        DEPARTMENT OF TRANSPORTATION
        Pipeline and Hazardous Materials Safety Administration
        49 CFR Part 172
        [Docket No. PHMSA-2016-0079 (HM-213E)]
        RIN 2137-AF25
        Hazardous Materials: PIPES Act Requirements for Identification Numbers on Cargo Tanks Containing Petroleum Based Fuel

          AGENCY:
          Pipeline and Hazardous Materials Safety Administration (PHMSA), DOT.

          ACTION:
          Advance notice of proposed rulemaking (ANPRM).

          SUMMARY:
          PHMSA is publishing this advance notice of proposed rulemaking (ANPRM) in response to the Protecting our Infrastructure of Pipelines and Enhancing Safety (PIPES) Act of 2016, which reauthorizes the pipeline safety program and requires a number of reports and mandates. The PIPES Act requires PHMSA to take regulatory actions to establish minimum safety standards for underground natural gas storage facilities; to update the minimum safety standards for permanent, small scale liquefied natural gas pipeline facilities; and to publish an ANPRM to address a petition for rulemaking proposing hazardous materials regulations related to the marking of identification numbers on cargo tanks. This ANPRM specifically addresses the PIPES Act requirement applicable to the petition for rulemaking related to the marking of identification numbers on cargo tanks. PHMSA will consider the comments, data, and information received in any future action related to the petition.

          DATES:
          Comments must be received by February 21, 2017.

          ADDRESSES:
          You may submit comments identified by the Docket Number PHMSA-2016-0079 (HM-213E) through any of the following methods:
          • Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the online instructions for submitting comments.
          • Fax: 1-202-493-2251.
          • Mail: Docket Management System, U.S. Department of Transportation, Dockets Operations, M-30, Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590.
          • Hand Delivery: U.S. Department of Transportation, Docket Operations,M-30, Ground Floor, Room W12-140 in the West Building, 1200 New Jersey Avenue SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal Holidays.

            Instructions: All submissions must include the agency name and Docket Number (PHMSA-2016-0079) or RIN (2137-AF25) for this notice at the beginning of the comment. Note that all comments received will be posted without change to the docket management system, including any personal information provided. If sent by mail, comments must be submitted in duplicate. Persons wishing to receive confirmation of receipt of their comments must include a self-addressed stamped postcard.

            Docket: For access to the dockets to read background documents or comments received, go to http://www.regulations.gov or DOT's Docket Operations Office (see
            ADDRESSES).

            Privacy Act: Anyone is able to search the electronic form of any written communications and comments received into any of our dockets by the name of the individual submitting the document (or signing the document, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the Federal Register published on April 11, 2000 [45 FR 19477] or you may visit http://www.regulations.gov.

          FOR FURTHER INFORMATION CONTACT:
          Steven Andrews, (202) 366-8553, Office of Hazardous Materials Standards, Pipeline and Hazardous Materials Safety Administration, U.S. Department of Transportation, 1200 New Jersey Avenue SE., Washington, DC 20590-0001.

        SUPPLEMENTARY INFORMATION:

        Table of Contents

          I. Executive Summary
          II. Objective of This ANPRM
          III. Petitions Being Addressed (P-1667 and P-1668)
          IV. Background Information
          A. Rulemakings
          B. Letters of Interpretation
          V. Comments and Questions
          A. General Questions
          B. Safety Questions
          C. Policy Analysis Questions
          VI. Regulatory Analysis
          A. Executive Order 12866, Executive Order 13563, and DOT Regulatory Policies and Procedures
          B. Executive Order 13132
          C. Executive Order 13175
          D. Regulatory Flexibility Act, Executive Order 13272, and DOT Policies and Procedures
          E. Paperwork Reduction Act
          F. National Environmental Policy Act
          G. Privacy Act
          H. Executive Order 13609 and International Trade Analysis
          I. Statutory/Legal Authority for This Rulemaking
          J. Regulation Identifier Number (RIN)

        I. Executive Summary
        On November 12, 2015, PHMSA received a petition for rulemaking from the Commercial Vehicle Safety Alliance (CVSA) proposing amendments to the Hazardous Materials Regulations (HMR; 49 CFR parts 171-180) applicable to the marking of cargo tanks transporting petroleum distillates. In an acknowledgment letter dated November 10, 2015, PHMSA assigned the CVSA petition to Petition Number P-1667 1
           (P-1667 or the petition; Docket No: PHMSA-2015-0219). Subsequently, on November 24, 2015, PHMSA received another petition for rulemaking from the American Trucking Association (ATA) proposing amendments to the HMR; this petition is also applicable to the marking of cargo tanks transporting petroleum distillates. In an acknowledgement letter dated November 25, 2015, PHMSA assigned the ATA petition to Petition NumberP-1668 2
           (P-1668 or the petition; Docket No: PHMSA-2015-0251).

            1 See P-1667 docket at the following URL: https://www.regulations.gov/docket?D=PHMSA-2015-0219.

            2 See P-1668 docket at the following URL: https://www.regulations.gov/docket?D=PHMSA-2015-0251.

        In this ANPRM, PHMSA outlines issues raised by these two petitions and discusses the background relevant to the marking of cargo tanks containing petroleum distillates. PHMSA further poses a series of questions and solicits public comment to determine the best practice for addressing the issues outlined in these two petitions.
        II. Objective of This ANPRM

        Federal hazardous materials transportation law (49 U.S.C. 5101 et seq.) authorizes the Secretary of Transportation to “prescribe regulations for the safe transportation, including security, of hazardous materials in intrastate, interstate, and foreign commerce.” See 49 U.S.C. 5103(b)(1). The Secretary has delegated this authority to PHMSA in 49 CFR 1.97(b). The HMR are designed to achieve three primary goals:
        (1) To help ensure that hazardous materials are packaged and handled safely and securely during transportation;
        (2) to provide effective communication to transportation workers and emergency responders of the hazards of the materials being transported; and
        (3) to minimize the consequences of an incident should one occur.
        The hazardous material regulatory system is a risk management system that is prevention-oriented and focused on identifying a safety or security hazard and reducing the probability and quantity of a hazardous material release.
        Under the HMR, hazardous materials are categorized into hazard classes and packing groups based on analysis of and experience with the risks they present during transportation. The HMR do the following:
        (1) Specify appropriate packaging and handling requirements for hazardous materials based on this classification, and require a shipper to communicate the material's hazards through the use of shipping papers, package marking and labeling, and vehicle placarding;
        (2) require shippers to provide emergency response information applicable to the specific hazard or hazards of the material being transported; and
        (3) mandate training requirements for persons who prepare hazardous materials for shipment or transport hazardous materials in commerce.
        The HMR also include operational requirements applicable to each mode of transportation.
        The Administrative Procedure Act (APA), 5 U.S.C. 551 et seq., requires Federal agencies to give interested persons the right to petition an agency to issue, amend, or repeal a rule. See 5 U.S.C. 553(e). In accordance with PHMSA's rulemaking procedure regulations in 49 CFR part 106, interested persons may ask PHMSA to add, amend, or repeal a regulation by filing a petition for rulemaking along with information and arguments that support the requested action. See 49 CFR 106.95. The issues being considered under this ANPRM are derived specifically from petitions submitted to PHMSA by CVSA and ATA regarding the marking of cargo tanks transporting distillate fuels.

        On June 22, 2016, President Barack Obama signed the Protecting our Infrastructure of Pipelines and Enhancing Safety (PIPES) Act, which in part requires PHMSA to publish an ANPRM to address P-1667 related to the marking of identification numbers on cargo tanks. See Public Law 114-183. Section 15 of the PIPES Act reads as follows:

            EC. 15. HAZARDOUS MATERIALS IDENTIFICATION NUMBERS.

            Not later than 90 days after the date of enactment of this Act, the Secretary of Transportation shall issue an advanced notice of proposed rulemaking to take public comment on the petition for rulemaking dated October 28, 2015, titled “Corrections to Title 49 CFR 172.336 Identification numbers; special provisions” (P-1667).

