        DEPARTMENT OF TRANSPORTATION
        National Highway Traffic Safety Administration
        49 CFR Part 572
        [Docket No. NHTSA-2009-0194]
        RIN 2127-AK64
        Anthropomorphic Test Devices; Hybrid III Test Dummy, ES-2re Side Impact Crash Test Dummy

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

          ACTION:
          Notice of proposed rulemaking (NPRM).

          SUMMARY:
          This document proposes corrections or minor changes to some of the drawings incorporated by reference by a final rule, published on June 16, 2008, that responded to petitions for reconsideration of a December 2006 final rule that had adopted specifications and qualification requirements for a new crash test dummy called the “ES-2re” test dummy. The ES-2re is a 50th percentile adult male side impact crash test dummy that will be used in an upgraded Federal motor vehicle safety standard on side impact protection and in the agency's New Car Assessment Program. This NPRM responds to requests from test dummy manufacturers First Technology Safety Systems (FTSS) and Denton ATD (Denton) to correct or make minor adjustments to the drawings of the ES-2re. This NPRM would also correct dimensional errors in Figure 22 of 49 CFR part 572, subpart E, which depicts the pendulum used in the neck qualification tests of several of the crash test dummies, including the Hybrid III and ES-2re test dummies.

          DATES:
          You should submit your comments early enough to ensure that they are received not later than April 6, 2010.

          ADDRESSES:
          You may submit comments (identified by the Docket ID Number above) 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: U.S. Department of Transportation, 1200 New Jersey Avenue, SE., West Building Ground Floor, Room W12-140, Washington, DC 20590-0001.
          • Hand Delivery or Courier: West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., between 9 a.m. and 5 p.m. ET, Monday through Friday, except Federal holidays.
          • Fax: 202-493-2251.

            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 heading 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 published on April 11, 2000 (65 FR 19477-78).

            Docket: For access to the docket to read background documents or comments received, go to http://www.regulations.gov or the street address listed above. Follow the online instructions for accessing the dockets.

          FOR FURTHER INFORMATION CONTACT:
          For non-legal issues, you may call Mr. Peter Martin, NHTSA Office of Crashworthiness Standards (telephone 202-366-5668) (fax 202-493-2990). For legal issues, you may call Ms. Deirdre Fujita, NHTSA Office of Chief Counsel (telephone 202-366-2992) (fax 202-366-3820). You may send mail to these officials at the National Highway Traffic Safety Administration, 1200 New Jersey Avenue, SE., Washington, DC 20590.

        SUPPLEMENTARY INFORMATION:
        I. Background
        NHTSA published a final rule on June 16, 2008 (73 FR 33903, Docket No. NHTSA-08-0111) that responded to various petitions for reconsideration of its previous rule 1
           incorporating a new mid-size adult male crash test dummy, called the “ES-2re” test dummy, into 49 CFR part 572. The ES-2re will be used in an upgraded Federal Motor Vehicle Safety Standard No. 214, “Side impact protection,” and in the agency's New Car Assessment Program beginning with vehicle model year 2010. The June 16, 2008 final rule incorporated by reference a drawing package, parts list, and user's manual, all dated February 2008.

            1 That final rule adopting the ES-2re into 49 CFR part 572 was published December 14, 2006 (71 FR 75303, Docket No. NHTSA-04-25441).

