
          (3) If a State court has not adjudged a patient incompetent, any legal representative or surrogate designated by the patient may exercise the patient's rights to the extent allowed by state law regarding the scope of legal representation. The same-sex spouse of a patient must be afforded treatment equal to that afforded to an opposite-sex spouse if the marriage was valid in the jurisdiction in which it was celebrated.

          PART 418—HOSPICE CARE

        3. The authority citation for Part 418 continues to read as follows:

          Authority:
           Secs. 1102 and 1871 of the Social Security Act (42 U.S.C. 1302 and 1395hh).

        4. Section 418.3 is amended by revising the definition of “representative” to read as follows:

          § 418.3
          Definitions.

            Representative means an individual who has the authority under State law (whether by statute or pursuant to an appointment by the courts of the State) to authorize or terminate medical care or to elect or revoke the election of hospice care on behalf of a terminally ill patient who is mentally or physically incapacitated. This may include a legal guardian. The same-sex spouse of a patient must be afforded treatment equal to that afforded to an opposite-sex spouse if the marriage was valid in the jurisdiction in which it was celebrated. If a state court has appointed a representative, that person is the representative for these purposes.

        5. In § 418.52, paragraph (b)(3) is revised to read as follows:

          § 418.52
          Condition of participation: Patient's rights.

          (b) * * *
          (3) If a state court has not adjudged a patient incompetent, any legal representative designated by the patient in accordance with state law may exercise the patient's rights to the extent allowed by state law. The same-sex spouse of a patient must be afforded treatment equal to that afforded to an opposite-sex spouse if the marriage was valid in the jurisdiction in which it was celebrated.

          PART 482—CONDITIONS OF PARTICIPATION FOR HOSPITALS

        6. The authority citation for part 482 continues to read as follows:

          Authority:
           Secs. 1102, 1871, and 1881 of the Social Security Act (42 U.S.C. 1302, 1395hh, and 1395rr), unless otherwise noted.

        7. In 482.13, revise paragraph (a)(1) and (b)(2) to read as follows:

          § 482.13
          Condition of participation: Patient's rights.

          (a) * * *
          (1) A hospital must inform each patient, or when appropriate, the patient's representative (as allowed under State law), of the patient's rights, in advance of furnishing or discontinuing patient care whenever possible. The same-sex spouse of a patient must be afforded treatment equal to that afforded to an opposite-sex spouse if the marriage was valid in the jurisdiction in which it was celebrated.

          (b) * * *
          (2) The patient or his or her representative (as allowed under State law) has the right to make informed decisions regarding his or her care. The same-sex spouse of a patient must be afforded treatment equal to that afforded to an opposite-sex spouse if the marriage was valid in the jurisdiction in which it was celebrated. The patient's rights include being informed of his or her health status, being involved in care planning and treatment, and being able to request or refuse treatment. This right must not be construed as a mechanism to demand the provision of treatment or services deemed medically unnecessary or inappropriate.

        8. In 482.27, paragraph (b)(10) is revised to read as follows:

          § 482.27
          Condition of participation: Laboratory services.

          (b) * * *
          (10) Notification to legal representative or relative. If the patient has been adjudged incompetent by a State court, the physician or hospital must notify a legal representative designated in accordance with State law. If the patient is competent, but State law permits a legal representative or relative to receive the information on the patient's behalf, the physician or hospital must notify the patient or his or her legal representative or relative. The same-sex spouse of a patient must be afforded treatment equal to that afforded to an opposite-sex spouse if the marriage was valid in the jurisdiction in which it was celebrated. For possible HIV infectious transfusion beneficiaries that are deceased, the physician or hospital must inform the deceased patient's legal representative or relative. If the patient is a minor, the parents or legal guardian must be notified.

          PART 483—REQUIREMENTS FOR STATES AND LONG TERM CARE FACILITIES

        9. The authority citation for part 483 continues to read as follows:

          Authority:
           Secs. 1102, 1128I and 1871 of the Social Security Act (42 U.S.C. 1302, 1320a-7j, and 1395hh).

        10. In § 483.10, paragraph (a)(4) is revised to read as follows:

          § 483.10
          Resident's rights.

          (a) * * *
          (4) In the case of a resident who has not been adjudged incompetent by the state court, any legal-surrogate designated in accordance with state law may exercise the resident's rights to the extent provided by state law. The same-sex spouse of a resident must be afforded treatment equal to that afforded to an opposite-sex spouse if the marriage was valid in the jurisdiction in which it was celebrated.

        11. In § 483.128, paragraphs (c)(2) and (k) are revised to read as follows:

          § 483.128
          PASARR evaluation criteria.

          (c) * * *
          (2) The individual's legal representative, if one has been designated under state law. The same-sex spouse of a patient must be afforded treatment equal to that afforded to an opposite-sex spouse if the marriage was valid in the jurisdiction in which it was celebrated; and

          (k) Interpretation of findings to individual. For both categorical and individualized determinations, findings of the evaluation must be interpreted and explained to the individual and, where applicable, to a legal representative designated under state law. The same-sex spouse of a resident must be afforded treatment equal to that afforded to an opposite-sex spouse if the marriage was valid in the jurisdiction in which it was celebrated.

          PART 485—CONDITIONS OF PARTICIPATION: SPECIALIZED PROVIDERS

        12. The authority citation for part 485 continues to read as follows:

          Authority:
           Secs. 1102 and 1871 of the Social Security Act (42 U.S.C. 1302 and 1395(hh)).