        As mandated by section 15 of the PIPES Act, the objective of this ANPRM is to solicit comments on P-1667. It further solicits comments on the related petition for rulemaking, P-1668.
        III. Petitions Being Addressed (P-1667 and P-1668)
        Through P-1667 and P-1668, the CVSA and ATA, respectively, asked PHMSA to revise § 172.336(c) of the HMR. In P-1667, CVSA proposed that PHMSA reinstate language that existed in § 172.336(c)(4) and (5) prior to the publication of the HM-219 final rule [78 FR 14702] on March 7, 2013. Prior to HM-219, the paragraphs in § 172.336(c)(4) and (5) read as follows:

          (4) For each of the different liquid petroleum distillate fuels, including gasoline, in a compartmented cargo tank or tank car, if the identification number is displayed for the distillate fuel having the lowest flash point. After October 1, 2000, if a compartmented cargo tank or tank car contains such fuels together with a gasoline and alcohol fuel blend containing more than ten percent ethanol, the identification number “3475” or “1987” must also be displayed as appropriate in addition to the identification number for the liquid petroleum distillate fuel having the lowest flash point.
          (5) For each of the different liquid petroleum distillate fuels, including gasoline transported in a cargo tank, if the identification number is displayed for the liquid petroleum distillate fuel having the lowest flash point.

        CVSA indicated in its petition that the current regulations, as revised by the HM-219 final rule, are inconsistent with the previous requirements. CVSA further noted that the table in § 172.336 has created confusion and lack of uniformity for industry, enforcement, and first responders in regard to the display of identification numbers on multi-compartmented cargo tanks containing different petroleum distillate fuels.
        In P-1668, ATA proposed removing the requirement to display the identification number of the petroleum distillate with the lowest flashpoint, in addition to the identification number for the fuel blend as “3475” or “1987,” on a multi-compartmented cargo tank carrying an alcohol fuel blend with more than 10 percent ethanol. ATA further noted that its comments to the HM-218D final rule [73 FR 4699] that was published on January 28, 2008, suggested a uniform marking for all gasoline and gasoline/alcohol fuel blends, as well as an update to the Emergency Response Guide (ERG) requiring alcohol-resistant foam for all releases. ATA noted that PHMSA disagreed with this statement at the time because “the new shipping description for gasoline/ethanol fuel blends would enhance emergency responders” ability to respond effectively to incidents involving these materials.
        ATA identified several variations between Guide 127 and 128 in the ERG, used in the event of an unintentional release by emergency responders. The fuel blend identification numbers UN 1987 and 3475 are attributed to Guide 127 and Guide 128 as appropriate for several liquid petroleum distillates including UN 1203, 1270, and 1993. As noted by ATA, Guides 127 and 128 differ in the use of “alcohol-resistant foam” versus “regular foam” in the event of small and large fires. PHMSA has indicated that alcohol-resistant foam is necessary for emergency response involving polar/water-miscible flammable liquids, such as ethanol and gasoline fuel blends. In its petition, ATA reiterated the National Tank Truck Carriers' (NTTC) comments to HM-218D, suggesting that rather than displaying the identification number of the petroleum distillate and the alcohol/ethanol fuel blend, PHMSA should instead require the use of alcohol-resistant foam for both fuels in emergency response situations. Furthermore, ATA cited that emergency responders currently use alcohol-resistant foam to treat both types of fuel in the event of an unintentional release, recognizing that the identification number marking for fuel blends with greater than 10 percent ethanol is not needed for emergency response purposes.
        IV. Background
        A. Rulemakings

        The rulemaking history pertaining to the marking of cargo tanks containing fuel oil and petroleum distillates, as applicable to P-1667, is complex. On June 6, 1979, the Research and Special Programs Administration (RSPA), PHMSA's predecessor agency, published a notice of proposed rulemaking (NPRM) (HM-126A) associated with the use of identification numbers on packages. See 44 FR 32972. In the NPRM, RSPA proposed to require that an identification number be displayed on orange panels affixed to portable tanks, cargo tanks, and tank cars. RSPA proposed a set of standards in § 172.328 that would require cargo tanks to be marked on each side with the identification numbers specified for the material in the Hazardous Materials Table (HMT), which is found in § 172.101. RSPA further proposed to add § 172.328(e) stating that a cargo tank marked with the identification number or name of a specific hazardous material may not be used to transport any other material unless the marking is removed or changed to identify the hazardous material the cargo tank contains.

        RSPA received numerous comments to the HM-126A NPRM expressing concern that the identification number requirements for cargo tanks proposed and codified in § 172.328(e) would limit a carrier's ability to transport fuel oils and distillate fuels in multi-compartmented cargo tanks and tank cars. As a result, in May 22, 1980, RSPA published a final rule titled, “Identification Numbers, Hazardous Substances, International Descriptions, Improved Descriptions, Forbidden Materials, and Organic Peroxides,” which amended the HMR and codified language in § 172.336(c)(3) stating that identification markings are not required for different distillate fuels in the same cargo tank or tank car, if the identification number is displayed for the distillate fuel having the lowest flash point. See 45 FR 34560.
        The May 22, 1980 final rule generated a number of appeals. On November 10, 1980 [45 FR 74640], RSPA published a response to appeals to the May 22, 1980 final rule. In the response, RSPA noted that the provisions for allowing cargo tanks and multi-compartment cargo tanks to only display the identification number of the distillate fuel with lowest flash point were intended to eliminate the need for continuous changes in identification numbers for operations where gasoline and fuel oil are transported in the same cargo tank for different trips that occur on the same day. However, in response to these appeals, RSPA revised the HMR. To address compartmented cargo tanks, RSPA moved regulatory text initially found in § 172.336 from paragraph (c)(3) to (c)(4); and to address cargo tanks and tank cars, RSPA moved regulatory text initially found in § 172.336(c)(3) to (c)(5). These two provisions allowed for the display of the identification number of the liquid distillate fuel having the lowest flash point carried in a cargo tank; however, as noted above, RSPA intended for this exception to be allowed for different trips that occurred on the same day.

        In an April 20, 1987 final rule (HM-166) [52 FR 13034], RSPA revised the HMR and added the term “Gasohol” to § 172.336(c)(4) and (5). This term accounted for new formulations of gasoline mixed with ethyl alcohol (i.e., ethanol) shipped under § 172.336 of the HMR.

        In a January 28, 2008 final rule (HM-218D) [73 FR 4699], PHMSA revised the HMR and added “UN 3475, Ethanol and gasoline mixture or Ethanol and motor spirit or Ethanol and petrol mixture, with more than 10% ethanol” to the HMT to address gasoline and ethanol mixtures such as E85.3
           PHMSA further identified that emergency response techniques between petroleum distillates and gasoline and ethanol fuel blends differ. Specifically, gasoline and ethanol fuel blends with more than 10 percent ethanol are polar/water-miscible flammable liquids and decrease the effectiveness of alcohol-resistant fire-fighting foam. Due to these differences in fire-fighting methods, PHMSA revised the HMR and adopted language in § 172.336(c)(4) and (5) to clarify that when a petroleum distillate fuel and a gasoline/ethanol fuel blend with more than 10 percent ethanol are both carried on a multi-compartment cargo tank or tank car, the UN identification number “3475” or “1987” must be displayed in addition to the identification number of the petroleum distillate fuel with the lowest flash point. PHMSA notes that both NTTC and the Petroleum Marketers and Convenience Stores of Iowa (PMCI) suggested in their comments to the HM-218D NPRM that revising the Emergency Response Guidebook (ERG) to require alcohol-resistant foam for all flammable liquids (Class 3), rather than adopting a new shipping description for gasoline and ethanol fuel blends, would have made the requirement to display the identification number for the alcohol fuel blend unnecessary.

            3 E85 is an abbreviation for an ethanol fuel blend of 85% denatured ethanol fuel and 15% gasoline or other hydrocarbon by volume.

        In a March 7, 2013 final rule (HM-219) [78 FR 14702], based on a petition for rulemaking (P-1522) from Shell Chemicals,4
           PHMSA removed all references to “gasohol” and codified a table to more clearly indicate hazard communication requirements for compartmented cargo tanks, tank cars, or cargo tanks containing these fuels. The revised text indicates that when a cargo tank contains more than one petroleum distillate fuel, it may be marked with the identification number for the liquid petroleum distillate fuel having the lowest flash point.

