        DEPARTMENT OF TRANSPORTATION
        National Highway Traffic Safety Administration
        49 CFR Part 571
        [Docket No. NHTSA-2012-0036]
        RIN 2127-AL05
        Federal Motor Vehicle Safety Standards; Seat Belt Assembly Anchorages

          AGENCY:
          National Highway Traffic Safety Administration (NHTSA), Department of Transportation (DOT).

          ACTION:
          Supplemental notice of proposed rulemaking (SNPRM).

          SUMMARY:

          This document supplements NHTSA's March 2012 notice of proposed rulemaking (NPRM) to amend Federal Motor Vehicle Safety Standard (FMVSS) No. 210, “Seat belt assembly anchorages,” to specify a force application device (FAD) for use as a testing interface to transfer loads onto the seat belt anchorage system during compliance tests of anchorage strength. The agency received a number of comments on the NPRM that raised issues concerning the feasibility of the FAD proposal. After reviewing the comments, NHTSA has decided to propose in this SNPRM an alternative test procedure, i.e., one that would maintain the current FMVSS No. 210 body blocks and adopt procedures ensuring that the placement of the body blocks, at pre-load, is sufficiently specified. The agency requests comments on this alternative strategy and other potential enhancements to the current body block test procedure.

          DATES:
          Comments must be received on or before May 1, 2015.

          ADDRESSES:
          You may submit comments to the docket number identified in the heading of this document by any of the following methods:
          • Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the online instructions for submitting comments.
          • Mail: Docket Management Facility, M-30, U.S. Department of Transportation, West Building, Ground Floor, Rm. W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590.
          • Hand Delivery or Courier: West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., between 9 a.m. and 5 p.m. Eastern Time, Monday through Friday, except Federal holidays.
          • Fax: (202) 493-2251.
          Regardless of how you submit your comments, you should state the docket number of this document.
          You may call the Docket at 202-366-9324.

            Instructions: For detailed instructions on submitting comments and additional information on the rulemaking process, see the Public Participation heading of the Supplementary Information section of this document. Note that all comments received will be posted without change to http://www.regulations.gov, including any personal information provided. Please see the Privacy Act discussion below.

            Privacy Act: Anyone is able to search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the Federal Register notice published on April 11, 2000 (65 FR 19477-78).

          FOR FURTHER INFORMATION CONTACT:

            For non-legal issues: Ms. Carla Rush, Office of Crashworthiness Standards, National Highway Traffic Safety Administration, 1200 New Jersey Avenue SE., Washington, DC 20590 (telephone 202-366-4583, fax 202-493-2739).

            For legal issues: Mr. John Piazza, Office of the Chief Counsel, National Highway Traffic Safety Administration, 1200 New Jersey Avenue SE., Washington, DC 20590 (telephone 202-366-2992, fax 202-366-3820).

        SUPPLEMENTARY INFORMATION:
        Table of Contents

          I. Background
          a. NPRM for New FAD
          b. FMVSS No. 210
          c. History Surrounding the Development of the FAD
          II. Overview of NPRM Comments
          a. Design and Performance of the FAD Device
          b. Harmonization
          c. Proposed Test Procedure
          d. Cost and Lead Time
          III. Alternative Strategy Under Consideration—Maintaining the Body Blocks and Refining the Test Procedure
          a. Preliminary Zone Concept for Placement of the Body Blocks
          b. Planned Research To Evaluate Alternative Strategy
          IV. Request for Public Comments on Alternative Strategy
          V. Public Participation
          VI. Rulemaking Analyses and Notices

        I. Background
        a. NPRM for New FAD
        On March 30, 2012, the agency published in the Federal Register an NPRM (77 FR 19155) that proposed to amend FMVSS No. 210 to replace the pelvic body block and the upper torso body block with a new Force Application Device (FAD). The rationale provided for the proposal included the FAD's ease of use, that it is representative of the human form, and, most importantly, that it provides a consistent test configuration and load path to the seat belt assembly anchorages without affecting the stringency of the compliance test.
        b. FMVSS No. 210
        FMVSS No. 210, “Seat belt assembly anchorages,” applies to passenger cars, multipurpose passenger vehicles, trucks, and buses. The standard establishes requirements for seat belt assembly anchorages to ensure the anchorages are properly located for effective occupant restraint and to reduce the likelihood of their failure. As to the latter, the standard requires seat belt anchorages to withstand specified forces to increase the likelihood that the belts will remain attached to the vehicle structure in a crash. Under the standard, seat belt anchorage assemblies for combination lap/shoulder belts must withstand a 13,345 Newton (N) force (3,000 pounds) applied to the lap belt portion of the seat belt assembly simultaneously with a 13,345 N force applied to the shoulder belt portion of the seat belt assembly. The 13,345 N force must be attained in not more than 30 seconds and maintained for 10 seconds.1
           In the current standard, these forces are applied to the shoulder portion of the belt (for a lap/shoulder belt) by an upper torso body block (Figure 3 in FMVSS No. 210) and the lap belt portion of the belt by a pelvic body block 2
           (Figures 2A and 2B in FMVSS No. 210).

            1 For lap belt-only anchorages, the seat belt anchorage must withstand a force as it is increased to 22,241 N (5,000 pounds) in not more than thirty seconds and withstand that force as it is held for 10 seconds.

            2 The particular pelvic body block used depends on the type of seat. Typically the body block in Figure 2A of FMVSS No. 210 is used. The Figure 2B body block of FMVSS No. 210 is optionally used for center seating positions.

        c. History Surrounding the Development of the FAD
        The current standard does not expressly specify the position the body blocks must be in relative to the seat prior to the strength testing. The absence of this information has, in the past, resulted in manufacturers conducting compliance testing differently than NHTSA, as illustrated in an enforcement action brought against a manufacturer in the 1990s for an apparent noncompliance with FMVSS No. 210.3
           In the compliance test at issue in the Chrysler case, NHTSA positioned the pelvic body block away from the rear seat back. Chrysler argued that its vehicle met FMVSS No. 210 when tested with the body block placed against the seat back, and that NHTSA's placement of the pelvic body block forward of the seat back was not required by FMVSS No. 210. Ultimately, the U.S. Court of Appeals for the District of Columbia Circuit determined that NHTSA failed to provide adequate notice about the correct placement of the pelvic body block during the test.

            3 See United States v. Chrysler Corp., 158 F.3d 1350 (D.C. Cir. 1998).

        In the NPRM proposing the FAD, the agency identified several other challenges associated with the use of the body blocks in addition to the issues with positioning the devices. First, the body blocks typically require two technicians to position them, and positioning may be a somewhat iterative process because the upper torso block can move in a way that causes a loss of tension during set-up. Additionally, due to the range of motion associated with the body blocks (which can move independently of each other), there can be some spooling out of the seat belt webbing during an FMVSS No. 210 test. For some test fixtures utilizing a hydraulic ram with a fixed stroke, the ram can reach its full stroke before a requisite force level is reached.
        In order to address the issues identified by the Chrysler court and resolve some of the challenges associated with the test set-up and performance of the body blocks, the agency embarked on a program to develop a new FMVSS No. 210 test device. The FAD consists of an upper torso portion and a pelvic portion hinged together to form a one-piece device, and is available in two sizes. The two different size versions of the FADs are called FAD1 and FAD2. The external dimensions of the FAD1 are based on digital data developed by the University of Michigan Transportation Research Institute (UMTRI) as a representation of the 50th percentile adult male.4
           NHTSA developed the specifications for the FAD2, a smaller version of the force application device, to use at designated seating positions that are too narrow in width to accommodate the FAD1, such as some rear center seats in passenger cars and multipurpose passenger vehicles.

            4 Robbins, D., “Anthropometric Specifications for Mid-Size Male Dummy,” Volume 2, UMTRI, DOT HS 806 716 (1985).

        II. Overview of NPRM Comments
        The agency received 13 comments in response to the NPRM from vehicle manufacturers and groups, suppliers, and a test facility.5
           The commenters stated a number of concerns with the proposed use of the FAD. We believe that many of the commenters' concerns and questions might stem from lack of hands-on experience with the new FAD. While these comments will be responded to in the final notice, they are briefly summarized in the following sections.