        13. Section 485.902 is amended by revising the definition of “representative” to read as follows:

          § 485.902
          Definitions.

            Representative means an individual who has the authority under State law to authorize or terminate medical care on behalf of a client who is mentally or physically incapacitated. This includes a legal guardian. The same-sex spouse of a client must be afforded treatment equal to that afforded to an opposite-sex spouse if the marriage was valid in the jurisdiction in which it was celebrated.

        14. In § 485.910, paragraph (b)(3) is revised to read as follows:

          § 485.910
          Condition of participation: Client rights.

          (b) * * *
          (3) If the State court has not adjudged a client incompetent, any legal representative designated by the client is accordance with State law may exercise the client's rights to the extent allowed under State law. The same-sex spouse of a client must be afforded treatment equal to that afforded to an opposite-sex spouse if the marriage was valid in the jurisdiction in which it was celebrated.

          Dated: June 12, 2014.
          Marilyn Tavenner,
          Administrator, Centers for Medicare & Medicaid Services.
          Approved: June 18, 2014.
          Sylvia M. Burwell,
          Secretary, Department of Health and Human Services.

      [FR Doc. 2014-28268 Filed 12-11-14; 8:45 am]
      BILLING CODE 4120-01-P


        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Part 660
        [Docket No. 141222999-7741-01]
        RIN 0648-BE77
        Fisheries Off West Coast States; Coastal Pelagic Species Fisheries Management Plan; Adjustments to the Pacific Sardine Harvest Guideline Control Rule

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

          ACTION:
          Proposed rule.

          SUMMARY:
          Under the framework procedures of the Coastal Pelagic Species (CPS) Fishery Management Plan (FMP), NMFS proposes to revise the FRACTION parameter of the Pacific sardine harvest guideline (HG) control rule to use a 3-year average of ocean temperature data from the California Cooperative Oceanic Fisheries Investigations (CalCOFI) survey that takes place off southern and central California, rather than temperatures measured from the end of the Scripps Institution of Oceanography (SIO) Pier, and revise the upper bound of fraction from 15 percent to 20 percent. These changes are intended to better reflect the best available science and to better conserve and manage the northern subpopulation of Pacific sardine off the U.S. West Coast managed under the CPS FMP.

          DATES:
          Comments must be received by September 22, 2017.

          ADDRESSES:
          You may submit comments on this document identified by NOAA-NMFS-2015-0044 by any of the following methods:
          • Electronic Submissions: Submit all electronic public comments via the Federal e-Rulemaking Portal. Go to www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2015-0044, click the “Comment Now!” icon, complete the required fields, and enter or attach your comments.
          • Mail: Submit written comments to Barry A. Thom, Regional Administrator, West Coast Region, NMFS, 7600 Sand Point Way NE., Seattle, WA 98115-0070; Attn: Joshua Lindsay.

            Instructions: Comments must be submitted by one of the above methods to ensure that the comments are received, documented, and considered by NMFS. Comments sent by any other method, to any other address or individual, or received after the end of the comment period, may not be considered by NMFS. All comments received are a part of the public record and will generally be posted for public viewing on www.regulations.gov without change. All personal identifying information (e.g., name, address, etc.), confidential business information, or otherwise sensitive information submitted voluntarily by the sender will be publicly accessible. Do not submit confidential business information, or otherwise sensitive or protected information. NMFS will accept anonymous comments (enter “N/A” in the required fields if you wish to remain anonymous). Attachments to electronic comments will be accepted in Microsoft Word, Excel, or Adobe PDF file formats only.

          FOR FURTHER INFORMATION CONTACT:
          Joshua Lindsay, West Coast Region, NMFS, (562) 980-4034.

        SUPPLEMENTARY INFORMATION:

        The HG control rule, in conjunction with the overfishing limit (OFL) and acceptable biological catch (ABC) control rules in the FMP, are used to set annual harvest levels for the northern subpopulation of Pacific sardine (hereafter, simply Pacific sardine), in accordance with the Magnuson-Stevens Fishery Conservation and Management Act, 16 U.S.C. 1801 et seq. The HG formula for Pacific sardine is HG = [(Biomass-CUTOFF) * FRACTION * DISTRIBUTION] and was first established by Amendment 8 to the CPS FMP. FRACTION, expressed as a percentage, is dependent on oceanographic conditions, specifically ocean temperature, and is a proxy for EMSY (the exploitation rate for deterministic equilibrium maximum sustainable yield (MSY)). The value used for FRACTION in the control rule is calculated annually and varies with water temperature (a higher fraction for warmer ocean temperatures and a lower fraction for cooler temperatures). The rationale for setting FRACTION in the HG in this manner is that the productivity of the sardine stock is correlated to ocean temperatures, with sardines being more productive during times of higher ocean temperatures. FRACTION under the FMP is currently bounded between 5 and 15 percent, meaning that although the calculated EMSY estimate for any given year may be higher or lower, FRACTION is bounded and is never allowed to be higher than 15 percent or lower than 5 percent.