            4 See P-1522 docket at the following URL: https://www.regulations.gov/searchResults?rpp=10&po=0&s=PHMSA-2008-0171.

        B. Letters of Interpretation

        On October 16, 2000, RSPA issued an interpretation letter (Ref. No. 00-0208 5
          ) to the Florida Department of Environmental Protection concerning the identification number markings on cargo tanks containing diesel fuel and gasoline. In this interpretation letter, RSPA stated that if a cargo tank containing gasoline is marked with the identification number for gasoline, “1203,” it may remain so marked on a subsequent trip when the cargo tank contains diesel fuel; however, the letter did not further clarify that this exception only applies to transportation occurring on the same day. Thus, it appears that industry uses this interpretation letter as standard practice to leave the “1203” identification number marking for gasoline on cargo tanks even if the cargo tank is not used for gasoline on any particular day or on a subsequent trip.

            5 See Reference Number 00-0208 letter of interpretation at: http://docketsinfo.dot.gov/reports/rspa/2000-10/000208.pdf.

        On June 26, 2015, PHMSA issued an interpretation letter (Ref. No. 14-0178 6
          ) to the South Carolina State Police concerning the placement of identification numbers on multi-compartmented cargo tanks containing petroleum distillates. In the example provided in the interpretation letter, all of the compartments in the multi-compartmented cargo tank were loaded with only diesel fuel, but displayed “1203,” the identification number for gasoline. PHMSA's response determined that if a multi-compartmented cargo tank contains the same petroleum distillate fuel (other than gasoline) in each compartment, then it must be marked with the correct identification number for that material—not with “1203.”

            6 See Reference Number 14-0178 letter of interpretation at: http://phmsa.dot.gov/portal/site/PHMSA/menuitem.6f23687cf7b00b0f22e4c6962d9c8789/?vgnextoid=2bd1d740bd03e410VgnVCM100000d2c97898RCRD&vgnextfmt=default.

        V. Comments and Questions
        The PIPES Act specifically requires PHMSA to issue an ANPRM to solicit public comment on P-1667. In addition, PHMSA is considering the regulatory changes proposed in P-1668. We invite comment on the following key issues and request that commenters provide data sources to support their positions. If commenters suggest modification to the existing regulatory requirements, PHMSA requests that comments provided be as specific as possible.
        A. General Questions

        1. Are carriers currently marking cargo tanks with the identification number of a petroleum distillate fuel, including gasoline and gasohol, when that material is not present in that cargo tank? If so, why are carriers undertaking this practice? When and where does this practice occur? How prevalent is this practice?
        2. If the answer to question 1 above is yes, how is this being done without violating the prohibitive marking requirements in § 172.303 of the HMR?
        B. Safety Questions

        1. Would marking a cargo tank with the identification number for the liquid petroleum distillate fuel having the lowest flash point, rather than with the identification numbers representing each of the different liquid petroleum distillate fuels including gasoline and gasohol, create concerns for emergency responders?
        2. Does responding to an incident involving diesel fuel differ from responding to an incident involving gasoline—if so, how?
        C. Policy Analysis Questions

        1. How many entities and shipments would be affected by modifying the existing regulatory requirements related to the hazard communication standards for cargo tanks transporting petroleum distillate fuels? In addition, how many of the effected entities would be considered small businesses?

        2. What are the potential costs of modifying the existing regulatory requirements related to hazardous materials communication on cargo tanks pursuant to the petitioners' suggestions? If no specific quantitative data is available, what types of costs would be reasonable to anticipate (e.g., training cost, equipment replacement, etc.)?
        3. What consequences would be mitigated or prevented by modifying the hazard communication requirements for cargo tanks transporting petroleum distillate fuels? Have there been instances in the U.S. safety record when the current requirements and industry practices related to the identification number markings have resulted in emergency response complications, injury, or death?
        4. What are the potential quantifiable safety and societal benefits of modifying the existing regulatory requirements related to hazardous materials communication for cargo tanks?
        5. What are the potential environmental impacts and human health effects of modifying the existing regulatory requirements?
        VI. Regulatory Analysis
        A. Executive Order 12866, Executive Order 13563, and DOT Regulatory Policies and Procedures

        This ANPRM has not been designated a “significant regulatory action” under section 3(f) of Executive Order 12866, “Regulatory Planning and Review.” 58 FR 51735 (Oct. 4, 1993). Accordingly, this ANPRM has not been reviewed by the Office of Management and Budget (OMB) and is not considered to be a significant regulatory action under the DOT Regulatory Policies and Procedures of February 26, 1979. See 44 FR 11034.
        Executive Order 13563, “Improving Regulation and Regulatory Review,” 76 FR 3821 (Jan. 21, 2011), supplements and reaffirms the principles, structures, and definitions governing regulatory review that were established in Executive Order 12866. Together, Executive Orders 12866 and 13563 require agencies to regulate in the “most cost-effective manner,” to make a “reasoned determination that the benefits of the intended regulation justify its costs,” and to develop regulations that “impose the least burden on society.”
        Additionally, Executive Orders 12866 and 13563 require agencies to provide a meaningful opportunity for public participation. Therefore, PHMSA solicits comment on the key issues addressed in this ANPRM.
        B. Executive Order 13132

        Executive Order 13132, “Federalism,” 64 FR 43255 (Aug. 10, 1999), requires agencies to assure meaningful and timely input by State and local officials in the development of regulatory policies that may 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.” We invite State and local governments with an interest in this rulemaking to comment on any effect that revisions to the HMR relative to identification numbers displayed on cargo tanks may cause.
        C. Executive Order 13175

        Executive Order 13175, “Consultation and Coordination and Indian Tribal Governments,” 65 FR 67249 (Nov. 9, 2000), requires agencies to assure meaningful and timely input from Indian tribal government representatives in the development of rules that “significantly or uniquely affect” Indian communities and impose “substantial and direct compliance costs” on such communities. We invite Indian tribal governments to provide comments on the costs and effects that this or a future rulemaking could potentially have on them.
        D. Regulatory Flexibility Act, Executive Order 13272, and DOT Policies and Procedures

        The Regulatory Flexibility Act, 5 U.S.C. 601 et seq., requires agencies to consider whether a rulemaking would have a “significant economic impact on a substantial number of small entities.” Small entities include small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations under 50,000.
        As such, PHMSA solicits input from small entities on the issues presented in this ANPRM. If you believe that revisions to the HMR relative to identification numbers on cargo tanks would have a significant economic impact on a substantial number of small entities, please submit a comment to PHMSA. In your comment, please explain how and to what extent your business or organization could be affected, and whether there are alternative approaches to this regulation the agency should consider that would minimize any significant impact on small business while still meeting the agency's statutory objectives
        Any future proposed rule would be developed in accordance with Executive Order 13272, “Proper Consideration of Small Entities in Agency Rulemaking,” 67 FR 53461 (Aug. 16, 2002), as well as DOT's procedures and policies, so as to promote compliance with the Regulatory Flexibility Act to ensure that potential impacts on small entities of a regulatory action are properly considered.
        E. Paperwork Reduction Act

        Section 1320.8(d), title 5, Code of Federal Regulations requires that PHMSA provide interested members of the public and affected agencies an opportunity to comment on information collection and recordkeeping requests. It is possible that new or revised information collection requirements could occur as a result of any future rulemaking action. We invite comment on the need for any collection of information and paperwork burdens that may apply as result of a future rulemaking.
        F. National Environmental Policy Act

        The National Environmental Policy Act of 1969, 42 U.S.C. 4321-4375, requires Federal agencies to consider the consequences of major Federal actions and prepare a detailed statement on actions significantly affecting the quality of the human environment. The Council on Environmental Quality (CEQ) regulations require Federal agencies to conduct an environmental review considering (1) the need for the proposed action, (2) alternatives to the proposed action, (3) probable environmental impacts of the proposed action and alternatives, and (4) the agencies and persons consulted during the consideration process. See 40 CFR 1508.9(b). PHMSA welcomes any data or information related to environmental impacts that may result from this ANPRM.
        G. Privacy Act

        Anyone is able to search the electronic form of any written communications and comments received into any of our dockets by the name of the individual submitting the document (or signing the document, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the Federal Register at 65 FR 19477 (April 11, 2000), or you may visit http://www.dot.gov/privacy.html.