            5 These included: The Alliance of Automobile Manufacturers, Recreation Vehicle Industry Association, Inc., National Truck Equipment Association, Truck & Engine Manufacturers Association, Hino Motors, Ltd., Navistar, Inc., Daimler Trucks North America, Nissan North America, Inc., American Honda Motor Co., Inc., EvoBus GmbH, Freedman Seating Company, Johnson Controls, Inc., and TÜV Rheinland Kraftfahrt GmbH.

        a. Design and Performance of the FAD Device

        Several commenters raised concerns associated with the performance of their seat belt assemblies during compliance testing if tested with the FADs. The medium to heavy-duty vehicle industry was notably concerned with the lack of testing with the FAD on medium to heavy-duty trucks and how the FAD could potentially affect the performance of their seat belt anchorages during compliance testing. A number of commenters noted the differences in the FAD's range of motion (i.e., the manner in which the FAD moved during testing) and load values (in NHTSA's testing) in comparison to the current body blocks.

        The agency also received several comments on the FAD's design. Commenters questioned the durability and strength of the FADs since the agency did not conduct tests to failure, as commenters suggested that vehicle manufacturers do. There were also concerns with respect to the potential for seat belt slippage during FAD testing because of the FAD's polyurethane smoothness. Commenters also believed there was potential for certain FAD parts to cause damage to the seat belt webbing, and expressed concern about an observation that the bridged pull yoke digs into the seat. Others asked why a test device with a human form is superior to the current blocks, and some made note of the increased weight of the FAD versus the current body blocks. Commenters also suggested checking the completeness of the drawing package (e.g., tolerances, indicating where forces should be applied) and requested 3-D data for the FADs.
        b. Harmonization
        Harmonization with other countries was also a reason some commenters gave for not supporting the use of the FAD. They argued that the use of the FAD would require additional testing on their part and would increase test costs. Several commenters suggested initiating a Global Technical Regulation to facilitate global harmonization.
        c. Proposed Test Procedure
        Several commenters raised questions or concerns regarding the proposed test procedure for the FADs. For example, there were requests for clarification on: Contact between adjacent FADs and the vehicle interior at pre-load and during the test; the belt slack procedure; the test position for an adjustable turning loop; the seating procedure when the seat centerline is not aligned with the seating reference point; and where exactly the forces need to be applied on the FAD. Commenters also suggested reducing the hold time requirement for the required load. Questions were also raised surrounding the proposed procedure for determining when to replace a FAD1 with a FAD2, and some suggestions were made on this procedure that pertain to only buses. Commenters also questioned the appropriateness of testing side-facing seats with the FADs and requested clarification on the associated pull direction. Additional suggestions were made regarding the proposed test procedure that include the use of a dedicated test belt and the use of a booster seat for the FAD2 based on its shoulder height.
        d. Cost and Lead Time
        Cost burden and lead time were major sources of concern, particularly for the medium to heavy-duty vehicle industry. Commenters argued that the cost of acquiring the FADs was underestimated. Commenters also stated that they would have to conduct tests to verify that the use of the FAD does not affect the compliance of their vehicles with the FMVSS No. 210 requirements, and if in fact it did affect the performance, they would incur redesign and certification costs. In addition, commenters stated that not harmonizing with the requirements of other countries would also drive up test costs. They suggest these costs far outweigh any cost savings attributed to the ease of use of the FADs. Some suggestions to reduce the burden of the proposal were to make the FAD an optional test device, or allow testing with the current body blocks for vehicles that are certified by their use and only require the use of the FAD when the vehicle undergoes recertification. Others suggested extending the lead time for any changeover to the FAD, and delaying the use of the FAD until it is a globally harmonized test device.
        III. Alternative Strategy Under Consideration—Maintaining the Body Blocks and Refining the Test Procedure

        The FAD was developed in order to, among other things, provide a consistent test configuration and load path to the seat belt assembly anchorages without affecting the stringency of the testing. Given the comments received on the NPRM, the agency has decided to evaluate the feasibility of maintaining the current body blocks and refining the test procedure such that the standard provides sufficient information about the pre-test positioning of the body blocks so that manufacturers are informed of the range of positions that may be tested to determine compliance.
        We emphasize that although the agency is considering the option of retaining the body blocks and refining the FMVSS No. 210 test procedure, the agency is still considering replacing the body blocks with the FAD, as proposed in the March 2012 NPRM, or possibly incorporating the FAD as an optional testing tool. The comments received in response to this SNPRM, along with the comments already received in response to the NPRM, as well as the results of the agency's ongoing research and development, will inform the agency's final decision.
        a. Preliminary Zone Concept for Placement of the Body Blocks
        The agency is considering specifying zones within which the body blocks would be placed for testing purposes, as it has already done in FMVSS No. 222, “School bus passenger seating and crash protection.” (See final rule upgrading FMVSS No. 222, 73 FR 62744, October 21, 2008.) As part of the 2008 upgrade to FMVSS No. 222, the agency adopted a positioning procedure for the torso body block used in the quasi-static test for lap/shoulder seat belts on school buses. The procedure establishes a zone in which the body block must be located. Specifically, after the pre-load application is complete, the origin of the torso body block radius 6
           at any point across the torso body block thickness must lie within a zone defined by specified boundaries. The forward boundary of this zone is established by a transverse vertical plane of the vehicle located 100 mm longitudinally forward of the seating reference point. The upper and lower boundaries of the zone are 75 mm above and below the horizontal plane located midway between the horizontal plane passing through the school bus torso belt adjusted height (specified in S3 of FMVSS No. 210), and the horizontal plane 100 mm below the seating reference point.

            6 The phrase “origin of the torso body block radius” is used in FMVSS No. 222. The phrase refers to the center of the flat edge of the torso body block.

        The agency is considering the possibility of utilizing zones such as the above for the initial placement of the current body blocks for FMVSS No. 210 compliance testing. Separate zones may be established for the torso and pelvic body blocks. By refining the current test procedure to include these zones, NHTSA intends for the standard to be clearer as to how the agency will position the current body blocks. The agency does not intend to increase the stringency of the standard per se.
        b. Planned Research To Evaluate Alternative Strategy
        The agency has initiated research to aid in the development of the zones bounding the initial placement for the current body blocks. The research will evaluate the zone concept across different vehicle types and seat configurations and establish the appropriate zone boundaries to ensure that it is feasible and practicable for all vehicles. This research will involve a range of seat and vehicle types including heavy vehicles. The research is expected to be completed in the winter of 2015.
        IV. Request for Public Comments on Alternative Strategy
        To assist the agency in evaluating whether and how to amend the current test procedure in order to maintain the use of the body blocks, NHTSA invites comments on the zone concept that is under consideration, as well as other possible solutions. Specifically, we request comments on, but not limited to, how the zones should be established in the vehicle environment, how to verify that the body blocks are within the specified zones under pre-load in the vehicle environment, and any make/model-specific issues that would impact the implementation of the proposed body block positioning procedure for all vehicles that must meet FMVSS No. 210. NHTSA encourages commenters to provide specific information or views on this matter and requests that the rationale for the comments be specific and supported by data, including any relevant analyses. While we do not intend to preclude commenters from identifying potential alternative solutions, we ask that the commenters' recommendations be consistent with the existing standard requirements and test procedure.
        V. Public Participation
        How do I prepare and submit comments?
        Your comments must be written and in English. To ensure that your comments are correctly filed in the docket, please include the docket number of this document in your comments.
        Your comments must not be more than 15 pages long. (49 CFR 553.21). We established this limit to encourage you to write your primary comments in a concise fashion. However, you may attach necessary additional documents to your comments. There is no limit on the length of the attachments.

        Comments may also be submitted to the docket electronically by logging into http://www.regulations.gov. Follow the online instructions for submitting comments.

        Please note that pursuant to the Data Quality Act, in order for substantive data to be relied upon and used by the agency, it must meet the information quality standards set forth in the OMB and DOT Data Quality Act guidelines. Accordingly, we encourage you to consult the guidelines in preparing your comments. OMB's guidelines may be accessed at http://www.whitehouse.gov/omb/fedreg/reproducible.html.

        How can I be sure that my comments were received?
        If you wish DOT's Docket Management Facility to notify you upon its receipt of your comments, enclose a self-addressed, stamped postcard in the envelope containing your comments. Upon receiving your comments, the Docket Management Facility will return the postcard by mail.
        How do I submit confidential business information?

        If you wish to submit any information under a claim of confidentiality, you should submit three copies of your complete submission, including the information you claim to be confidential business information, to the Chief Counsel, NHTSA, at the address given above under FOR FURTHER INFORMATION CONTACT. In addition, you should submit two copies, from which you have deleted the claimed confidential business information, to Docket Management at the address given above under ADDRESSES. When you send a comment containing information claimed to be confidential business information, you should include a cover letter setting forth the information specified in our confidential business information regulation (49 CFR part 512).
        Will the agency consider late comments?

        We will consider all comments received before the close of business on the comment closing date indicated above under DATES. To the extent possible, we will also consider comments received after that date. If the docket receives a comment too late for us to consider in developing a final rule (assuming that one is issued), we will consider that comment as an informal suggestion for future rulemaking action.