        Since 1999, the formula prescribed in the FMP used for calculating FRACTION has been based on an average 3-year sea surface temperature measured at the SIO Pier and an estimate of the relationship between Pacific sardine EMSY and ocean temperatures of:

        FRACTION = 0.248649805 T2−8.190043975 T + 67.4558326

        where T is the average three season sea surface temperature at SIO during the three preceding seasons.
        In 2010, new research by scientists at the NMFS Southwest Fisheries Science Center (SWFSC) called into question the original relationship between SIO temperature and productivity used in the analysis to establish the existing FRACTION parameter and control rule in the FMP. In February 2013, the Pacific Fishery Management Council (Council) and the SWFSC convened a workshop to further examine the temperature-recruitment relationship used to inform FRACTION. The scientists at this workshop found that although a temperature-recruitment correlation based on SIO was still scientifically valid, a temperature index based on data from the California Cooperative Oceanic Fisheries Investigations (CalCOFI) survey (a compilation of temperatures measured throughout the southern California bight, from now on referred to as CalCOFI index) explained a more significant amount of sardine recruitment variability and success than the SIO index and was generally better aligned with ocean temperatures in the primary habitat of Pacific sardine (PFMC 2013).
        Based on this new information, and a recommendation from their Scientific and Statistical Committee (SSC) that the CalCOFI index represented the best available science for Pacific sardine management, the Council adopted the use of the CalCOFI temperature index and a new temperature-recruitment relationship as follows:

        EMSY= 0.248649805 T2−8.190043975 T + 67.4558326

        This was adopted at their March 2014 meeting for use in the Pacific sardine OFL and ABC calculations and the Council stated their intent to also use the CalCOFI index in the calculation of the HG control rule, pending analysis on the impact of that change to the operation of the HG rule.

        As a result of further analyses presented to the Council on the use of the CalCOFI index to calculate FRACTION, the Council, at their November 2014 meeting, adopted and recommended to NMFS, and NMFS is proposing through this action, that the HG control rule be modified in the FMP so that the CalCOFI index and revised EMSY formula above be used in the calculation of the FRACTION. Additionally, the Council recommended, and NMFS is proposing through this action, that the upper bound on FRACTION is revised from 15 percent to 20 percent. These changes better reflect best available science as well as provide for better alignment with the existing function of the current HG rule by providing an improved representation of the CalCOFI temperature data and new knowledge regarding the productivity of Pacific sardine.

        Adjusting the upper bound of FRACTION from 15 percent to 20 percent is an attempt to scale the bounds on FRACTION to better reflect the mid-range of actual temperature readings observed in the CalCOFI data, thereby aligning the CalCOFI temperatures and the new temperature-EMSY relationship in a manner more similar to the old SIO-based relationship and to where the 5 to 15 percent range fell relative to typical SIO temperatures, although still on the lower range. This distinction can be seen by looking at the median temperature and corresponding EMSY for that temperature for both SIO and CalCOFI. The median of the observed SIO temperatures (16.98 degrees Celsius) equates to an EMSY of 7 percent; thereby falling within the range of the FRACTION bounds of 5 to 15 percent. The median of the observed CalCOFI temperatures (15.72 degrees Celsius) however equates to an EMSY of 18 percent, which is above an upper FRACTION bound of 15 percent. Therefore, increasing the upper bound of FRACTION to 20 percent allows FRACTION to be more in line with typical CalCOFI temperatures. By keeping the upper bound of FRACTION at 15 percent while using the new temperature index and EMSY relationship, FRACTION would rarely vary up or down because it would be bounded in the lower range of typical CalCOFI temperatures. This change to the upper bound of FRACTION is an attempt to maintain consistency with the original intent of the HG under the CPS FMP, which was to have a FRACTION parameter that varied based on the environmental conditions (i.e. temperature) experienced by the stock and to permit higher harvest rates to take advantage of periods when biomass and productivity are high, but still restrict harvest when biomass and productivity are low.
        Additionally this revision mirrors an increase in the modeled stochastic estimate of MSY for Pacific sardine from 0.12 during the analysis for Amendment 8 to 0.18 (PFMC 1999 and PFMC 2014; Hurtado-Ferro and A. E. Punt.) when based on the updated analysis and the new simulation model developed to examine this action (Hurtado-Ferro and Punt 2013). This increase in the modeled stochastic MSY estimate reflects a statistically identified increase in the understanding of sardine productivity and the ability of the stock to withstand a higher average fishing rate. Additionally, results from the simulation model developed to examine the risks associated with the control rule and an assessment of changing to a new temperature recruit index showed that bounding FRACTION at 15 percent compared to 20 percent did not provide substantial benefits to the sardine stock from a long-term population perspective or benefits to the ecosystem with regards to the amount of sardine left unharvested as potential forage for predators. However, increasing the upper bound to 20 percent is expected to result in a higher yield to the fishery over the long term.
        Classification
        Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Fishery Conservation and Management Act, the NMFS Assistant Administrator has determined that this proposed rule is consistent with the CPS FMP, other provisions of the Magnuson-Stevens Fishery Conservation and Management Act, and other applicable law, subject to further consideration after public comment.
        This proposed rule has been determined to be not significant for purposes of Executive Order 12866.
        This proposed rule is not expected to be an EO 13771 regulatory action because this proposed rule is not significant under EO 12866.
        The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration that this proposed rule, if adopted, would not have a significant economic impact on a substantial number of small entities, for the following reasons:
        The purpose of this rule is to use the best available science for calculating the FRACTION parameter in the Pacific sardine HG control rule under the CPS FMP and this is expected to result, over the long term, in harvest guidelines of a similar level to the status quo, except the sardine stock should be more robust, over the long term, because the control rule would use better science. This is accomplished by incorporating the use of a new temperature index into the calculation that more accurately tracks sardine productivity and by revising the upper FRACTION bound to 20 percent.
        For RFA purposes only, NMFS has established a small business size standard for businesses, including their affiliates, whose primary industry is commercial fishing (see 50 CFR 200.2). A business primarily engaged in commercial fishing (NAICS code 11411) is classified as a small business if it is independently owned and operated, is not dominant in its field of operation (including its affiliates), and has combined annual receipts not in excess of $11 million for all its affiliated operations worldwide.
        The small entities that would be affected by the proposed action are the vessels that harvest Pacific sardine as part of the West Coast CPS finfish fleet and are all considered small businesses under the above size standards. In 2014, there were approximately 81 vessels permitted to operate in the directed sardine fishery component of the CPS fishery off the U.S. West Coast: 58 vessels in the Federal CPS limited entry fishery off California (south of 39° N. lat.), and a combined 23 vessels in Oregon and Washington's state Pacific sardine fisheries. The average annual per vessel revenue in 2014 for the West Coast CPS finfish fleet was well below $20.5 million; therefore, all of these vessels are considered small businesses under the RFA.
        The proposed action is not expected to have direct or indirect socioeconomic impacts, and, therefore, it is not expected to reduce profitability of the affected entities. This action does not establish specific harvest limits and does not change the general function of the existing control rule, both of which might influence ex-vessel revenue and personal income. Instead, the proposed action only updates the environmental indicator underlying the FRACTION parameter of the HG control rule and modifies the control rule to reflect this new information. In general, the revised harvest control rule encompassing these changes is expected to produce similar quotas as the existing control rule.