        H. Executive Order 13609 and International Trade Analysis
        Under Executive Order 13609, “Promoting International Regulatory Cooperation,” 77 FR 26413 (May 4, 2012), agencies must consider whether the impacts associated with significant variations between domestic and international regulatory approaches are unnecessary, or may impair the ability of American business to export and compete internationally. In meeting shared challenges involving health, safety, labor, security, environmental, and other issues, international regulatory cooperation can identify approaches that are at least as protective as those that are, or would be, adopted in the absence of such cooperation. International regulatory cooperation can also reduce, eliminate, or prevent unnecessary differences in regulatory requirements.
        Similarly, the Trade Agreements Act of 1979, Public Law 96-39, as amended by the Uruguay Round Agreements Act, Public Law 103-465, prohibits Federal agencies from establishing any standards or engaging in related activities that create unnecessary obstacles to the foreign commerce of the United States. For purposes of these requirements, Federal agencies may participate in the establishment of international standards, so long as the standards have a legitimate domestic objective, such as providing for safety, and do not operate to exclude imports that meet this objective. The statute also requires consideration of international standards and, where appropriate, that they be the basis for U.S. standards.

        PHMSA participates in the establishment of international standards in order to protect the safety of the American public, and we have assessed the effects of this ANPRM to ensure that it does not cause unnecessary obstacles to foreign trade. Accordingly, this rulemaking is consistent with Executive Order 13609 and PHMSA's obligations under the Trade Agreement Act, as amended.
        I. Statutory/Legal Authority for This Rulemaking

        Federal hazardous materials transportation law, 49 U.S.C. 5101 et seq., authorizes the Secretary of Transportation to prescribe regulations for the safe transportation, including security, of hazardous materials in intrastate, interstate, and foreign commerce. The Secretary has delegated this authorization to the Administrator for PHMSA. See 49 CFR 1.97. PHMSA is issuing this ANPRM to gather the necessary information to determine a course of action for clarifying issues pertaining to the display of identification numbers related to the transportation of fuel oils and petroleum distillates.
        J. Regulation Identifier Number (RIN)

        A regulation identifier number (RIN) is assigned to each regulatory action listed in the Unified Agenda of Federal Regulations. The Regulatory Information Service Center publishes the Unified Agenda in April and October of each year. The RIN contained in the heading of this document can be used to cross-reference this action with the Unified Agenda.

          Issued in Washington, DC, on November 15, 2016, under authority delegated in 49 CFR 1.97.
          William Schoonover,
          Acting Associate Administrator for Hazardous Materials Safety, Pipeline and Hazardous Materials Safety Administration.

      [FR Doc. 2016-27911 Filed 11-18-16; 8:45 am]
       BILLING CODE 4910-60-P


        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Part 665
        [Docket No. 200204-0045]
        RIN 0648-BJ41
        Pacific Island Fisheries; 2019-2021 Annual Catch Limits and Accountability Measures

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

          ACTION:
          Proposed rule; request for comments.

          SUMMARY:
          NMFS proposes to implement main Hawaiian Islands (MHI) annual catch limits (ACLs) and accountability measures (AMs) for deepwater shrimp, precious corals, and gray jobfish (uku) in 2019-2021, and for Kona crab in 2019. The proposed ACLs and AMs support the long-term sustainability of Pacific Island fisheries.

          DATES:
          NMFS must receive comments by March 2, 2020.

          ADDRESSES:
          You may submit comments on the proposed rule, identified by NOAA-NMFS-2019-0124, by either of the following methods:
          • Electronic Submission: Submit all electronic public comments via the Federal e-Rulemaking Portal. Go to http://www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2019-1024, click the “Comment Now!” icon, complete the required fields, and enter or attach your comments.
          • Mail: Send written comments to Michael D. Tosatto, Regional Administrator, NMFS Pacific Islands Regional Office (PIRO), 1845 Wasp Blvd., Bldg. 176, Honolulu, HI 96818.

            Instructions: NMFS 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.), 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).

          NMFS prepared environmental analyses that describe potential impacts on the human environment. These analyses are available at www.regulations.gov.

          FOR FURTHER INFORMATION CONTACT:
          Brett Schumacher, NMFS PIRO Sustainable Fisheries, 808-725-5185.

        SUPPLEMENTARY INFORMATION:
        NMFS and the Western Pacific Fishery Management Council (Council) manage fisheries in the U.S. Exclusive Economic Zone (EEZ, or Federal waters) around the U.S. Pacific Islands under archipelagic fishery ecosystem plans (FEPs) for American Samoa, Hawaii, the Pacific Remote Islands, and the Mariana Archipelago (Guam and the CNMI). A fifth FEP covers pelagic fisheries. The Council developed the FEPs, and NMFS implemented them under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), with regulations at Title 50 Code of Federal Regulations, Part 665 (50 CFR 665).
        Each FEP contains a process for the Council and NMFS to specify ACLs and AMs; that process is codified at 50 CFR 665.4. NMFS must specify an ACL and AM(s) for each stock and stock complex of management unit species (MUS) in an FEP, as recommended by the Council and considering the best available scientific, commercial, and other information about the fishery. If a fishery exceeds an ACL, the regulations require the Council to take action, which may include reducing the ACL for the subsequent fishing year by the amount of the overage, or other appropriate action.
        NMFS proposes to implement ACLs and AMs for MHI deepwater shrimp, precious corals, and uku for 2019-2021, and for Kona crab for 2019 (see Table 1). The proposed rule is consistent with recommendations made by the Council at its October 2017 and October 2018 meetings. The Council recommended that NMFS implement ACLs and AMs for 2019, 2020, and 2021 for all stocks, except for MHI Kona crab, which they recommended that NMFS implement an ACL and AM only for 2019 because a new stock assessment is available to support ACL recommendations for this stock for 2020 and beyond. The fishing year for each fishery begins on January 1 and ends on December 31, except for precious coral fisheries, which begin July 1 and end on June 30 of the next year.

          Table 1—Proposed ACLs for Stocks in This Proposed Rule

            Stock
            ACL(lb)

            Year(s)