        How can I read the comments submitted by other people?

        You may read the comments at DOT's Docket Management Facility at the address given above under ADDRESSES. The hours of the facility are indicated above in the same location. You may also see the comments on the Internet. To read the comments on the Internet, go to http://www.regulations.gov. Follow the online instructions for accessing the dockets.
        Please note that even after the comment closing date, we will continue to file relevant information in the docket as it becomes available. Further, some people may submit late comments. Accordingly, we recommend that you periodically check the docket for new material.
        VI. Rulemaking Analyses and Notices
        a. Executive Order (E.O.) 12866 (Regulatory Planning and Review), E.O. 13563, and DOT Regulatory Policies and Procedures
        The agency has considered the impact of this rulemaking action under E.O. 12866, E.O. 13563, and the Department of Transportation's regulatory policies and procedures. This rulemaking was not reviewed by the Office of Management and Budget under E.O. 12866, “Regulatory Planning and Review.” The rulemaking action has also been determined to be not significant under the Department's regulatory policies and procedures.
        The cost impact of using the current FMVSS No. 210 body blocks would be minimal to nonexistent, since the status quo would basically be maintained.7
           The agency might develop procedures for installing and positioning the existing body blocks, but NHTSA does not believe that there would be significant incremental costs associated with using the procedures to test for compliance with FMVSS No. 210.

            7 The estimated impact of the proposal to adopt the FAD was discussed in the preamble to the March 30, 2012 NPRM (77 FR at 19159).

        b. Regulatory Flexibility Act
        The Regulatory Flexibility Act of 1980, as amended, requires agencies to evaluate the potential effects of their proposed and final rules on small businesses, small organizations and small governmental jurisdictions. I hereby certify that the approach considered by this SNPRM would not have a significant economic impact on a substantial number of small entities.

        The Small Business Administration's (SBA's) size standard regulation at 13 CFR part 121, “Small business size regulations,” prescribes small business size standards by North American Industry Classification System (NAICS) codes. NAICS code 336111, Automobile Manufacturing prescribes a small business size standard of 1,000 or fewer employees. NAICS code 336399, All Other Motor Vehicle Parts Manufacturing, prescribes a small business size standard of 750 or fewer employees. Although the majority of motor vehicle manufacturers would not qualify as a small business, there are a number of vehicle manufacturers that are small businesses. This SNPRM would not have a significant economic impact on these small businesses because the approach considered by this document would basically adopt the status quo used in FMVSS No. 210. The agency might develop procedures for installing and positioning the existing body blocks, but NHTSA does not believe that there would be significant incremental costs associated with using the procedures to test for compliance with FMVSS No. 210.
        Small organizations and small governmental units would not be significantly affected by this SNPRM since the potential cost impacts associated with this action would not significantly affect the price of new motor vehicles. The cost impact of using the current FMVSS No. 210 body blocks is minimal to nonexistent, since the status quo would basically be maintained.
        c. Executive Order 13132 (Federalism)
        NHTSA has examined today's SNPRM pursuant to Executive Order 13132 (64 FR 43255, August 10, 1999) and concluded that no additional consultation with States, local governments or their representatives is mandated beyond the rulemaking process. The agency has concluded that the rulemaking would not have sufficient federalism implications to warrant consultation with State and local officials or the preparation of a federalism summary impact statement. The proposed rule would not have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.”
        NHTSA rules can preempt in two ways. First, the National Traffic and Motor Vehicle Safety Act contains an express preemption provision: When a motor vehicle safety standard is in effect under this chapter, a State or a political subdivision of a State may prescribe or continue in effect a standard applicable to the same aspect of performance of a motor vehicle or motor vehicle equipment only if the standard is identical to the standard prescribed under this chapter. 49 U.S.C. 30103(b)(1). It is this statutory command by Congress that preempts any non-identical State legislative and administrative law addressing the same aspect of performance.
        The express preemption provision described above is subject to a savings clause under which “[c]ompliance with a motor vehicle safety standard prescribed under this chapter does not exempt a person from liability at common law.” 49 U.S.C. 30103(e). Pursuant to this provision, State common law tort causes of action against motor vehicle manufacturers that might otherwise be preempted by the express preemption provision are generally preserved.

        However, the Supreme Court has recognized the possibility, in some instances, of implied preemption of such State common law tort causes of action by virtue of NHTSA's rules, even if not expressly preempted. This second way that NHTSA rules can preempt is dependent upon there being an actual conflict between an FMVSS and the higher standard that would effectively be imposed on motor vehicle manufacturers if someone obtained a State common law tort judgment against the manufacturer, notwithstanding the manufacturer's compliance with the NHTSA standard. Because most NHTSA standards established by an FMVSS are minimum standards, a State common law tort cause of action that seeks to impose a higher standard on motor vehicle manufacturers will generally not be preempted. However, if and when such a conflict does exist—for example, when the standard at issue is both a minimum and a maximum standard—the State common law tort cause of action is impliedly preempted. See Geier v. American Honda Motor Co., 529 U.S. 861 (2000).
        Pursuant to Executive Orders 13132 and 12988, NHTSA has considered whether this proposed rule could or should preempt State common law causes of action. The agency's ability to announce its conclusion regarding the preemptive effect of one of its rules reduces the likelihood that preemption will be an issue in any subsequent tort litigation.

        To this end, the agency has examined the nature and objectives of today's proposed rule and finds that this proposed rule, like many NHTSA rules, would prescribe only a minimum safety standard. As such, NHTSA does not intend that this proposed rule would preempt state tort law that would effectively impose a higher standard on motor vehicle manufacturers than that established by today's proposed rule. Establishment of a higher standard by means of State tort law would not conflict with the minimum standard proposed here. Without any conflict, there could not be any implied preemption of a State common law tort cause of action.
        d. Unfunded Mandates Reform Act
        The Unfunded Mandates Reform Act of 1995 (UMRA) requires Federal agencies to prepare a written assessment of the costs, benefits and other effects of proposed or final rules that include a Federal mandate likely to result in the expenditure by State, local or tribal governments, in the aggregate, or by the private sector, of more than $100 million annually (adjusted annually for inflation, with base year of 1995). UMRA also requires an agency issuing a final rule subject to the Act to select the “least costly, most cost-effective or least burdensome alternative that achieves the objectives of the rule.” If made final, this proposed rule would not result in a Federal mandate that would likely result in the expenditure by State, local or tribal governments, in the aggregate, or by the private sector, of more than $100 million annually (adjusted annually for inflation, with base year of 1995).
        e. National Environmental Policy Act
        NHTSA has analyzed this proposed rule for the purposes of the National Environmental Policy Act. The agency has determined that implementation of this action will not have any significant impact on the quality of the human environment.
        f. Executive Order 12778 (Civil Justice Reform)
        With respect to the review of the promulgation of a new regulation, section 3(b) of Executive Order 12988, “Civil Justice Reform” (61 FR 4729, February 7, 1996) requires that Executive agencies make every reasonable effort to ensure that the regulation: (1) Clearly specifies the preemptive effect; (2) clearly specifies the effect on existing Federal law or regulation; (3) provides a clear legal standard for affected conduct, while promoting simplification and burden reduction; (4) clearly 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. This document is consistent with that requirement.
        Pursuant to this Order, NHTSA notes as follows. The preemptive effect of this proposed rule is discussed above. NHTSA notes further that there is no requirement that individuals submit a petition for reconsideration or pursue other administrative proceeding before they may file suit in court.
        g. Paperwork Reduction Act (PRA)
        Under the PRA of 1995, a person is not required to respond to a collection of information by a Federal agency unless the collection displays a valid OMB control number. In this notice of proposed rulemaking, we are not proposing any “collections of information” (as defined at 5 CFR 1320.3(c)).
        h. National Technology Transfer and Advancement Act

        Under the National Technology Transfer and Advancement Act of 1995 (NTTAA) (Pub. L. 104-113), all Federal agencies and departments shall use technical standards that are developed or adopted by voluntary consensus standards bodies, using such technical standards as a means to carry out policy objectives or activities determined by the agencies and departments. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies, such as the International Organization for Standardization (ISO) and the Society of Automotive Engineers (SAE) International. The NTTAA directs us to provide Congress, through OMB, explanations when we decide not to use available and applicable voluntary consensus standards.
        The agency identified an ISO technical report (TR 1417-1974) and an SAE International standard (J384, Rev. JUN94) that have testing recommendations for vehicle seat belt anchorages. Both recommend the use of body blocks, similar to those currently specified in FMVSS No. 210, for applying the required test loads. The alternative strategy the agency is now considering in this SNPRM would continue the use of the FMVSS No. 210 body blocks. Accordingly, the alternative strategy employing the current body blocks is consistent with the ISO report and SAE standard. However, NHTSA has tentatively determined that the ISO report and SAE standard, among other matters, do not specify the positioning of the body blocks referenced in both with sufficient specificity to achieve the goals of this rulemaking. Thus, NHTSA has decided to base this SNPRM on the existing FMVSS No. 210 body blocks rather than explore using new ones, and to develop possible test procedures that make clear how the body blocks are to be positioned during FMVSS No. 210 compliance testing.