        After publication of the June 16, 2008 final rule, NHTSA received requests from dummy manufacturers FTSS and Denton to correct errors in and make minor changes to the ES-2re drawing package. Many of these requested changes were wholly corrective, while others, although minor, were more substantive and notice of such changes appeared beneficial. Rather than respond to the requested changes piecemeal, the agency has decided to address all the requested changes with this NPRM. Accordingly, we are issuing this NPRM to correct the ES-2re drawing package and to make corresponding changes to the parts list. In addition, we are also proposing to clarify the inclusion of load sensors and to correct dimensional errors we found in Figure 22 of 49 CFR part 572, which is a figure illustrating the pendulum used in the neck qualification test for the ES-2re and other adult crash test dummies (e.g., the Hybrid III 50th percentile adult male).
        II. FTSS Requested Changes
        FTSS requested the following 18 changes to the ES-2re drawing package. The petitioner's requests are set forth verbatim in the list below, and following each request is NHTSA's tentative decision on the request. Comments are requested on the agency's responses.
        1. “Drawing 175-1011, Top Plate UNLC Blank. Fix typographical errors for dimensions, M5.0, M6.0, M6, and M2.5. Eliminate the  symbol.” NHTSA agrees and would remove the  symbol from the dimensions listed by FTSS.
        2. “Drawing 175-3502, Pivot Stop Plate, Left. Fix typographical error on Note #4. Replace RH with LH since this is a left hand part.” NHTSA agrees with this correction.
        3. “Drawing 175-6006, Pubic Symphysis Structural Replacement. There is a Part Mark located at the center of the part. This Part Mark is not defined. FTSS recommends that the Part Mark be clarified or removed altogether from the drawing.” NHTSA agrees that the part mark is unnecessary and should be removed from the drawing.
        4. FTSS states:

          Drawing 175-6012, Hip Pivot Pin. FTSS believes that dimension “16.994 +0.000/− 0.011” is a typographical error and should be dimensioned as “16.990 +0.000/−0.011”. The Hip Pivot Pin mates to part number 5000110 (Ball Bearing)—which has an ID dimension of 17.000 +0.000/−0.008 (vendor specification). The bearing at a nominal dimension of 16.992 would not allow a Hip Pivot Pin at its maximum diameter of 16.994 to fit within the bearing.

        NHTSA agrees that with the currently specified dimensions, the pin may not fit within the bearing as described by FTSS. Therefore, we agree with FTSS's request.
        5. FTSS states:

          Drawing 175-6010, Iliac Wing Assembly, Left. Fix typographical error for drawing dimension “17.0556”. This dimension should be “17” since it is not reasonable to control and measure this molded part to four decimal places and “17” also matches the same dimension as the Iliac Wing Assembly, Right (NHTSA Drawing 175-6002). FTSS also recommends that the drawing dimension “20.03” be replaced with “20.03 ± 0.10” since this dimension cannot be controlled to a tolerance of ± 0.05. We also recommend the addition of dimension “R0.5” to better define this location for easier machining of this particular section of the part and to prevent breakage due to concentrated stresses.

        NHTSA agrees that dimensions on this drawing should be consistent with those on Drawing 175-6002, Iliac Wing Assembly, Right. Therefore, we have tentatively determined that the dimension 17.0556 should be changed to (17), a reference dimension. Also, the suggested R0.5 dimension appears to be acceptable and would eliminate any sharp corners in this area. However, we do not agree that the ±0.05 tolerance on the “20.03” dimension is restrictive. The tolerance is necessary in order to avoid a potential interference problem with the mating part, 175-6001, Bushing. In the course of investigating this comment, we determined that the current “20.03 ± 0.05” dimension could also lead to interference, so we have changed it to “20.05 ± 0.05.” Apart from FTSS's comments, we noticed that the material reference block was mistakenly left blank. We therefore propose to specify the material to be “PU Resin” (polyurethane) which matches the material callout on for the right iliac wing, drawing 175-6002.
        6. FTSS states:

          Drawing 175-6063, Femur Bearing Plate, Left. Fix typographical errors for drawing dimensions “17.5000 ± 0.0001” and “48.3000 ± 0.0001”. The tolerances are too tight to reasonably achieve at four decimal places and would add unnecessary expense when making the part. FTSS recommends that these dimensions should be specified as “17.5 ± 0.5” and “48.3”. These recommended dimensions would also match the existing dimensions on the Femur Bearing Plate, Right (NHTSA Drawing 175-6068).