            Deepwater shrimp
            250,773
            2019-2021

            Kona crab
            3,500
            2019

            Uku
            127,205
            2019-2021

            Auau Channel—Black coral
            5,512
            2019-2021

            Makapuu Bed—Pink and red coral
            2,205
            2019-2021

            Makapuu Bed—Bamboo coral
            551
            2019-2021

            180 Fathom Bank—Pink and red coral
            489
            2019-2021

            180 Fathom Bank—Bamboo coral
            123
            2019-2021

            Brooks Bank—Pink and red coral
            979
            2019-2021

            Brooks Bank—Bamboo coral
            245
            2019-2021

            Kaena Point Bed—Pink and red coral
            148
            2019-2021

            Kaena Point Bed—Bamboo coral
            37
            2019-2021

            Keahole Bed—Pink and red coral
            148
            2019-2021

            Keahole Bed—Bamboo coral
            37
            2019-2021

            Hawaii Exploratory Area—precious corals
            2,205
            2019-2021

        As an AM for each stock, NMFS and the Council would evaluate the catch after each fishing year to determine if the average catch of the three most recent years exceeded its ACL. If it did, the Council would recommend a reduction of the ACL of that fishery in the subsequent year equal to the amount of the overage. In the event that NMFS needs to reduce an ACL because a fishery exceeded its ACL, we would implement that AM through a separate rulemaking.
        In addition to this post-season AM, the proposed rule would implement a new in-season AM for the uku fishery where, if NMFS projects that catch will reach the ACL, NMFS would close the commercial and non-commercial uku fisheries in Federal waters of the MHI for the remainder of the fishing year. This in-season AM would be implemented only for fishing years 2019 and 2020. The Council initially recommended this AM for uku, along with an ACL of 127,205 lb and the post-season AM, at the October 2017 meeting. This recommendation covered three fishing years: 2018, 2019, and 2020. At the October 2018 meeting, the Council updated the recommendations for uku for fishing years 2019 through 2021, but only recommended the ACL of 127,205 lb and the post-season AM. Because the October 2018 Council meeting did not address the in-season AM, this management measure will not be applied for fishing year 2021.
        There is also an existing in-season AM for the precious coral fishery that would close individual coral beds if the ACL for that bed is projected to be reached. The proposed rule makes housekeeping changes to the text pertaining to this AM that are described below.
        For all stocks except uku, the proposed ACLs and AMs are identical to those most recently specified, in 2017. The Council did not recommend, and NMFS did not implement, ACLs and AMs for any of the these fisheries in 2018, while the Council and NMFS developed the amendment to its fishery ecosystem plans to reclassify certain MUS as ECS, which do not require ACLs and AMs. The proposed action is the first time that ACLs and AMs would be implemented for uku as a single-species stock.
        Overall, NMFS does not expect the proposed rule to result in a significant change in fishing operations to any fishery, or other change that would result in any fishery having significant environmental impacts. These fisheries have not caught their specified ACLs in any year since they were first implemented in 2012, and catches of uku have been less than the proposed ACL every year except one in 2017.
        In addition to codifying the ACLs, this proposed rule would make housekeeping changes to the regulations. First, the proposed rule would correct a cross-reference in 50 CFR 665.4(c) that pertains to ACL requirements. The current regulation references a subsection under National Standard 1 that was changed on October 18, 2016 (81 FR 71858). The proposed rule would update the CFR to refer to the correct subsection on exceptions to ACL requirements (§ 600.310(h)(1)), rather than the subsection on flexibility for endangered species and aquaculture operations (§ 600.310(h)(2)).
        The proposed rule would make three housekeeping changes related to management of Hawaii precious corals. The proposed rule would remove subsection (b) in § 665.269, which refers to nonselective harvest of precious coral in conditional beds because nonselective harvest of precious coral is not permitted in any precious coral permit area (see § 665.264). The proposed rule would also remove references in §§ 665.267 and 665.268 to a two-year fishing period for Makapuu Bed and Auau Channel Bed because NMFS now manages these beds on the same one-year fishing year as all other coral beds. The proposed rule would also replace the term “quota” with “ACL” in §§ 665.263, 665.268, and 665.269, to make the language governing catch limits consistent throughout the rule.
        In this proposed rule, NMFS is not proposing ACLs for MUS that are currently subject to Federal fishing moratoria or prohibitions. These MUS include all species of gold coral (83 FR 27716, June 14, 2018), the three Hawaii seamount groundfish (pelagic armorhead, alfonsin, and raftfish) (84 FR 2767, February 8, 2019), and deepwater precious corals at the Westpac Bed Refugia (75 FR 2198, January 14, 2010). Prohibitions on fishing for these MUS serve as the functional equivalent of an ACL of zero.
        Additionally, NMFS is not proposing ACLs for bottomfish, crustacean, precious coral, or coral reef ecosystem MUS identified in the Pacific Remote Islands Area (PRIA) FEP. This is because fishing is prohibited in the EEZ around the PRIA within 12 nm of emergent land, unless authorized by the U.S. Fish and Wildlife Service (USFWS) (78 FR 32996, June 3, 2013). In addition, there is no suitable habitat for these stocks beyond the 12-nm no-fishing zone, except at Kingman Reef, where fishing for these resources does not occur. Therefore, the current prohibitions on fishing serve as the functional equivalent of an ACL of zero. However, NMFS will continue to monitor authorized fishing within the Pacific Remote Islands Monument in consultation with USFWS, and may develop additional fishing requirements, including monument-specific catch limits for species that may require them.
        NMFS is also not proposing ACLs for pelagic MUS at this time, because NMFS previously determined that pelagic species are subject to international fishery agreements or have a life cycle of approximately one year and, therefore, are statutorily excepted from the ACL requirements.
        NMFS previously codified 2018-2021 ACLs and AMs for Hawaii Deep 7 bottomfish (84 FR 29394, June 24, 2019).

        NMFS will consider public comments on this proposed rule and will announce the final rule in the Federal Register. NMFS must receive any comments by the date provided in the
          DATES heading, not postmarked or otherwise transmitted by that date. Regardless of the final rule, all other management measures will continue to apply in the fisheries.
        Classification
        Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the NMFS Assistant Administrator for Fisheries has determined that this proposed rule is consistent with the Hawaii FEP, other provisions of the Magnuson-Stevens Act, and other applicable laws, subject to further consideration after public comment.
        Certification of Finding of No Significant Impact on Substantial Number of Small Entities
        The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration that the proposed rule, if adopted, would not have a significant economic impact on a substantial number of small entities. The proposed action would specify ACLs and AMs for MHI precious corals, deepwater shrimp, and uku fisheries for 2019, 2020, and 2021, and the MHI Kona crab fishery for 2019.
        Catch of species or species groups in state, and Federal would all count toward the ACLs under this action. This would include catch by anyone who is required to report catch to state or Federal agencies. As a result this action would apply to hundreds of small entities across Hawaii, although only the vessels participating in the MHI uku and precious coral fisheries are likely to be affected because these are the only fisheries with in-season AMs.

        For Regulatory Flexibility Act (RFA) purposes only, NMFS has established a small business size standard, 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. Based on available information, NMFS has determined that all affected entities are small entities under the SBA definition of a small entity, i.e., they are engaged in the business of fish harvesting, are independently owned or operated, are not dominant in their field of operation, and have gross receipts not in excess of $11 million. Therefore, there would be no disproportionate economic impacts between large and small entities. Furthermore, there would be no disproportionate economic impacts among the universe of vessels based on gear, home port, or vessel length.
        Even though this proposed action would apply to a substantial number of vessels, this action should not result in significant adverse economic impacts to individual vessels. Furthermore, the proposed action will not disproportionately affect vessels by gear types, areas fished, or home ports, nor would it substantially affect effort among participants of these fisheries. Except for the MHI uku fishery, the proposed ACLs are the same as those implemented in recent years and recent catch has not been constrained by ACLs. The precious coral fishery is subject to an existing rule that implements an in-season closure for individual coral beds if NFMS projects that the ACL for that bed will be reached before the end of the fishing year. For the uku fishery, the proposed rule would implement a new measure that would close the fishery in Federal waters if NMFS projects that the ACL will be reached. NMFS and the Council are not considering in-season closures for the Kona crab or deepwater shrimp fisheries because fishery management agencies are not able to track catch in these fisheries relative to the ACLs during the fishing year. Therefore, there is no potential for effects on fishermen from a closure of the Kona crab or deepwater shrimp coral fisheries. A post-season review of the catch data would be required to determine whether any fishery exceeded its ACL by comparing the ACL to the most recent three-year average catch for which data is available. If an ACL is exceeded, the Council and NMFS would take action to mitigate the overage by reducing the ACL for that fishery in the subsequent year. If an ACL is exceeded more than once in a four-year period, the Council and NMFS would take action to correct the operational issue that caused the ACL overages. NMFS and the Council would evaluate the environmental, social, and economic impacts of future actions, such as changes to future ACLs or AMs, after the required data are available.
        The MHI uku fishery would be subject to a single-species ACL for the first time, as it has historically been subject to an ACL as part of a group of management unit species (MUS) managed as the non-Deep 7 bottomfish. The other species within the non-Deep 7 MUS were reclassified as ecosystem component species and are no longer subject to an ACL. As this fishery would also be subject to an in-season AM for fishing years 2019 and 2020 that would close the fishery in Federal waters in the event that the catch reaches the ACL, this fishery could potentially be directly affected. Under the proposed alternative, the uku fishery may be constrained by the ACL set at 127,205 lb if catch levels are similar to those in 2017, when fishermen reported catch of 131,841 lb of uku. However that was the only year in which catch would have exceeded an ACL of 127,205 lb out of the last seven years since ACLs were first specified, so NMFS expects that in most years the fishery would not reach the proposed ACL. If the fishery did close, it would likely be near the end of the fishing year, which could result in the fishery earning slightly lower revenue compared with the No Action Alternative. Though catch in 2017 was higher than the proposed ACL in 2017, over the last ten years there has been no three-year period where uku catch reached the proposed ACL. The recent three-year averages are as follows: 105,980 lb average catch for the three years spanning 2014-2016, 117,657 lb for 2015-2017, and 108,544 lb for 2016-2018. Based on recent fishing performance, and with the in-season accountability measure, the fishery is not likely to be subject to a post-season ACL overage adjustment. Between 2012 and 2017, an average of 297 fishermen reported catch of MHI uku using deep sea handline, inshore handline, and/or trolling with bait. NMFS estimates that up to 300 uku fishermen could potentially be directly affected by this action in any given year.
        The precious coral fishery is also subject to an in-season closure under existing regulations. However, since 2013 there has been only one participant in the fishery annually that could be directly affected by this action and catches have not exceed the ACLs. Based on recent fishing performance, and with the in-season accountability measure, the fishery is not likely to be subject to a post-season ACL overage adjustment.