          Authority:
           49 U.S.C. 322, 30111, 30115, 30117 and 30166; delegation of authority at 49 CFR 1.95.

          Raymond R. Posten,
          Associate Administrator for Rulemaking.

      [FR Doc. 2015-04162 Filed 2-27-15; 8:45 am]
      BILLING CODE 4910-59-P


        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Part 229
        [Docket No. 0011283341232-02; I.D. 091401B]
        RIN 0648-AN88
        Taking of Marine Mammals Incidental to Commercial Fishing Operations; Atlantic Large Whale Take Reduction Plan Regulations

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

          ACTION:
          Proposed rule; request for comments.

          SUMMARY:
          NMFS proposes to amend the regulations that implement the Atlantic Large Whale Take Reduction Plan (ALWTRP) to clarify its authority to temporarily restrict the use of lobster and gillnet fishing gear within defined areas to protect North Atlantic right whales, and to establish criteria and procedures for implementing such restrictions north of 40° N. latitude, in order to further reduce risk of entanglement of right whales by such gear.

          DATES:
          Comments on the proposed rule must be received by 5 p.m. EST on November 1, 2001.

          ADDRESSES:

          Send comments on this proposed rule to the Assistant Regional Administrator for Protected Resources, Protected Resources Division, NMFS, Northeast Region, 1 Blackburn Dr., Gloucester, MA 01930.  Comments will not be accepted if sent via e-mail or Internet. Copies of the Environmental Assessment/Regulatory Impact Review for this action can be obtained from the ALWTRP website listed under the Electronic Access portion of this document.  Atlantic Large Whale Take Reduction Team (ALWTRT) meeting summaries, and progress reports on implementation of the ALWTRP may be obtained by writing Gregg LaMontagne, NMFS, Northeast Region, 1 Blackburn Dr., Gloucester, MA 01930 or Katherine Wang, NMFS, Southeast Region, 9721 Executive Center Dr., St.Petersburg, FL 33702-2432.  For additional addresses and web sites for document availability see SUPPLEMENTARY INFORMATION.

          FOR FURTHER INFORMATION CONTACT:
          Gregg LaMontagne, NMFS, Northeast Region, 978-281-9291;  Katherine Wang, NMFS, Southeast Region, 727-570-5312; or Patricia Lawson, NMFS, Office of Protected Resources, 301-713-2322.

        SUPPLEMENTARY INFORMATION:
        Electronic Access
        -Several of the background documents for the ALWTRP and the take reduction planning process can be downloaded from the ALWTRP web site at http://www.nero.nmfs.gov/whaletrp/.  Copies of the most recent marine mammal stock assessment reports may be obtained by writing to Richard Merrick, NMFS, 166 Water St., Woods Hole, MA 02543 or can be downloaded from the Internet at http://www.wh.whoi.edu/psb/sar2000.pdf.  In addition, copies of the document entitled “Defining Triggers for Temporary Area Closures to Protect Right Whales from Entanglements: Issues and Options” are available by writing to Gregg LaMontagne, NMFS, Northeast Region, 1 Blackburn Dr., Gloucester, MA 01930 or can be downloaded from the Internet at http://www.nero.nmfs.gov/whaletrp/.   -
        Background

        The ALWTRP was developed pursuant to section 118 of the Marine Mammal Protection Act (MMPA) to reduce the level of serious injury and mortality of four species of large whales (fin, humpback, minke, and North Atlantic right) in East Coast lobster trap and finfish gillnet fisheries.  The background for the take reduction planning process and development of the ALWTRP is provided in the preambles to the proposed (62 FR 16519, April 7, 1997), the interim final (62 FR 39157, July 22, 1997), final (64 FR 7529, February 16, 1999), and interim final (65 FR 80368, December 21, 2000) rules implementing the ALWTRP.  Copies of these documents and supporting Environmental Assessments are available from the NMFS, Northeast Region (see ADDRESSES). -
        The ALWTRP is a multi-faceted plan that includes area closures, gear requirements in areas open to fixed gear fishing, gear research to develop new modifications to current practices and/or fishing techniques, a right whale Sighting Advisory System, and a disentanglement program to free whales caught in fishing gear.   -
        The ALWTRP (50 CFR 229.32) uses  time/area closures to protect right whales in critical habitat areas.  However, recent surveys have shown that right whales also aggregate outside of critical habitat areas, and outside of those areas otherwise periodically closed to fishing.  To protect right whales found in concentrations outside of the existing critical habitat areas and areas periodically closed to certain fisheries, NMFS proposes to clarify and use its authority under 50 CFR § 229.32 to temporarily restrict the use of lobster traps and/or gillnet gear in areas where right whales aggregate. -
        NMFS re-convened the ALWTRT twice, once in April and once in May 2000, to develop the details of a Dynamic Area Management (DAM) process to temporarily require or remove restrictions in areas quickly due to the unexpected presence or absence of right whales.  At these meetings, the ALWTRT discussed and developed several models for “triggering” a DAM zone based on whale density in a given area.  However, the ALWTRT did not produce consensus recommendations on any one set of whale density criteria and/or triggering levels.  It recommended that NMFS take into account ALWTRT discussions in developing this proposed rule. -
        This proposed rule would clarify NMFS’ authority under § 229.32 to implement DAM zones, and establish criteria and procedures to implement them. -

        The Northeast Fisheries Science Center (NEFSC) analyzed historic sighting and survey data, considered the ALWTRT discussions, and developed criteria based on the analysis and discussions.  NEFSC’s findings are contained in a document entitled “Defining Triggers for Temporary Area Closures to Protect Right Whales from Entanglements: Issues and Options” (see ADDRESSES for copies).  NMFS proposes to use the whale density threshold and other criteria described in the above mentioned paper to implement DAM zones under § 229.32. -

        A DAM zone would be triggered by a single reliable report from a qualified individual of 3 or more right whales within an area (75 nautical mils (nm2) (139 km2)) such that right whale density is equal to or greater than 0.04 right whales per nm2 (1.85 km2).  A qualified individual is an individual ascertained by NMFS to be reasonably able, through training or experience, to identify a right whale.  Such individuals include, but are not limited to, NMFS staff, U.S. Coast Guard and Navy personnel trained in whale identification, scientific research survey personnel, whale watch operators and naturalists, and mariners trained in whale species identification through disentanglement training or some other training program deemed adequate by NMFS.  A reliable report would be a credible right whale sighting based upon which a DAM zone would be triggered.  Areas for consideration for DAM are limited to areas north of 40° N latitude, given animals south of this area have not been observed feeding or otherwise grouped together for extended periods of time.   -
        Analyses of historical sighting data indicate that this criterion, of at least 3 whales in an area with a density greater than or equal to 0.04 right whales per nm2 (1.85 km2), provides for a level of density where whales are likely to maintain residency in an area for at least 10 to 20 days.  Residency indicates that whales may be actively feeding and, therefore, more vulnerable to entanglement.  Operationally, NMFS would use the following procedures and criteria to establish a DAM zone: -
        1.  A circle with a radius of at least 3 nm (5.6 km) would be drawn around each individual sighting (event).  This radius would be adjusted for the number of right whales seen in the sighting such that the density of 4 right whales per 100 nm2 (185.3 km2) is maintained.  The length of the radius would be  determined by taking the inverse of the 4 right whales per 100 nm2 (185.3 km2) density, which is 24 nm2 (44.5 km2) per whale.  That figure is equivalent to a radial distance of 2.77 nm (5.13 km) rounded up to 3 nm (5.6 km) for a single right whale sighted (3.91 nm (7.25 km) rounded up to 4 nm (7.41 km) for two whales, 4.79 nm (8.88 km) rounded up to 5nm (9.27 km) for three whales, etc). -
        2.  If any circle or group of contiguous circles includes 3 or more right whales, this core area and its surrounding waters would be a candidate DAM zone. -
        Once NMFS  identifies a core area containing 3 or more right whales, as described here, it would expand this initial core area to provide a buffer area in which the right whales could move and still be protected.  Operationally, NMFS would determine the extent of the DAM zone as follows:  -
        1.  A 15 NM (27.8 km) radius from the event epicenter would be used to draw a larger circular zone around each core area encompassing a concentration of right whales.  The event epicenter is the geographic center of all sightings on the first day of an event. -
        2.  The DAM zone would then be defined by latitude and longitude lines drawn outside but tangential to the circular buffer zone(s). -