        The CPS FMP and its implementing regulations require NMFS to calculate annual harvest levels by applying the harvest control rule formulas, such as the HG rule, to the current stock biomass estimate. Therefore, if the estimated biomass decreases or increases from one year to the next, so do the applicable quotas. Under the proposed action, harvest levels will continue to vary from year to year, primarily driven by changes in sardine productivity and therefore changes in biomass. The proposed change to the temperature index that dictates the FRACTION parameter in the HG control rule simply ensures that the best available science is used when calculating the HG for Pacific sardine. This rule would also adjust the upper bound of FRACTION from 15 percent to 20 percent. The reason for this change is that a FRACTION that ranges from 5 percent to 20 percent better reflects the mid-range of actual measured temperatures and more closely aligns with CalCOFI temperatures in a manner similar to where the 5 to 15 percent range fell, relative to the existing temperature index.
        Based on the analysis above, the proposed action, if adopted, will not have a significant economic impact on a substantial number of these small entities. As a result, an Initial Regulatory Flexibility Analysis is not required, and none has been prepared.
        References Cited

        The complete citations for the references cited in this document can be obtained by contacting NMFS (see ADDRESSES and FOR FURTHER INFORMATION CONTACT).

          Authority:
           16 U.S.C. 1801 et seq.

          Dated: August 17, 2017.
          Samuel D. Rauch, III,
          Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.

      [FR Doc. 2017-17820 Filed 8-22-17; 8:45 am]
      BILLING CODE 3510-22-P


        DEPARTMENT OF TRANSPORTATION
        Federal Transit Administration
        49 CFR Part 611
        [Docket No. FTA-2010-0009]
        RIN 2132-AB02
        Major Capital Investment Projects

          AGENCY:
          Federal Transit Administration (FTA), DOT.

          ACTION:
          Public meetings on ANPRM.

          SUMMARY:

          This document announces the date, time, and location of an additional outreach session concerning the Advance Notice of Proposed Rulemaking (ANPRM) for FTA's New Starts and Small Starts programs. Presentations delivered at the meeting will describe the provisions of the ANPRM issued by the Federal Transit Administration (FTA). Further outreach sessions, if scheduled, will be announced in a subsequent Federal Register notice.

          DATES:

            See
            SUPPLEMENTARY INFORMATION section for the meeting date.

          ADDRESSES:

            See
            SUPPLEMENTARY INFORMATION section for the meeting location.

          FOR FURTHER INFORMATION CONTACT:
          Elizabeth Day, Office of Planning and Environment, (202) 366-5159; for questions of a legal nature, Christopher Van Wyk, Office of Chief Counsel, (202) 366-1733. FTA is located at 1200 New Jersey Avenue, SE., Washington, DC 20590. Office hours are from 9 a.m. to 5:30 p.m., EST, Monday through Friday, except Federal holidays.

        SUPPLEMENTARY INFORMATION:

        FTA announced the time and location of its first two outreach meetings to discuss the ANPRM published on June 3, 2010 (75 FR 31383), noting that additional meetings would be announced in subsequent Federal Register notices. The meeting listed below is an additional outreach session that will provide a forum for FTA staff to make oral presentations regarding the ANPRM and provides an opportunity for attendees to ask questions. All outreach sessions are intended to encourage interested parties and stakeholders to submit their comments directly to the official docket for the ANPRM according to the instructions found in the June 3, 2010 Federal Register notice for the ANPRM.
        I. Meeting
        Information on the public outreach session meeting date and address follows: Monday, July 26, 2010, 5 p.m.-7 p.m., EST, 270 West 43rd Street, New York City 10036, NY (Minetta Room of the Westin Times Square Hotel), concurrent with the “2010 Sustainability and Public Transportation Workshop” sponsored by the American Public Transportation Association.
        II. Comment Format
        Meeting attendees will have an opportunity to pose questions to FTA staff and to the group as a whole. It is the responsibility of individuals who wish for their comments to become part of the official public record to submit their comments directly to the official docket for the ANPRM.
        III. Registration
        Registration is not required in order to attend the outreach session.
        IV. Special Accommodations
        All locations are ADA-accessible. Individuals attending a meeting who are hearing or visually impaired and have special requirements, or requiring special assistance, may obtain this by calling Elizabeth Day at (202) 366-5159.