        For most of the fisheries subject to this proposed action, fishermen would be able to fish throughout the entire year. The ACLs, as proposed, would not change the gear type, areas fished, effort, or participation of the fisheries during the fishing years under consideration. The proposed action does not duplicate, overlap, or conflict with other Federal rules and is not expected to have significant impact on small entities (as discussed above), organizations, or government jurisdictions. The proposed action also will not place a substantial number of small entities, or any segment of small entities, at a significant competitive disadvantage to large entities.

        For the reasons above, NMFS does not expect the proposed action to have a significant economic impact on a substantial number of small entities. As a result, an initial regulatory flexibility analysis is not required and none has been prepared.
        Executive Order 12866
        This proposed rule has been determined to be not significant for purposes of Executive Order 12866.
        Executive Order 13771
        This proposed rule is not an Executive Order 13771 regulatory action because this rule is not significant under Executive Order 12866.

          List of Subjects in 50 CFR Part 665
          Annual catch limits, Accountability measures, Bottomfish, Deepwater shrimp, Precious corals, Kona crab, Uku, Fisheries, Fishing, Hawaii, Pacific Islands.

          Dated: February 4, 2020.
          Samuel D. Rauch, III,
          Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.

        For the reasons set out in the preamble, NMFS proposes to amend 50 CFR part 665 as follows:

          PART 665—FISHERIES IN THE WESTERN PACIFIC

        1. The authority citation for 50 CFR part 665 continues to read as follows:

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

        2. In § 665.4, revise paragraph (c) to read as follows:

          § 665.4
           Annual catch limits.

          (c) Exceptions. The Regional Administrator is not required to specify an annual catch limit for an ECS, or for an MUS that is statutorily excepted from the requirement pursuant to 50 CFR 600.310(h)(1).

        3. In § 665.204, revise paragraphs (h) and (i) to read as follows:

          § 665.204
           Prohibitions.

          (h) Fish for or possess any bottomfish MUS as defined in § 665.201, in the MHI management subarea after a closure of its respective fishery, in violation of § 665.211.
          (i) Sell or offer for sale any bottomfish MUS as defined in § 665.201, after a closure of its respective fishery, in violation of § 665.211.

        4. Revise § 665.211 to read as follows:

          § 665.211
           Annual Catch Limits (ACL).
          (a) In accordance with § 665.4, the ACLs for MHI bottomfish fisheries for each fishing year are as follows:

              Fishery
              2018-19 ACL (lb)
              2019-20 ACL (lb)
              2020-21 ACL (lb)

              Deep 7 bottomfish
              492,000
              492,000
              492,000

              2019 ACL(lb)

              2020 ACL(lb)

              2021 ACL(lb)

              Uku
              127,205
              127,205
              127,205

          (b) When a bottomfish ACL is projected to be reached based on analyses of available information, the Regional Administrator shall publish a notice to that effect in the Federal Register and shall use other means to notify permit holders. The notice will include an advisement that the fishery will be closed beginning at a specified date, which is not earlier than seven days after the date of filing the closure notice for public inspection at the Office of the Federal Register, until the end of the fishing year in which the ACL is reached.
          (c) On and after the date specified in § 665.211(b), no person may fish for or possess any bottomfish MUS from a closed fishery in the MHI management subarea, except as otherwise allowed in this section.
          (d) On and after the date specified in § 665.211(b), no person may sell or offer for sale any bottomfish MUS from a closed fishery, except as otherwise authorized by law.
          (e) Fishing for, and the resultant possession or sale of, any bottomfish MUS by vessels legally registered to Mau Zone, Ho'omalu Zone, or PRIA bottomfish fishing permits and conducted in compliance with all other laws and regulations, is exempted from this section.

        5. Add § 665.253 to read as follows:

          § 665.253
           Annual Catch Limits (ACL).
          In accordance with § 665.4, the ACLs for MHI crusteaceans for each fishing year are as follows:

              Fishery
              2019 ACL (lb)

              2020 ACL (lb)

              2021 ACL (lb)

              Kona crab
              3,500
              NA
              NA

              Deepwater shrimp
              250,733
              250,733
              250,733

        6. In § 665.267, revise paragraph (b)(3) to read as follows:

          § 665.263
           Prohibitions.

          (b) * * *
          (3) In a bed for which the ACL specified in § 665.269 has been attained.

        7. Revise § 665.267 to read as follows:

          § 665.267
           Seasons.
          The fishing year for precious coral begins on July 1 and ends on June 30 the following year.

        8. In § 665.268 revise paragraph (a) to read as follows:

          § 665.268
           Closures.

          (a) If the Regional Administrator determines that the ACL for any coral bed will be reached prior to the end of the fishing year, NMFS shall publish a notice to that effect in the Federal Register and shall use other means to notify permit holders. Any such notice must indicate the fishery shall be closed, the reason for the closure, the specific bed being closed, and the effective date of the closure.

        9. Revise § 665.269 to read as follows:

          § 665.269
           Annual Catch Limits (ACL).
          (a) General. The ACLs limiting the amount of precious coral that may be taken in any precious coral permit area during the fishing year are listed paragraph (c) of this section. Only live coral is counted toward the ACL. The accounting period for each fishing year for all precious coral ACLs begins July 1 and ends June 30 of the following year.
          (b) Reserves and reserve release. The ACL for exploratory area X-P-H will be held in reserve for harvest by vessels of the United States in the following manner:
          (1) At the start of the fishing year, the reserve for the Hawaii exploratory areas will equal the ACL minus the estimated domestic annual harvest for that year.
          (2) As soon as practicable after December 31 each year, the Regional Administrator will determine the amount harvested by vessels of the United States between July 1 and December 31 of the year that just ended on December 31.
          (3) NMFS will release to TALFF an amount of Hawaii precious coral for each exploratory area equal to the ACL minus two times the amount harvested by vessels of the United States in that July 1-December 31 period.
          (4) NMFS will publish in the Federal Register a notification of the Regional Administrator's determination and a summary of the information on which it is based as soon as practicable after the determination is made.
          (c) In accordance with § 665.4, the ACLs for MHI precious coral permit areas for each fishing year are as follows:

            Table 1 to Paragraph (c)

              Type ofcoral bed

              Area andcoral group

              2019 ACL (lb)

              2020 ACL (lb)

              2021 ACL (lb)

              Established bed
              Auau Channel—Black coral
              5,512
              5,512
              5,512

              Makapuu Bed—Pink and red coral
              2,205
              2,205
              2,205

              Makapuu Bed—Bamboo coral
              551
              551
              551

              Conditional Beds
              180 Fathom Bank—Pink and red coral
              489
              489
              489

              180 Fathom Bank—Bamboo coral
              123
              123
              123

              Brooks Bank—Pink and red coral
              979
              979
              979

              Brooks Bank—Bamboo coral
              245
              245
              245

              Kaena Point Bed—Pink and red coral
              148
              148
              148

              Kaena Point Bed—Bamboo coral
              37
              37
              37

              Keahole Bed—Pink and red coral
              148
              148
              148

              Keahole Bed—Bamboo coral
              37
              37
              37

              Exploratory Area
              Hawaii—precious coral
              2,205
              2,205
              2,205

            Note 1 to § 665.269:
             No fishing for coral is authorized in refugia.

            Note 2 to § 665.269:
             A moratorium on gold coral harvesting is in effect through June 30, 2023.

      [FR Doc. 2020-02536 Filed 2-7-20; 8:45 am]
       BILLING CODE 3510-22-P


        FEDERAL COMMUNICATIONS COMMISSION
        47 CFR Parts 2 and 95
        [ET Docket No. 08-59; FCC 12-54]
        Medical Area Body Network

          AGENCY:
          Federal Communications Commission.

          ACTION:
          Proposed rule.

          SUMMARY:

          This document requests comment on a number of issues related to the designation of Medical Body Area Network (“MBAN”) coordinator(s) for the 2360-2390 MHz band. Although the Commission adopted a coordination requirement in the First Report and Order that was concurrently adopted in this proceeding, it also determined that additional notice and comment was required on key aspects related to the process and criteria for designating an MBAN coordinator.