        Once a DAM zone is identified, NMFS would determine whether to impose, in the zone, restrictions on fishing and/or fishing gear.  This determination would be based on a variety of factors, including but not limited to: the location of the DAM zone with respect to other fishery closure areas, weather conditions as they relate to the safety of human life at sea, the type and amount of gear already present in the area, and a review of recent right whale entanglement and mortality data.  If NMFS determines restrictions are necessary in the zone, NMFS may require removal of all gillnet and lobster trap gear from the zone within 2 days of the publication of a notice in the Federal Register.  NMFS may allow fishing within a DAM zone with specified gear if that gear is determined to sufficiently reduce the risk of entanglement to right whales.  NMFS may identify acceptable fishing practices and gear in a Federal Register notice.  Gear not in compliance with the imposed restriction may not be set in the DAM zone after the effective date of the restriction.  NMFS will publish a notice in the Federal Register announcing the establishment of the zone with restrictions imposed.  It will also announce them immediately upon filing the notice with the office of the Federal Register, which is generally 3 to 5 days before publication of the notice in the Federal Register. -
        If NMFS decides not to implement restrictions within a DAM zone, it would issue an alert to fishermen using appropriate media to inform them of the fact that right whale density in a certain area has triggered a DAM zone.  In addition, NMFS would provide detailed information on the location of the DAM zone and the number of animals sighted within it.  Furthermore, NMFS would request that fishermen voluntarily remove lobster trap and gillnet gear from a DAM zone and that no additional gear be set inside it.  -
        NMFS proposes to maintain a DAM zone for a minimum of 15 days from the date NMFS issues an alert (in the case of a zone where no restrictions are imposed), or 15 day period from the effective date of restrictions (in the case where restrictions are imposed).  At the conclusion of a 15-day period, the DAM zone would automatically expire, unless NMFS continues the zone to further protect concentrations of right whales.  Each extension would be for up to 15 days unless NMFS extends the time frame based on additional sightings. -

        NMFS may remove restrictions on the DAM zone or rescind an alert prior to its automatic expiration if there are survey efforts and no confirmed sightings of right whales by qualified individuals for 1 week or if other credible evidence indicates that right whales have left the designated zone.  NMFS would notify the public by issuing a notice in the Federal Register and through other appropriate media. -

        On May 9, 2001, NMFS used the criteria developed by the NEFSC to identify a restricted area for a group of 13 North Atlantic right whales in an area commonly called the Wilkinson Basin. This aggregation included several cow-calf pairs.  A Federal Register notice restricting fishing for a 15-day period in the Wilkinson Basin area contained the following requirements: -

        1. Removal of all gillnet gear within 48 hours of publication of the notice in the Federal Register.-- -

        2. Removal of at least 50 percent of vertical lines from all lobster gear within 48 hours of publication of the notice in the Federal Register. -

        The May 2001 closure was an important step toward responding quickly to the presence of right whales in areas where gillnet and lobster gear may present significant entanglement risks.  However, NMFS received public comments from fishermen, conservationists, and state managers regarding the DAM closure in the Wilkinson Basin and the efficacy of DAM in general.  For example, representatives from the lobster fishery were concerned that, as implemented, the DAM restrictions did not give them enough time to remove their gear from the water and that the DAM zone covered too vast an area.  NMFS will publish a notice in the Federal Register establishing the zone and restrictions imposed and will announce them immediately upon filing the notice with the office of the Federal Register, which is generally 3 to 5 days before publication in the Federal Register.
        In addition, conservation groups indicated that the requirement to remove 50-percent of vertical lines in lobster gear presented significant enforcement problems.  We agree that enforcement of a 50 percent removal of vertical lines from lobster gear would be difficult and, furthermore, do not believe that it would sufficiently reduce the risk to right whales and have therefore proposed a complete removal of all lobster gear in DAM zones.  Finally, some state managers desired more clarification regarding the role of the states when a DAM closure is triggered.  The states were also interested in determining whether a Federal DAM mechanism would preempt a state initiated response to unusual or unexpected sightings of right whales within state waters.  A Federal DAM would preempt a state initiated response to unusual or unexpected sightings of right whales within state waters unless the state response was equally or more protective than the Federal DAM.  Based on the scope of the responses received, NMFS has decided to issue this proposed rule to clarify its authority to implement future DAM closures, and to establish criteria and procedures for implementing DAM zones. -

        It is important to note that the agency is also in the process of developing proposed rules to implement Seasonal Area Management (SAM) and gear modifications to the ALWTRP for lobster trap gear in the offshore lobster waters, southern nearshore lobster waters and changes to the lobster and gillnet take reduction technology lists.  Under SAM, restrictions would be placed in areas more predictably used by right whales on a seasonal basis.  NMFS believes that implementation of SAM would reduce the need for use of DAM restricted zones to respond to observed concentrations of right whales.  -
        Classification
        NMFS prepared the following initial regulatory flexibility analysis that describes the economic impact for this proposed rule, which if adopted, would have on small entities: -
        This proposed rule would establish criteria and procedures to temporarily restrict fishing gear within defined areas on an expedited basis to protect concentrations of North Atlantic right whales.  The objective of this proposed rule, issued pursuant to authority in section 118 of the MMPA, is to reduce the level of serious injury to and mortality of North Atlantic right whales in East Coast lobster trap and finfish gillnet fisheries.  Since DAM will be used to respond to unusual and unexpected sightings of right whales, it is difficult for NMFS to predict exactly where DAM zones may be implemented in the future.  Therefore, providing an accurate estimate of the number of small entities that will be affected is problematic.  Based on the available data, a maximum of 7,539 state and federally permitted lobster vessels and 310 gillnet vessels, which includes federally permitted vessels and may include state permitted vessels, could be affected by the proposed action.  However, NMFS does not expect that number of vessels to be affected by any one DAM closure because of the limited size of a DAM zone.  For example, the retrospective analysis of the April-May 2000 DAM Area 1 estimated that 210 lobster vessels and 42 gillnet vessels would have been affected by the hypothetical closure.  This proposed rule contains no reporting, recordkeeping, or other compliance requirements.  There are no relevant Federal rules that duplicate, overlap, or conflict with the proposed rule.   -

        Five alternatives were evaluated including a status quo or “no action” alternative, the proposed action, and three other alternatives.  The No Action alternative would leave in place the existing regulations promulgated under the ALWTRP, but would not clarify NMFS’ authority to implement DAM zones and would not identify criteria and procedures to implement them.  The existing regulations already state that the Assistant Administrator (AA) may revise the existing regulations through notice in the Federal Register in order to close areas, open areas, and change boundaries of a closed area, or for a similar purpose (section 229.32(g)(2)).  It is difficult to quantify the economic impacts of NMFS discretion in using § 229.32(g)(2) to implement DAM zones since the trigger used, restricted zone and restrictions implemented are all unknown at this time in addition to the unknowns of the particular event such as the time and location of the restriction and the level of fishing effort at that time and location.  -
        The proposed action (PA) is to amend the regulations implementing the ALWTRP to clarify authority for implementing DAM zones, and to establish criteria and procedures to temporarily restrict fishing gear within defined areas on an expedited basis to protect concentrations of North Atlantic right whales.  The analysis showed 210 lobster vessels fishing in the hypothetical DAM Area 1 in April and May, 2000.  The total industry cost of removing the gear was estimated at $342K and the cost per vessel ranges between $328 and $3,011 with an average of $1,600.  The economic analysis of DAM Area 1 determined 42 gillnet vessels were fishing in DAM Area 1 between April 1 and May 31, 2000, according to the Vessel Trip Reporting data.  The total industry cost to remove sink gillnet gear would have been $7,081, with a cost per vessel of $170.   -
        The third alternative considered having different triggers within each respective state jurisdiction as discussed by the ALWTRT.  The State of Maine proposed the use of a trigger of 8 right whales in a 7.5 nm2 (13.9 km2) area on two consecutive observations that would result in a core area of 7.5 nm2 (13.9 km2).  The Commonwealth of Massachusetts proposed the use of a trigger of 5 right whales in a 15 nm2 (27.8 km2) area based on two sightings.  The State of Rhode Island proposed the use of a trigger of 8 whales.  Under Maine’s proposal there would have been no closures based on sightings data from 2000.  Under Massachusetts’ proposal, there would have been one closure based on sightings data from 2000.  The total cost of closing this one area in 2000 to the lobster fleet would have been $16.3K.  Total industry costs to the sink gillnet fleet for closing one area in 2000 would have been $13.7K.   -
        The fourth alternative would trigger a DAM zone using the observation of one right whale on a single day.  In addition, a buffer of 15 NM (27.8 km) would be drawn around each individual animal observed.  The economic analysis of 2000 sightings data indicates that 17 right whales would not be protected by the six closures under the PA plan.  Total industry costs of the lobster fleet would be $3.5M.  This includes $0.3M for the 17 right whales not protected under the PA plan, plus $3.2M for the PA plan.  Total industry costs of the sink gillnet fleet would be $2.9M.  This includes $0.23M for the 17 right whales not protected under the PA plan, plus $2.68M for the PA plan.   -
        Under the fifth alternative, the trigger and buffer would be the same as in the proposed action (i.e., the observation of 4 right whales in a 100 nm2 (185.3 km2) area and the buffer would be 15 nm [27.8 km]), however, instead of imposing a restriction requiring removal of all lobster gear, a 50-percent reduction in vertical lines would be required for lobster gear.  The restrictions for gillnet gear would be the same as in the proposed action, which requires complete removal.  Based on right whale sightings data in 2000, six areas could potentially be closed (Clapham and Pace, 2000).  Total industry cost to remove one buoy line from six potential closures in 2000 is $0.2M.  Area costs range from a high of $49.7K in DAM Area 1 to $24.3K in DAM Area 6.  Based on the home port analysis of DAM Area 1, the average cost to remove one buoy line is $237 per vessel.  The total industry cost for sink gillnet vessels is the same as in the PA plan.- -
        This proposed rule has been determined to be not significant for the purposes of Executive Order 12866. -