          Issued in Washington, DC, on July 2, 2010.
          Dorval R. Carter, Jr.,
          Chief Counsel.

      [FR Doc. 2010-16732 Filed 7-8-10; 8:45 am]
      BILLING CODE 4910-57-P


        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Part 648
        [Docket No. 180220191-8191-01]
        RIN 0648-BH80
        Fisheries of the Northeastern United States; Summer Flounder, Scup, and Black Sea Bass Fisheries; Commercial Accountability Measure Framework Adjustment 13

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

          ACTION:
          Proposed rule; request for comments.

          SUMMARY:

          NMFS proposes modifications to the commercial summer flounder, scup, and black sea bass accountability measures, as recommended by the Mid-Atlantic Fishery Management Council. The proposed change would adjust the accountability measures based on the status of the stocks. This rule is intended to provide additional flexibility in determining when accountability measures are appropriate, similar to how the accountability measures are applied towards the recreational fisheries for these species.

          DATES:
          Comments must be received by September 10, 2018.

          ADDRESSES:

          An environmental assessment (EA) was prepared for this action and describes the proposed measures and other considered alternatives, and provides an analysis of the impacts of the proposed measures and alternatives. Copies of the Summer Flounder, Scup, and Black Sea Bass Commercial Accountability Measure Framework, including the EA, are available on request from Dr. Christopher M. Moore, Executive Director, Mid-Atlantic Fishery Management Council, Suite 201, 800 North State Street, Dover, DE 19901. These documents are also accessible via the internet at http://www.mafmc.org/s/sfsbsb-commercial-AM-FW-draftEA.pdf.

          You may submit comments on this document, identified by NOAA-NMFS-2018-0080, by either of the following methods:

            Electronic Submission: Submit all electronic public comments via the Federal e-Rulemaking Portal.
          1. Go to www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2018-0080,

          2. Click the “Comment Now!” icon, complete the required fields, and
          3. Enter or attach your comments.
          —OR—

            Mail: Submit written comments to Michael Pentony, Regional Administrator, National Marine Fisheries Service, 55 Great Republic Drive, Gloucester, MA 01930. Mark the outside of the envelope, “Comments on the Proposed Rule to Modify the Summer Flounder, Scup, and Black Sea Bass Commercial Accountability Measures.”

            Instructions: Comments sent by any other method, to any other address or individual, or received after the end of the comment period, may not be considered by NMFS. All comments received are part of the public record and will generally be posted for public viewing on www.regulations.gov without change. All personal identifying information (e.g., name, address, etc.), confidential business information, or otherwise sensitive information submitted voluntarily by the sender will be publicly accessible. NMFS will accept anonymous comments (enter “N/A” in the required fields if you wish to remain anonymous).

          FOR FURTHER INFORMATION CONTACT:
          Emily Gilbert, Fishery Policy Analyst, (978) 281-9244.

        SUPPLEMENTARY INFORMATION:

        General Background

        The summer flounder, scup, and black sea bass fisheries are managed cooperatively under the provisions of the Summer Flounder, Scup, and Black Sea Bass Fishery Management Plan (FMP) developed by the Mid-Atlantic Fishery Management Council and the Atlantic States Marine Fisheries Commission, in consultation with the New England and South Atlantic Fishery Management Councils. The management units specified in the FMP include summer flounder (Paralichthys dentatus) in U.S. waters of the Atlantic Ocean from the southern border of North Carolina northward to the U.S./Canada border, and scup (Stenotomus chrysops) and black sea bass (Centropristis striata) in U.S. waters of the Atlantic Ocean from 35°13.3′ N lat. (the approximate latitude of Cape Hatteras, North Carolina). States manage these three species within 3 nautical miles (4.83 km) of their coasts, under the Commission's management plan for summer flounder, scup, and black sea bass. The applicable species-specific Federal regulations govern vessels and individual fishermen commercially fishing in Federal waters of the exclusive economic zone, as well as vessels possessing a summer flounder, scup, or black sea bass Federal charter/party vessel permit, regardless of where they fish. This rule proposes to modify current Federal regulations that require accountability measures (AM) when the commercial annual catch limit (ACL) is exceeded for any of these three species. AMs and ACLs are only required in the Federal FMP and, as such, no joint action is needed with the Commission.
        There are currently two types of commercial sector AMs for summer flounder, scup, and black sea bass. The first is a pound-for-pound landings overage repayment that is applied when the commercial quota is exceeded. This AM is functioning as intended and would not be adjusted by this action. The second is a non-landings based AM that is applied to the commercial annual catch target (ACT) when the commercial annual catch limit (ACL) has been exceeded and the overage is caused by commercial fishery discards. This action would adjust this non-landings based AM for summer flounder, scup, and black sea bass. The proposed revisions are designed to better account for the variability in commercial discard estimates and provide additional flexibility to these AMs based on stock status and the biological consequences, if any, of estimated discard overages. NMFS adopted similar AMs for the recreational fisheries managed by the Council in 2013 (78 FR 76759; December 19, 2013).
        Proposed Action
        The Council reviewed the proposed regulations and deemed them necessary and appropriate to implement consistent with section 303(c) of the Magnuson-Stevens Conservation and Management Act.
        Incorporate Stock Status in Non-Landings AM Determination
        This rule proposes the following system of AMs to be applied when discards cause the commercial ACL to be exceeded.