          DATES:
          Comments must be filed on or before September 10, 2012, and reply comments must be filed on or before September 28, 2012.

          FOR FURTHER INFORMATION CONTACT:

          Brian Butler, Office of Engineering and Technology, (202) 418-0577, email: Brian.Butler@fcc.gov, TTY (202) 418-2989.

          ADDRESSES:
          You may submit comments, identified by [docket number and/or rulemaking number], by any of the following methods:

            Federal Communications Commission's Web Site: http://fjallfoss.fcc.gov/ecfs2/. Follow the instructions for submitting comments.

            Mail: Brian Butler, Office of Engineering and Technology, Room 7-A125, Federal Communications Commission, 445 12th SW., Washington, DC 20554.

            People with Disabilities: Contact the FCC to request reasonable accommodations (accessible format documents, sign language interpreters, CART, etc.) by email: FCC504@fcc.gov or phone: 202-418-0530 or TTY: 202-418-0432.

          For detailed instructions for submitting comments and additional information on the rulemaking process, see the SUPPLEMENTARY INFORMATION section of this document.

        SUPPLEMENTARY INFORMATION:
        This is a summary of the Commission's Further Notice of Proposed Rule Making (FNPRM), ET Docket No. 08-59, FCC 12-54, adopted May 24, 2012, and released May 24, 2012. The full text of this document is available for inspection and copying during normal business hours in the FCC Reference Center (Room CY-A257), 445 12th Street SW., Washington, DC 20554. The complete text of this document also may be purchased from the Commission's copy contractor, Best Copy and Printing, Inc., 445 12th Street SW., Room CY-B402, Washington, DC 20554. The full text may also be downloaded at: www.fcc.gov.

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

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

          Paper Filers: Parties who choose to file by paper must file an original and one copy of each filing. If more than one docket or rulemaking number appears in the caption of this proceeding, filers must submit two additional copies for each additional docket or rulemaking number.
        Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail. All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission.

         All hand-delivered or messenger-delivered paper filings for the Commission's Secretary must be delivered to FCC Headquarters at 445 12th St. SW., Room TW-A325, Washington, DC 20554. The filing hours are 8:00 a.m. to 7:00 p.m. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes and boxes must be disposed of before entering the building.
         Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9300 East Hampton Drive, Capitol Heights, MD 20743.
         U.S. Postal Service first-class, Express, and Priority mail must be addressed to 445 12th Street SW., Washington, DC 20554.

          People with Disabilities: To request materials in accessible formats for people with disabilities (braille, large print, electronic files, audio format), send an email to fcc504@fcc.gov or call the Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (tty).
        Summary of Further Notice of Proposed Rulemaking
        1. This FNPRM seeks comment on whether the Commission should designate one or more MBAN coordinators, the term of service for an MBAN coordinator, the qualifying criteria that should guide our selection of an MBAN coordinator, and fees to register with an MBAN coordinator and to coordinate MBAN and aeronautical mobile telemetry (AMT) operations.
        2. Number of coordinators. General Electric Healthcare (GEHC), Philips Healthcare Systems (Philips), and Aerospace and Flight Test Radio Coordinating Council (AFTRCC) (hereinafter “the Joint Parties”) collectively have asked that only one MBAN coordinator be designated, arguing that MBAN coordination should be viewed as an extension of WMTS coordination for health care facilities. The American Society for Healthcare Engineering (ASHE), which is now the WMTS coordinator, has expressed its interest in being the MBAN coordinator as well. Philips and GEHC previously pointed out that the Commission has designated only one WMTS coordinator and one AMT coordinator, and a single MBAN coordinator would likewise simplify the coordination process, reduce costs and, expedite deployment of MBAN equipment. They assert that a process relying on multiple MBAN coordinators could delay coordination and compromise accuracy, as well as increase costs for users by, for example, requiring each coordinator to maintain its own proprietary database.

        3. The Commission has proposed to select only one MBAN coordinator. Because the MBAN and AMT coordinators will have to mutually agree to coordination procedures, the Commission believes that it will be easier for a single MBAN coordinator to work with the AMT coordinator to develop these coordination procedures. Use of a single MBAN coordinator will also provide both the health care community and the AMT coordinator a single point of contact for obtaining all the information needed regarding potential frequency conflicts. As with WMTS, a single MBAN coordinator will simplify the registration process for the health care community and provide a single database of all registered MBAN equipment in the 2360-2390 MHz band. The Commission believes that using a model that is similar to WMTS will make it easier for the health care community to understand and comply with the MBAN rules that it is adopting. If we were to designate multiple coordinators, each would be expected to abide by jointly-crafted coordination procedures that specify the regular and timely sharing of information, such that each coordinator is capable of maintaining a complete registration database and providing consistent coordination results and services without undue delay. This would likely add costs that would have to be shared among the relatively small and specialized health care user community, and the Commission does not believe that the costs incurred by having multiple coordinators would spur a competitive environment that would provide sufficient benefits to offset these costs. The Commission seeks comment on this proposal.
        4. Term of Service. The Commission proposes to require that any designated MBAN coordinator agrees to serve a ten-year term, subject to renewal by the Commission. Further, in the event that the MBAN coordinator is unable to or chooses not to complete its term, it will have to transfer its MBAN database to another entity designated by the Commission. The Commission believes that a ten-year term is appropriate for several reasons. Because MBAN equipment might not be deployed for several years, a shorter term (e.g., five years) may not provide enough time for the user communities and the coordinators to develop a working relationship to facilitate MBAN deployment while protecting AMT operations. A ten-year term also will provide a substantial time period for the Commission to evaluate the coordinator's performance. The Commission seeks comment on this proposal.
        5. Qualifying Criteria. The Commission proposes to establish minimum qualifying criteria for selecting an MBAN coordinator. These minimum qualifying criteria are intended to ensure that a designated coordinator can successfully accomplish the functions required by our rules. The Commission proposes to require that parties interested in being designated as an MBAN coordinator demonstrate that they meet the following criteria:
        • Ability to register and maintain a database of MBAN transmitter locations and operational parameters;
        • Knowledge of or experience with medical wireless systems in health care facilities (e.g., WMTS);
        • Knowledge of or experience with AMT operations;
        • Ability to calculate and measure interference potential between MBAN and AMT operations and to enter into mutually satisfactory coordination agreements with the AMT coordinator based on the requirements in § 95.1223(c);
        • Ability to develop procedures to ensure that registered health care facilities operate an MBAN consistent with the requirements in § 95.1223.