        On June 14, 2001, under the Endangered Species Act (ESA), NMFS issued four Biological Opinions (BiOps) as the result of ESA section 7 consultations on the three Fishery Management Plans (FMP) for the monkfish, spiny dogfish, and  multispecies fisheries, and the Federal regulations for the lobster fishery.  Pursuant to the consultation’s finding that the FMPs and lobster regulations were likely to jeopardize the continued existence of right whales, NMFS defined a Reasonable and Prudent Alternative (RPA) with multiple management components to the proposed action.  Among the RPA elements was a mechanism for the expedited closure of areas outside designated right whale critical habitat, which NMFS has termed Dynamic Area Management (DAM).  The BiOps require NMFS to approve a rule proposing criteria and procedures for implementing DAM by September 30, 2001.    -
        References
        ALWTRT.  2001.  Draft Atlantic Large Whale Take Reduction Team Meeting Summary.  Summary prepared by RESOLVE, Inc. and submitted to the National Marine Fisheries Service July 16, 2001.    -
        Bisack, K.  2001.  Economic analysis of Wilkinson Basin closure.  Northeast Fisheries Science Center, 166 Water Street, Woods Hole, MA. 02543.  -
        Bisack, K.  2001.  (Draft) Economic analysis of dynamic area management (DAM).   Northeast Fisheries Science Center, 166 Water Street, Woods Hole, MA. 02543.  -
        Clapham, P.J. and R.M. Pace, III.  2001.  Defining Triggers for Temporary Area Closures to Protect Right Whales from Entanglements:  Issues and Options.  Northeast Fisheries Science Center Reference Document 01-06.  April 2001.  -
        National Marine Fisheries Service. 2000.  Environmental Assessment of the Atlantic Large Whale Take Reduction Plan and Implementing Regulations.  NMFS.  Northeast Region.  December 2000.  -
        National Marine Fisheries Service. 2001.  Preliminary estimates of the revenue losses to the gillnet and lobster fleet in 1999 due to potential dynamic area closures to protect right whales.  NMFS. Northeast Region. March 2001.  -
        National Marine Fisheries Service.  2001.  Endangered Species Act section 7 consultation.  Biological opinion regarding Fishery Management Plans for monkfish, spiny dogfish, and multispecies and Federal regulations for American lobster.  June 14, 2001.

          Dated: September 26, 2001.
          John Oliver,
          Deputy Assistant Administrator for Operations, National Marine Fisheries Service.

          For the reasons set out in the preamble, 50 CFR part 229 is proposed to be amended as follows:

            PART 229—AUTHORIZATION FOR COMMERCIAL FISHERIES UNDER THE MARINE MAMMAL PROTECTION ACT OF 1972

          1. The authority citation for part 229 continues to read as follows:

            Authority:
            16 U.S.C. 1361 et seq.

          2. In § 229.2, a definition of “Qualified individual” and “Reliable report” are added to read as follows:

            § 229.2
            Definitions.

              Qualified individual means an individual ascertained by NMFS to be reasonably able, though training or experience, to identify a right whale.  Such individuals include, but are not limited to, NMFS staff, U.S. Coast Guard and Navy personnel trained in whale identification, scientific research survey personnel, whale watch operators and naturalists, and mariners trained in whale species identification through disentanglement training or some other training program deemed adequate by NMFS.

              Reliable report means a credible right whale sighting report based upon which a DAM zone would be triggered.

          3. In § 229.32, paragraph (g)(3) is added to read as follows:

            § 229.32
            Atlantic large whale take reduction plan regulations.

            (g)***
            (3) For the purpose of reducing the risk of fishery interactions with right whales, NMFS may establish a temporary Dynamic Area Management (DAM) zone in the following manner:
            (i) Trigger.  Upon receipt of a single reliable report from a qualified individual of three or more right whales within an area NMFS will plot each individual sighting (event) and draw a circle with a 3 nm (5.6 km) radius around it, which will be adjusted for the number of right whales sighted such that a density of at least 0.04 right whales per nm2 (1.85 km2) is maintained within the circle.  If any circle or group of contiguous circles includes 3 or more right whales, NMFS would consider this core area and its surrounding waters a candidate DAM zone.
            (ii) DAM zone. Areas for consideration for DAM zones are limited to areas north of 40° N latitude.  Having identified a group of 3 or more right whales as candidates for protection, NMFS will define the core zone by the latitude and longitude lines tangential to the circular buffer zones drawn with a 15-nm (27.8 km) radius around the event epicenter of each core area identified in paragraph (g)(3)(i) of this section.  The event epicenter is the geographic center of all sightings on the first day of an event, or sighting.
            (iii) Requirements and prohibitions within DAM zones. Notice of specific area restrictions will be published in the Federal Register and will become effective 2 days after publication.  Gear not in compliance with the imposed restrictions may not be set in the DAM zone after the effective date.  NMFS may either:

            (A) Require owners of gillnet and lobster gear set within the DAM zone to remove all such gear within 2 days after notice is published in the Federal Register, or

            (B) Allow fishing within a DAM zone with gear modifications determined by NMFS to sufficiently reduce the risk of entanglement to right whales.  Acceptable fishing practices and gear modifications would be identified in the Federal Register notice implementing the DAM zone.
            (C) The determination of whether restrictions will be imposed within a DAM zone would be based on NMFS’ review of a variety of factors, including but not limited to: the location of the DAM zone with respect to other fishery closure areas, weather conditions as they relate to the safety of human life at sea, the type and amount of gear already present in the area, and a review of recent right whale entanglement and mortality data.
            (iv) Restricted period.  Any DAM zone will remain in effect for a minimum period of 15 days.  At the conclusion of the 15-day period, the DAM zone will expire automatically unless it is extended by subsequent publication in the Federal Register.
            (v) Extensions of the restricted period.  Any 15-day period may be extended if NMFS determines that the trigger established in paragraph (g)(3)(i) of this section continues to be met.
            (vi) Reopening of restricted zone.  NMFS may remove any gear restriction or prohibition and reopen the DAM zone prior to its automatic expiration if there are no confirmed sightings of right whales for at least 1 week, or other credible evidence indicates that right whales have left the DAM zone.  NMFS will notify the public of the reopening of a DAM zone prior to the expiration of the 15 day period by issuing a notice in the Federal Register and through other appropriate media.

      [FR Doc. 01-24541 Filed 9-26-01; 4:44 pm]
      BILLING CODE  3510-22-S


        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Parts 223 and 224
        [Docket No. 120425024-1024-01]
        RIN 0648-XB089
        Endangered and Threatened Wildlife; 90-Day Finding on a Petition To Delist the Green Turtle in Hawaii and Notice of Status Review

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

          ACTION:
          Ninety-day petition finding, request for information, and initiation of status review.