        (1) If the current biomass (B) is above the biomass target (BMSY) (i.e., B/BMSY ≥ 1), no overage payback is required.
        (2) If the current biomass is above the biomass threshold (i.e., not overfished), but below the biomass target (1 ≥ B/BMSY ≥ 1/2), and the stock is not under a rebuilding plan, then the following non-landing payback is applied:
        a. If fishery discards cause the commercial ACL to be exceeded, but not the acceptable biological catch (ABC), no overage is required; or
        b. If the fishery discards casue the commercial ACL to be exceeded, and the ABC is exceeded, then a scaled, single-year adjustment to the commercial ACT would be made based on stock biomass (as explained below), so that the adjustment is larger the closer the overall biomass is to the threshold.
        (3) If the stock is overfished (i.e., the most recent estimate of biomass is below the threshold, or B/BMSY < 1/2), under a rebuilding plan, or the biological reference points (i.e., stock status) are unknown, then a pound-for-pound payback is required for any non-landings overage.
        Scaled Payback Calculation

        The Council recommends that the amount of a payback (if determined to be appropriate under criteria 2b, as defined above) be scaled relative to the biomass. The payback would be calculated as the difference between the catch and the ACL (i.e., the overage amount) and the payback coefficient. The payback coefficient is equal to the difference between the most recent estimate of BMSY and the current biomass, divided by 1/2 BMSY.

        This would result in a smaller payback the closer the estimated biomass is to the target and a larger payback the farther away the estimated biomass is from the target. This scaling is intended to minimize impacts of a payback for healthy stocks, while still accounting for the biological consequences of the overage. As previously noted under criterion 3, this scaling would not be used if the stock was overfished (i.e., if B/BMSY < 1/2), or if the stock status is unknown. In those cases, the payback would be equal to the full amount of the overage.
        Classification
        Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the Assistant Administrator has determined that this proposed rule is consistent with the Summer Flounder, Scup, and Black Sea Bass FMP, other provisions of the Magnuson-Stevens Act, and other applicable law, subject to further consideration after public comment.
        This proposed rule has been determined to be not significant for purposes of Executive Order 12866.
        The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration that this proposed rule, if adopted, would not have a significant economic impact on a substantial number of small entities.
        The Council conducted an evaluation of the potential socioeconomic impacts of the proposed measures in conjunction with an environmental assessment. According to the commercial ownership database, 910 affiliate firms landed summer flounder, scup, and/or black sea bass during 2014-2016, with 906 of those business affiliates categorized as small business and four categorized as large business. Summer flounder, scup, and black sea bass represented approximately 12 percent of the average gross receipts of the small entities considered and 3 percent of the average receipts of the large entities considered over this time period. This action does not affect the for-hire recreational fishery.
        Analyses indicate that the proposed action would range from no payback or to a pound-for-pound payback (status quo) and is not expected to substantially change fishing effort or the spatial and/or temporal distribution of current fishing effort. The proposed non-landing AM payback alternative is expected to minimize the frequency and magnitude of non-landing annual catch limit overage repayments. This alternative would make regulated small entities no worse off than they would be if no action was taken, and better off under current and expected future stock conditions.
        There are no new reporting or recordkeeping requirements contained in any of the alternatives considered for this action.

          List of Subjects in 50 CFR Part 648
          Fisheries, Fishing, Recordkeeping and reporting requirements.

          Dated: August 3, 2018.
          Samuel D. Rauch, III,
          Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.

        For the reasons set out in the preamble, 50 CFR part 648 is proposed to be amended as follows:

          PART 648—FISHERIES OF THE NORTHEASTERN UNITED STATES

        1. The authority citation for part 648 continues to read as follows:

          Authority:
           16 U.S.C. 1801 et seq.

        2. In § 648.103, paragraph (b)(3) is revised to read as follows:

          § 648.103
          Summer flounder accountability measures.

          (b) * * *
          (3) Non-landing accountability measure. In the event that the commercial ACL is exceeded and that the overage has not been accommodated through the landings-based AM, then the following procedure will be followed:
          (i) Overfishing, rebuilding, or unknown stock status. If the most recent estimate of biomass is below the BMSY threshold (i.e., B/BMSY is less than 0.5), the stock is under a rebuilding plan, or the biological reference points (B or BMSY) are unknown, and the commercial ACL has been exceeded, then the exact amount, in pounds, by which the most recent year's commercial catch estimate exceeded the most recent year's commercial ACL will be deducted, in the following fishing year from the commercial ACT, as a single-year adjustment.
          (ii) If biomass is above the threshold, but below the target, and the stock is not under rebuilding. If the most recent estimate of biomass is above the biomass threshold (B/BMSY is greater than 0.5), but below the biomass target (B/BMSY is less than 1.0), and the stock is not under a rebuilding plan, then the following AMs will apply:
          (A) If the Commercial ACL has been exceeded, but not the overall ABC, then no single-year AM payback is required.

          (B) If the Commercial ACL and ABC have been exceeded, then a scaled single-year adjustment to the commercial ACT will be made, in the following fishing year. The ACT will be reduced by the exact amount, in pounds, of the product of the overage, defined as the difference between the commercial catch and the commercial ACT, and the payback coefficient. The payback coefficient is the difference between the most recent estimate of biomass and BMSY (i.e., BMSY − B) divided by one-half of BMSY.
          (iii) If biomass is above BMSY. If the most recent estimate of biomass is above BMSY (i.e., B/BMSY is greater than 1.0), then no single-year AM payback is required.