        6. Philips and GEHC suggested additional requirements for an MBAN coordinator which emphasize, for example, experience working with hospitals and medical device vendors; institutional knowledge of the health care industry; and having an MBAN user community as its core constituency. The Commission believes that these types of requirements may have been useful had it adopted certain elements of the joint parties' coordination plan, e.g., the transition plan requirement, but they may not be necessary under the coordination rules the Commission adopted. The Commission seeks comment on the minimum qualifying criteria that should be established for selecting an MBAN coordinator, and whether those it proposed are sufficient. The Commission also seeks comment on whether it should require that service should be provided on a non-discriminatory basis.
        7. ASHE, the WMTS coordinator, has expressed an interest in being designated the MBAN coordinator. ASHE contracts with Comsearch as its technical partner in providing WMTS coordination services. When the Commission designated ASHE as the WMTS coordinator, it found that ASHE's lack of frequency coordination experience and need to contract with a third party to provide technical and administrative support, was not a significant factor arguing against ASHE's selection because the WMTS coordinator would not have to resolve frequency conflicts. Since AMT is a primary service entitled to interference protection from MBAN operations, the MBAN coordinator will have broader responsibilities than the WMTS coordinator and will have to resolve frequency conflicts with the AMT coordinator. Thus, the Commission believes it is important for us to be confident that any designated MBAN coordinator can perform the required functions under the rules and will be directly responsible to the Commission if it has to intervene in resolving any coordination disputes that may arise. The Commission seeks comment on whether third party contractual arrangements should be permitted to qualify an entity for designation as an MBAN coordinator and, if so, what amount of disclosure of a contractual arrangement should the Commission require as part of the selection process.
        8. Fees for Service. The Commission does not propose to prescribe fees for MBAN registration and coordination services and instead proposes to let an MBAN coordinator establish service fees. Nonetheless, the Commission recognizes that, if we choose to designate only one MBAN coordinator, fees for service will not be disciplined by competition from several coordinators. Philips and GEHC have asked that, we require that an entity be “willing to operate the coordination process and MBANS database at cost, ideally on a non-profit basis.” The Commission noted that it did not prescribe any service fees for WMTS coordination, allowing the designated WMTS coordinator “to set the fee structure necessary to recoup costs.” The Commission also seeks comment on whether it should adopt any fee requirements for MBAN registration and coordination, including, for example, whether service fees should only recoup costs and how such a requirement should be evaluated, and whether service fees should be reasonable and non-discriminatory.
        9. AFTRCC has established coordination service fees for FCC licensees in the aeronautical services. The Joint Parties have asked that we codify, as part of the MBAN coordination rules, a requirement that health care facilities “bear responsibility for reasonable costs incurred by the aeronautical telemetry coordinator in effecting the coordination.” The Commission seeks comment on this request. It also seeks comment on how “reasonable costs” should be evaluated, and, if it were to codify this requirement, what oversight the Commission should exercise over AMT-MBAN coordination fees. Should the Commission require that service should be provided on a non-discriminatory basis and that fees should be reasonable and non-discriminatory? The Commission also seeks comment on the procedures that would apply to health care facilities that pay these costs. For example, would a health care facility apply to AFTRCC for coordination, or would it pay these fees to the MBAN coordinator who, in turn, would pass along the fees to AFTRCC? As discussed, AFTRCC coordinates Federal AMT operations, in conjunction with the Federal Government Area Frequency Coordinators for day-to-day scheduling of missions. Should service fees for MBAN coordination exclude costs that AFTRCC may incur for coordinating Federal AMT operations?
        MBAN Coordinator Selection

        10. Under the Commission's rules, the Wireless Telecommunications Bureau (WTB) has delegated authority to certify frequency coordinators for the services that it administers, including the Medical Device Radiocommunications (MedRadio) Service under part 95 of the Commission's rules. The Commission proposes that, under its delegated authority, WTB would select the MBAN coordinator using the same procedures that were implemented for selecting the WMTS coordinator. The WTB would issue a public notice to announce procedures for interested parties to submit applications for consideration as an MBAN coordinator. It would issue an Order to designate the MBAN coordinator, and execute a Memorandum of Understanding with the selected coordinator that will set forth the coordinator's authority and responsibilities. The MBAN coordinator would assume its duties upon the execution of the Memorandum of Understanding. The Commission seeks comment on whether this process, which worked well for selecting the WMTS coordinator, would permit the Commission to complete the MBAN coordinator selection process in a timely and efficient manner.
        Initial Regulatory Flexibility Certification
        11. The Regulatory Flexibility Act of 1980, as amended (RFA),1
           requires that an initial regulatory flexibility analysis be prepared for notice and comment rulemaking proceedings, unless the agency certifies that “the rule will not, if promulgated, have a significant economic impact on a substantial number of small entities.” 2
           The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” 3
           In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act.4
           A “small business concern” is one which: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the Small Business Administration (SBA).5

            1 The RFA, see 5 U.S.C. 601-612, has been amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), Public Law No. 104-121, Title II, 110 Stat. 857 (1996).

            2 5 U.S.C. 605(b).

            3 5 U.S.C. 601(6).

            4 5 U.S.C. 601(3) (incorporating by reference the definition of “small business concern” in the Small Business Act, 15 U.S.C. 632). Pursuant to 5 U.S.C. 601(3), the statutory definition of a small business applies “unless an agency, after consultation with the Office of Advocacy of the Small Business Administration and after opportunity for public comment, establishes one or more definitions of such term which are appropriate to the activities of the agency and publishes such definition(s) in the Federal Register.”

            5 15 U.S.C. 632.

        12. The FNPRM addresses a number of issues related to designating an MBAN coordinator for the 2360-2390 MHz band. The joint parties have asked that only one MBAN coordinator be designated. ASHE, who is now the WMTS coordinator, has expressed its interest in being the MBAN coordinator as well. Although the NPRM sought comment on coordination procedures and generated a record upon which we are able to adopt coordination requirements in the Report and Order, the NPRM did not address other issues that would guide the selection and designation of an MBAN coordinator. The Commission addressed those issues in this FNPRM. The Commission seeks comment on whether it should designate one or more MBAN coordinators, the terms of service for an MBAN coordinator, the qualifying criteria that should guide our selection of an MBAN coordinator, and fees to register with an MBAN coordinator and to coordinate MBAN and AMT operations.
        13. Therefore, the Commission certifies that the proposals in this FNPRM, if adopted will not have a significant economic impact on a substantial number of small entities. If commenters believe that the proposals discussed in the FNPRM require additional RFA analysis, they should include a discussion of these issues in their comments and additionally label them as RFA comments. The Commission will send a copy of the FNPRM, including a copy of this initial certification to the Chief Counsel for Advocacy of the SBA.6

            6 See 5 U.S.C. 605(b).

        14. Pursuant to sections 1.4(b)(1) and 1.103(a) of the Commission's rules, 47 CFR 1.4(b)(1) and 1.103(a), the Further Notice of Proposed Rulemaking is adopted and comments will be sought on these proposals.

          Federal Communications Commission.
          Marlene H. Dortch,
          Secretary.

      [FR Doc. 2012-18098 Filed 7-24-12; 8:45 am]
      BILLING CODE 6712-01-P


        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Part 648
        [I.D. 041001A]
        New England Fishery Management Council; Public Meeting

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

          ACTION:
          Public meeting.

          SUMMARY:
          The New England Fishery Management Council (Council) will hold a 2-day Council meeting, on May 2 and May 3, 2001, to consider actions affecting New England fisheries in the exclusive economic zone (EEZ).

          DATES:
          The meeting will be held on Wednesday and Thursday, May 2 and 3, at 9 a.m. and 8:30 a.m., respectively.

          ADDRESSES:
          The meeting will be held at the Holiday Inn, 1 Newbury Street, Route 1 North, Peabody, MA 01960; telephone (978) 535-4600.  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:
        Wednesday, May 2, 2001
        After introductions, the Council will receive 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, NOAA General Counsel and representatives of the U.S. Coast Guard, NMFS Enforcement and the Atlantic States Marine Fisheries Commission. An expanded enforcement briefing will be provided by the U.S. Coast Guard.  NMFS also will report to the Council about funds dispersed through the Northeast Marine Fisheries Initiative.  These reports will be followed by a NMFS presentation on the status of the North Atlantic right whale.  During the afternoon session, the Council staff will present issues and options under consideration by the Herring Committee for a limited entry/controlled access system for Area 1A (inshore Gulf of Maine) as described in the Atlantic Herring Fishery Management Plan (FMP).  The Red Crab Committee will request approval of management measures to be analyzed in the Draft Environmental Impact Statement for the Red Crab FMP.
        Thursday, May 3, 2001
        The Council’s Skate Committee will request approval of goals and objectives for the Northeast Skate Complex FMP.  The Council will spend the rest of the day addressing groundfish issues.  The Groundfish Committee will ask the Council for approval of draft management measures to be analyzed in the Draft Supplemental Environmental Impact Statement for Amendment 13 to the Northeast Multispecies FMP.  Measures under consideration include: (1) habitat-related alternatives (methods to designate Essential Fish Habitat, Habitat Areas of Particular Concern designations, and measures to minimize adverse impacts associated with fishing activities); (2) refinement of status quo measures using existing management tools; (3) an area-based regime using area specific measures that may include measures to address unused days-at-sea; and (4) the allocation of resources to different industry sectors that may include measures to address unused days-at-sea.  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 notice and any issues arising after publication of this notification that require emergency action under section 305(c) of the Magnuson-Stevens Act, provided that the public has been notified of the Council's intent to take final action to address the emergency.

        The Council will consider public comments at a minimum of two Council meetings before making recommendations to the NMFS 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: April 12, 2001.
          Bruce C. Morehead,
          Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service.

      [FR Doc. 01-9650 Filed 4-18-01; 8:45 am]
      BILLING CODE  3510-22-S