          SUMMARY:

          We, NMFS, announce a 90-day finding on a petition to identify the Hawaiian population of the green turtle (Chelonia mydas) as a Distinct Population Segment (DPS) and delist the DPS under the Endangered Species Act (ESA). The green turtle was listed under the ESA on July 28, 1978. Breeding populations of the green turtle in Florida and along the Pacific Coast of Mexico are listed as endangered; all other populations are listed as threatened. We find that the petition viewed in the context of information readily available in our files presents substantial scientific and commercial information indicating that the petitioned action may be warranted.
          We are hereby initiating a status review of green turtles as currently listed to determine whether the petitioned action is warranted and to examine green turtles globally with regard to application of the DPS policy in light of significant new information since the listing of the species in 1978. To ensure that the status review is comprehensive, we are soliciting scientific and commercial information pertaining to this species and potential critical habitat from any interested party.

          DATES:
          Scientific and commercial information pertinent to the petitioned action and the global DPS review must be received by October 1, 2012.

          ADDRESSES:
          You may submit information or data, identified by “NOAA-NMFS-2012-0154,” by any one of the following methods:
          • Electronic Submissions: Submit all electronic information via the Federal eRulemaking Portal http://www.regulations.gov. To submit information via the e-Rulemaking Portal, first click the “submit a comment” icon, then enter “NOAA-NMFS-2012-0154” in the keyword search. Locate the document you wish to provide information on from the resulting list and click on the “Submit a Comment” icon to the right of that line.
          • Mail or
            hand-delivery: Office of Protected Resources, NMFS, 1315 East-West Highway, Silver Spring, MD 20910.

            Instructions: All information received is a part of the public record and may be posted to http://www.regulations.gov without change. All personally identifiable information (for example, name, address, etc.) voluntarily submitted may be publicly accessible. Do not submit confidential business information or otherwise sensitive or protected information. NMFS will accept information from anonymous sources. Attachments to electronic submissions will be accepted in Microsoft Word, Excel, Corel WordPerfect, or Adobe PDF file formats only.

          FOR FURTHER INFORMATION CONTACT:
          Heather Coll, NMFS, Office of Protected Resources, (301) 427-8455.

        SUPPLEMENTARY INFORMATION:
        Background

        On February 16, 2012, NMFS and the U.S. Fish and Wildlife Service (USFWS) (together, the Services) received a petition from the Association of Hawaiian Civic Clubs to identify the Hawaiian green turtle population as a Distinct Population Segment (DPS) and delist the DPS under the Endangered Species Act of 1973, as amended (ESA; 16 U.S.C. 1531 et seq.). Copies of the petition are available upon request (see ADDRESSES, above).
        ESA Statutory, Regulatory, and Policy Provisions and Evaluation Framework

        In accordance with section 4(b)(3)(A) of the ESA, to the maximum extent practicable and within 90 days of receipt of a petition to list a species as threatened or endangered, the Secretary of Commerce is required to make a finding on whether that petition presents substantial scientific or commercial information indicating that the petitioned action may be warranted, and to promptly publish such finding in the Federal Register (16 U.S.C. 1533(b)(3)(A)). When we find that substantial scientific or commercial information in a petition indicates the petitioned action may be warranted, as is the case here, we are required to promptly commence a review of the status of the species concerned, during which we will conduct a comprehensive review of the best available scientific and commercial information. In such cases, within 12 months of receipt of the petition we conclude the review with a finding as to whether, in fact, the petitioned action is warranted. Because the finding at the 12-month stage is based on a comprehensive review of all best available information, as compared to the narrow scope of review at the 90-day stage, which focuses on information set forth in the petition, this 90-day finding does not prejudge the outcome of the status review.
        Under the ESA, the term “species” means a species, a subspecies, or a DPS of a vertebrate species (16 U.S.C. 1532(16)). A joint NMFS-USFWS policy clarifies the Services' interpretation of the phrase “Distinct Population Segment,” or DPS (61 FR 4722; February 7, 1996). The DPS Policy requires the consideration of two elements when evaluating whether a vertebrate population segment qualifies as a DPS under the ESA: Discreteness of the population segment in relation to the remainder of the species; and, if discrete, the significance of the population segment to the species.
        A species is “endangered” if it is in danger of extinction throughout all or a significant portion of its range, and “threatened” if it is likely to become endangered within the foreseeable future throughout all or a significant portion of its range (ESA sections 3(6) and 3(20), respectively, 16 U.S.C. 1532(6) and (20)). Pursuant to the ESA and our implementing regulations, we determine whether a species is threatened or endangered based on any one or a combination of the following section 4(a)(1) factors: (1) The present or threatened destruction, modification, or curtailment of habitat or range; (2) overutilization for commercial, recreational, scientific, or educational purposes; (3) disease or predation; (4) inadequacy of existing regulatory mechanisms; and (5) any other natural or manmade factors affecting the species' existence (16 U.S.C. 1533(a)(1), 50 CFR 424.11(c)).
        Under section 4(a)(1) of the ESA and the implementing regulations at 50 CFR 424.11(d), a species shall be removed from the list if the Secretary of Commerce determines, based on the best scientific and commercial data available after conducting a review of the species' status, that the species is no longer threatened or endangered because of one or a combination of the section 4(a)(1) factors. A species may be delisted only if such data substantiate that it is neither endangered nor threatened for one or more of the following reasons:
        (1) Extinction. Unless all individuals of the listed species had been previously identified and located, and were later found to be extirpated from their previous range, a sufficient period of time must be allowed before delisting to indicate clearly that the species is extinct.
        (2) Recovery. The principal goal of the Services is to return listed species to a point at which protection under the ESA is no longer required. A species may be delisted on the basis of recovery only if the best scientific and commercial data available indicate that it is no longer endangered or threatened.
        (3) Original data for classification in error. Subsequent investigations may show that the best scientific or commercial data available when the species was listed, or the interpretation of such data, were in error (50 CFR 424.11(d)).

        The ESA requires us to designate critical habitat concurrent with final listing rule “to the maximum extent prudent and determinable” (16 U.S.C. 1533 (a)(3)(A)). The ESA defines “critical habitat” as “* * * the specific areas within the geographical area occupied by the species at the time it is listed * * * on which are found those physical and biological features (I) essential to the conservation of the species and (II) which may require special management considerations or protection; and * * * specific areas outside the geographical area occupied by the species at the time it is listed * * * upon a determination * * * that such areas are essential for the conservation of the species.” 16 U.S.C. 1532(5)(A). Critical habitat was previously designated for the green turtle in coastal waters surrounding Culebra Island, Puerto Rico (63 FR 46693; September 2, 1998).
        ESA-implementing regulations issued jointly by the Services (50 CFR 424.14(b)) define “substantial information,” in the context of reviewing a petition to list, delist, or reclassify a species, as the amount of information that would lead a reasonable person to believe that the measure proposed in the petition may be warranted. In evaluating whether substantial information is contained in a petition, the Secretary must consider whether the petition (1) clearly indicates the administrative measure recommended and gives the scientific and any common name of the species involved; (2) contains detailed narrative justification for the recommended measure, describing, based on available information, past and present numbers and distribution of the species involved and any threats faced by the species; (3) provides information regarding the status of the species over all or a significant portion of its range; and (4) is accompanied by the appropriate supporting documentation in the form of bibliographic references, reprints of pertinent publications, copies of reports or letters from authorities, and maps (50 CFR 424.14(b)(2)).
        Judicial decisions have clarified the appropriate scope and limitations of the Services' review of petitions at the 90-day finding stage, in making a determination that a petitioned action “may be” warranted. As a general matter, these decisions hold that a petition need not establish a “strong likelihood” or a “high probability” that a species is either threatened or endangered to support a positive 90-day finding.
        To make a 90-day finding on a petition to list, delist, or reclassify a species, we evaluate whether the petition presents substantial scientific or commercial information indicating the petitioned action may be warranted, including its references and the information readily available in our files. We do not conduct additional research, and we do not solicit information from parties outside the agency to help us in evaluating the petition. We will accept the petitioners' sources and characterizations of the information presented if they appear to be based on accepted scientific principles, unless we have specific information in our files that indicates the petition's information is incorrect, unreliable, obsolete, or otherwise irrelevant to the requested action. Information that is susceptible to more than one interpretation or that is contradicted by other available information will not be disregarded at the 90-day finding stage, so long as it is reliable and a reasonable person would conclude it supports the petitioners' assertions. In other words, conclusive information indicating the species may meet the ESA's requirements for listing is not required to make a positive 90-day finding.
        The petition contains information on the species with emphasis on the green turtle population in Hawaii, including its biology and ecology, population status and trends, and elements for identifying the Hawaiian population as a DPS. To support their assertion that the Hawaiian population of green turtles is discrete from other green turtle populations, they posit that the Hawaiian population is discrete due to genetic distinction, spatial disconnectedness, and morphological differences, and is derived mostly from the nesting population at French Frigate Shoals. Petitioners assert that the Hawaiian population of green turtles is significant to the taxon to which it belongs because there would be a significant gap in the species' range if the Hawaiian population were lost, as there are no other breeding populations within the area ranging from approximately 15° to 30° North latitude and from 180° to 150° West longitude in the Central North Pacific Ocean. Further, petitioners provide information on the Hawaiian population of the green turtle relative to all ESA section 4(a)(1) factors and assert that the Hawaiian green turtle population, upon being identified as a DPS, should be delisted.
        Petition Finding
        Based on the above information and criteria specified in 50 CFR 424.14(b)(2), we find that the petitioners present substantial scientific and commercial information indicating that identifying the Hawaiian population of green turtle as a DPS and delisting this DPS may be warranted. Under section 4(b)(3)(A) of the ESA, an affirmative 90-day finding requires that we promptly commence a status review of the petitioned species (16 U.S.C. 1533 (b)(3)(A)). Furthermore, the Services completed a 5-year review of the green turtle on August 31, 2007, as required under Section 4(c)(2) of the ESA, and this review revealed that, in the time subsequent to the global listing of the green turtle, a substantial amount of information had become available on population structure (through genetic studies) and distribution (through telemetry, tagging, and genetic studies). The 5-year review recommended that a review of the species be conducted in the future.
        Information Solicited
        To ensure that the status review is based on the best available scientific and commercial data, we are soliciting information on whether green turtles should be listed as DPSs, including the identification of the Hawaiian population of the green turtle as a DPS, and, if so, whether they should be classified as endangered or threatened, or delisted based on the above ESA section 4(a)(1) factors. Specifically, we are soliciting information in the following areas: (1) Historical and current population status and trends; (2) historical and current distribution; (3) migratory movements and behavior; (4) genetic population structure, including recommendations on a global DPS structure; (5) current or planned activities that may adversely impact green turtles; and (6) ongoing efforts to conserve green turtles. We request that all information and data be accompanied by supporting documentation such as (1) maps, bibliographic references, or reprints of pertinent publications; and (2) the submitter's name, address, and any association, institution, or business that the person represents.