        3. In § 648.123, paragraph (b) is revised to read as follows:

          § 648.123
           Scup accountability measures.

          (b) Non-landing accountability measure. In the event that the commercial ACL has been exceeded and the overage has not been accommodated through the landings-based AM, then the following procedure will be followed:
          (1) Overfishing, rebuilding, or unknown stock status. If the most recent estimate of biomass is below the BMSY threshold (i.e., B/BMSY is less than 0.5), the stock is under a rebuilding plan, or the biological reference points (B or BMSY) are unknown, and the commercial ACL has been exceeded, then the exact amount, in pounds, by which the most recent year's commercial catch estimate exceeded the most recent year's commercial ACL will be deducted, in the following fishing year from the commercial ACT, as a single-year adjustment.
          (2) If biomass is above the threshold, but below the target, and the stock is not under rebuilding. If the most recent estimate of biomass is above the biomass threshold (B/BMSY is greater than 0.5), but below the biomass target (B/BMSY is less than 1.0), and the stock is not under a rebuilding plan, then the following AMs will apply:
          (i) If the Commercial ACL has been exceeded, but not the overall ABC, then no single-year AM payback is required.

          (ii) If the Commercial ACL and ABC have been exceeded, then a scaled single-year adjustment to the commercial ACT will be made, in the following fishing year. The ACT will be reduced by the exact amount, in pounds, of the product of the overage, defined as the difference between the commercial catch and the commercial ACT, and the payback coefficient. The payback coefficient is the difference between the most recent estimate of biomass and BMSY (i.e., BMSY − B) divided by one-half of BMSY.
          (3) If biomass is above BMSY. If the most recent estimate of biomass is above BMSY (i.e., B/BMSY is greater than 1.0), then no single-year AM payback is required.

        4. In § 648.143, paragraph (b) is revised to read as follows:

          § 648.143
          Black sea bass accountability measures.

          (b) Non-landing accountability measure. In the event that the commercial ACL has been exceeded and the overage has not been accommodated through the landings-based AM, then the following procedure will be followed:
          (1) Overfishing, rebuilding, or unknown stock status. If the most recent estimate of biomass is below the BMSY threshold (i.e., B/BMSY is less than 0.5), the stock is under a rebuilding plan, or the biological reference points (B or BMSY) are unknown, and the commercial ACL has been exceeded, then the exact amount, in pounds, by which the most recent year's commercial catch estimate exceeded the most recent year's commercial ACL will be deducted, in the following fishing year from the commercial ACT, as a single-year adjustment.
          (2) If biomass is above the threshold, but below the target, and the stock is not under rebuilding. If the most recent estimate of biomass is above the biomass threshold (B/BMSY is greater than 0.5), but below the biomass target (B/BMSY is less than 1.0), and the stock is not under a rebuilding plan, then the following AMs will apply:
          (i) If the Commercial ACL has been exceeded, but not the overall ABC, then no single-year AM payback is required.

          (ii) If the Commercial ACL and ABC have been exceeded, then a scaled single-year adjustment to the commercial ACT will be made, in the following fishing year. The ACT will be reduced by the exact amount, in pounds, of the product of the overage, defined as the difference between the commercial catch and the commercial ACT, and the payback coefficient. The payback coefficient is the difference between the most recent estimate of biomass and BMSY (i.e., BMSY − B) divided by one-half of BMSY.
          (3) If biomass is above BMSY. If the most recent estimate of biomass is above BMSY (i.e., B/BMSY is greater than 1.0), then no single-year AM payback is required.

      [FR Doc. 2018-17031 Filed 8-8-18; 8:45 am]
       BILLING CODE 3510-22-P


        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Part 648
        [I.D. 010201D]
        New England Fishery Management Council; Public Meeting

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

          ACTION:
          Public meetings.

          SUMMARY:
          The New England Fishery Management Council (Council) will hold several public meetings, including a 3-day Council meeting, on January 23, 24, and 25, 2001, to consider actions affecting New England fisheries in the exclusive economic zone (EEZ).  During this period, the Council’s Enforcement, Red Crab and Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) Committees also will meet independently from and report back to the Council.

          DATES:
          Both the Enforcement and Red Crab Committees will meet on Tuesday, January 23, at 9 a.m.  The Council meeting will be held on Tuesday, January 23, 2001, beginning at 1:00 p.m., and on Wednesday and Thursday, January 24 and 25, at 8:30 a.m.  The Magnuson-Stevens Act Committee will meet on Wednesday, January 24, at 6 p.m.

          ADDRESSES:
          The meetings will be held at the Sheraton Ferncroft Hotel, 50 Ferncroft Road, Danvers, MA, 01923; telephone (978) 777-2500.  Requests for special accommodations should be addressed to the New England Fishery Management Council, 50 Water Street, Mill 2, Newburyport, MA 01950; telephone (978) 465-0492.

          FOR FURTHER INFORMATION CONTACT:
          Paul J. Howard, Executive Director, New England Fishery Management Council (978) 465-0492.