        We are also requesting information on areas within U.S. jurisdiction that may qualify as critical habitat for any DPS of green turtles that we might consider for listing. Areas that include the physical and biological features essential to the conservation of the species should be identified, and information regarding the potential need for special management considerations for those features should be provided. Essential features include, but are not limited to (1) Space for individual growth and for normal behavior; (2) food, water, air, light, minerals, or other nutritional or physiological requirements; (3) cover or shelter; (4) sites for reproduction and development of offspring; (5) habitats that are protected from disturbance or are representative of the historical, geographical and ecological distributions of the species (50 CFR 424.12(b)).

        References Cited

        A complete list of references is available upon request from NMFS Protected Resources Headquarters Office (see ADDRESSES).
        Authority

        The authority for this action is the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq.).

          Dated: July 26, 2012.
          Alan D. Risenhoover,
          Director, Office of Sustainable Fisheries, performing the functions and duties of the  Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.

      [FR Doc. 2012-18768 Filed 7-31-12; 8:45 am]
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        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Part 648
        [Docket No. 130711609-3609-01]
        RIN 0648-BD38
        Control Date for Qualifying Landings History and to Limit Speculative Entry into the Illex Squid Fishery; Atlantic Mackerel, Squid and Butterfish Fishery Management Plan

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

          ACTION:
          Advance notice of proposed rulemaking (ANPR); request for comments.

          SUMMARY:

          At the request of the Mid-Atlantic Fishery Management Council, this notice announces a control date that may be applicable, but not limited to, qualifying landings history for continued access to the Illex squid moratorium limited access permit program. NMFS intends this notice to promote awareness of possible rulemaking, alert interested parties of potential eligibility criteria for future access, and discourage speculative entry into and/or investment in the Illex squid fishery while the Mid-Atlantic Fishery Management Council considers if and how access to the Illex squid fishery should be controlled.

          DATES:

          August 2, 2013, shall be known as the “control date” for the Illex squid fishery, and may be used as a reference date for future management measures related to the maintenance of a fishery with characteristics consistent with the Council's objectives and applicable Federal laws. Written comments must be received on or before September 3, 2013.

          ADDRESSES:
          You may submit comments on this document, identified by NOAA-NMFS-2013-0107 by any of the following methods:

            Electronic Submission: Submit all electronic public comments via the Federal e-Rulemaking Portal. Go to www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2013-0107, click the “Comment Now!” icon, complete the required fields, and enter or attach your comments.

            Mail: Submit written comments to John K. Bullard, Regional Administrator, National Marine Fisheries Service, 55 Great Republic Drive, Gloucester, MA 01930. Mark the outside of the envelope, “Comments on Illex Squid Qualification Control Date.”

            Fax: (978) 281-9135; Attn: Aja Szumylo.
          Instructions: Comments must be submitted by one of the above methods to ensure that the comments are received, documented, and considered by NMFS. We may not consider comments sent by any other method, to any other address or individual, or received after the end of the comment period. 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.) 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). We accept attachments to electronic comments only in Microsoft Word or Excel, WordPerfect, or Adobe PDF file formats.

          FOR FURTHER INFORMATION CONTACT:
          Aja Szumylo, Fishery Policy Analyst, 978-675-9195, fax 978-281-9135.

        SUPPLEMENTARY INFORMATION:

        The Atlantic Mackerel, Squid, and Butterfish (MSB) Fishery Management Plan (FMP) is managed by the Mid-Atlantic Fishery Management Council (Council). Illex squid (Illex illecebrosus) supports important commercial fisheries along the Atlantic coast of the United States, primarily from New Jersey to Massachusetts, generating ex-vessel revenues in the $7.5 to $12.5 million range annually in most years since 1989. Since April 2, 1996, the Council has managed Illex squid under a moratorium permit to prevent overcapitalization of the fleet (65 FR 14465). The Council has considered additional capacity controls since 2003. On May 20, 2003 (68 FR 27516), NMFS published, at the request of the Council, an ANPR indicating that the Council intended to consider alternatives to further control capacity in the longfin and Illex fisheries. (Longfin squid is not a subject of this notice, though a longfin squid control date ANPR was recently published on May 16, 2013; 78 FR 28794.) Accordingly, May 20, 2003, was termed a “control date,” and notice was provided that the control date may be used for establishing eligibility criteria for determining levels of future access to the Illex squid, longfin squid, and butterfish fisheries, subject to Federal authority. On January 8, 2010 (75 FR 1024), NMFS published, at the request of the Council, a subsequent ANPR reaffirming the May 20, 2003, control date for both longfin and Illex squid fisheries.
        In the case of the Illex squid fishery, the Council is currently concerned with excess and/or latent capacity. Since 2003, approximately 7 to 21 of the 76 Illex squid moratorium-permitted vessels have accounted for 95 percent of Illex squid landings. Activation of latent capacity, in conjunction with restrictions in other fisheries, may create a derby fishery during the period of Illex availability during the summer and early fall of each year. Therefore, the Council has expressed a need to examine excess capacity and/or latent capacity in the limited entry section of this fishery.

        At its June 2013 meeting, the Council requested that NMFS also publish this control date to discourage speculative activation of previously unused effort or capacity in the Illex squid fishery while alternative management regimes to control capacity or latent effort are discussed, possibly developed, and implemented. The control date communicates to fishermen that performance or fishing effort after the date of publication may not be treated the same as performance or effort that was expended before the control date. The Council may choose to use different qualification criteria that do not incorporate the new control date. The Council could also choose to develop alternative qualification criteria based on the May 20, 2003, date and/or January 8, 2010, reaffirmation date. The Council may also choose to take no further action to control entry or access to the Illex squid fishery.

        This notification establishes August 2, 2013, as the new control date for potential use in determining historical or traditional participation in the Illex squid fishery. Consideration of a control date does not commit the Council to develop any particular management regime or criteria for participation in these fisheries. The Council may choose a different control date; or may choose a management program that does not make use of such a date. Any action by the Council will be taken pursuant to the requirements for FMP development established under the Magnuson-Stevens Act.

        This notification also gives the public notice that interested participants should locate and preserve records that substantiate and verify their participation in the Illex squid fishery in Federal waters.

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

          Dated: July 30, 2013.
          Alan D. Risenhoover,
          Director, Office of Sustainable Fisheries, performing the functions and duties of the Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.

      [FR Doc. 2013-18675 Filed 8-1-13; 8:45 am]
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