        SUPPLEMENTARY INFORMATION:
        Tuesday, January 23, 2001
        Enforcement Committee Meeting
        The committee intends to initiate a review of enforcement activities since the implementation of Amendment 5 to the Northeast Multispecies Fishery Management Plan (FMP).  The information will be used in documents supporting Amendment 13 to the FMP.  The committee also will finalize recommendations for Sea Scallop Framework Adjustment 14 and discuss issues related to measuring the cod-end mesh in fishing nets.
        Red Crab Committee Meeting
        The committee intends to discuss recent events in the red crab fishery and develop recommendations to the Council on issues related to potential overfishing of the red crab resource.
        Council Meeting

        After introductions, the meeting will begin with a report from the Council’s Research Steering Committee.  The committee chair will ask the Council to approve elements of a Request for Proposals (RFP), including research priorities.  The RFP will outline requirements under which fishermen and scientists may apply for funds to conduct collaborative groundfish or related research in New England.  During the Skate Committee Report to follow, the Council will consider a request for NMFS emergency or interim action to prohibit the possession of barndoor skates on vessels fishing in Federal waters.  There also will be a discussion and possible approval of a request to NMFS to eliminate, for management purposes, clearnose and rosette skate from the Northeast skate complex.  The Red Crab Committee will report on issues addressed at its earlier committee meeting.  These include recent changes in the deep-sea red crab fishery and consideration of a request for emergency or interim action to address overfishing as a result of the recent changes in the fishery.  The committee will also forward the results of their discussion concerning the need to develop a Red Crab FMP this year.
        Wednesday, January 24, 2001

        The Council meeting will begin with a closed session for approximately an hour to discuss personnel and internal administrative matters.  The open portion of the meeting will begin with a report from the Groundfish Committee.  There will be an update on the development of Amendment 13 to the Northeast Multispecies FMP, including a discussion of the biological objectives for the amendment (in light of Amendment 9 overfishing definitions) and progress on the development of management measures.  This also will serve as the initial meeting for Framework 36 to the Northeast Multispecies FMP.  Actions under consideration in the framework adjustment include alternatives that would address regulatory discards of Gulf of Maine cod and address combined landings and discards that exceed the 2000 target Total Allowable Catch, a measure to allow tuna purse seine vessels access to the current groundfish closed areas, expansion of the northern shrimp fishery area in the Gulf of Maine, an extension of the timeframe of the Western Gulf of Maine Closed Area and other issues identified by the Groundfish Committee and Council.  The Habitat Committee will review the court decision and order on American Oceans Campaign v. Secretary of Commerce Daley (the Essential Fish Habitat lawsuit) and will discuss Council responsibility to implement corrective action concerning the requirements of the National Environmental Policy Act.  The discussion will include a proposed approach to comply with the court order in the Northeast Multispecies Amendment 13 Environmental Impact Statement currently under development.  In the final agenda item for the day, the Spiny Dogfish Committee will recommend approval of annual specifications for the 2001-2002 fishing year; measures may include a Total Allowable Catch, quotas, trip limits, and/or any other measures specified in the Spiny Dogfish FMP.
        Magnuson-Stevens Act Committee Meeting
        Following adjournment of the Council meeting, the Magnuson-Stevens Act Committee will meet briefly to discuss the reauthorization of the Magnuson-Stevens Act and develop an approach to address issues proposed in the legislation.
        Thursday, January 25, 2001
        The third day of the Council meeting will begin with reports on recent activities from the Council Chairman, Executive Director, the NMFS Regional Administrator, Northeast Fisheries Science Center and Mid-Atlantic Fishery Management Council liaisons, and representatives of the Coast Guard, NMFS Enforcement and the Atlantic States Marine Fisheries Commission.  As part of a NMFS Stock Assessment Public Review Workshop, Northeast Fisheries Science Center staff will present an advisory on the stock status of sea scallops, silver hake, American plaice, and Gulf of Maine haddock.  During the afternoon session, the Council will consider approval of final action on Framework Adjustment 14 to the Atlantic Sea Scallop FMP and its related Draft Supplemental Environmental Impact Statement.  Four management issues will be addressed in the framework: (1) the annual adjustment to the days-at-sea available for fishing in the 2001-2002 and the 2002-2003 fishing years; (2) up to four 2-year area closures to protect small scallops; (3) a controlled fishing program to harvest scallops in the Hudson Canyon and Virginia Beach Areas; and (4) a new possession limit on in-shell scallops for limited access scallop vessels when inshore of the day-at-sea monitoring line south of 42°20’ N latitude.  The Council meeting will adjourn after addressing any other outstanding business.
        Although other non-emergency issues not contained in this agenda may come before this Council for discussion, those issues may not be the subjects of formal action during this meeting.  Council action will be restricted to those issues specifically listed in this notification and any issues arising after publication of this notification that require emergency action under section 305(c) of the Magnuson-Stevens Act, provided the public has been notified of the Council's intent to take final action to address the emergency.
        The New England Council will consider public comments at a minimum of two Council meetings before making recommendations to the National Marine Fisheries Service Regional Administrator on any framework adjustment to a fishery management plan.  If she concurs with the adjustment proposed by the Council, the Regional Administrator has the discretion to publish the action either as proposed or final regulations in the Federal Register.  Documents pertaining to framework adjustments are available for public review 7 days prior to a final vote by the Council.
        Special Accommodations

        This meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Paul J. Howard (see ADDRESSES) at least 5 days prior to the meeting date.

          Dated: January 3, 2001.
          Bruce C. Morehead,
          Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service.

      [FR Doc. 01-561 Filed 1-8-01; 8:45 am]
      BILLING CODE  3510-22-S