        NHTSA agrees with FTSS and proposes to change the “48.3000 ± 0.0001” dimension to “48.3.” The 17.5000 dimension for hole depth in zone C-2 has been changed to (17.5) to indicate a reference since the depth is already called out in the hole size dimension in zone D-2. Also, NHTSA has fixed a typo in zone D-1 by eliminating an extra “R” in the R23.5 dimension.
        7. “Drawing 175-6068, Femur Bearing Plate, Right. Fix typographical errors by removing the parenthesis from around dimensions `(48.3)' and `(17.5 ± 0.5)'. This will maintain consistency between NHTSA Drawings 175-6068 and 175-6063.”
        NHTSA agrees with FTSS that the 48.3 dimension should not be a reference dimension, and the parentheses indicating this is a reference dimension should be removed. However, NHTSA does not agree that the parentheses should be removed from `(17.5 ± 0.5)'. This should remain a reference dimension since the depth is already called out in the hole size dimension in zone D-2.
        8. FTSS states:

          Drawing 175-6002, Iliac Wing Assembly, Right. FTSS recommends that the drawing dimension “20.03” be replaced with “20.03 ± 0.10” since this dimension cannot be controlled to ± 0.05. We also recommend the addition of dimension “R0.5” to better define this location for easier machining of this particular section of the part and to prevent breakage due to concentrated stresses.

        As discussed in item 5 above, NHTSA agrees that defining a radius of 0.5 mm as suggested would be beneficial, but we do not agree that the tolerance of the 20.03 dimension should be increased to ±0.10. Furthermore, we have changed the dimension to “20.05 ± 0.05” for the reasons cited in response to item 5.
        9. FTSS states:

          Drawing 175-2003, Plate, Neck Head & Torso Interface. FTSS recommends that NHTSA part number 5000049 Helicoil, M6 x 1 x 6, be replaced with part number 5000729 Helicoil M6 x 1 x 4.5 because the 5000049 Helicoil is too long and may not sit below the machined surface due to stack up tolerance of parts. FTSS also suggests the addition of dimension “4X R3.2 to the Surface” on Detail Z in order to clarify the dimension.

        NHTSA concurs that, with regard to the Helicoil, Section C-C of the drawing shows that the thickness of the part in that section is 5 mm and thus the M6 x 1 x 6 helicoil (which is 6 mm in length) would be too long. We agree this part should be changed to “Helicoil, M6 x 1 x 4.5.” In accordance with this change, part 5000729, Helicoil, M6 x 1 x 4.5, should replace part 5000049, Helicoil M6 x 1 x 6 on the parts/drawings list. With regard to the “4 x R3.2 to the Surface” note, we agree that this note is acceptable, as it defines a clearance space for the fastener.
        10. FTSS states:

          Drawing 175-3000, Shoulder Assembly. FTSS recommends that NHTSA part number 5000014 SHCS, M6 x 1 x 35, be replaced with part number 5000008 SHCS, M6 x 1 x 30 because the 5000014 SHCS is too long to properly secure the assembled parts. The M6 x 1 x 35 SHCS is supposed to secure the Shoulder Top Plate (175-3008) to the Shoulder Spacer Block (175-3002). However, the Shoulder Top Plate has a material thickness of 8 mm and the Shoulder Spacer Block has a material thickness of 25.5 mm. Together, the overall thickness of the combined parts is 33.5 mm—which is 1.5 mm shallower than the length of the 35 mm long SHCS. This will create a condition where the 35 mm SHCS will not clamp the parts properly. A M6 x 1 x 30 SHCS will provide a 3.5 mm clearance to the bottom of the threaded holes on the Shoulder Spacer Block and is therefore an appropriate fastener for this application.

        NHTSA is denying this request. In determining that the 35 mm bolt specified in Item 17 is too long, FTSS apparently failed to recognize that the Neck Bracket (175-2501) also sits on top of the Shoulder Top Plate and the bolt in question passes through the flange of the Neck Bracket, which is 12 mm thick. Thus, the total stack height is 45.5 mm. This includes the Neck Bracket (12 mm), the Shoulder Top Plate (8 mm), and the Shoulder Spacer Block (25.5 mm). Thus, the 35 mm bolt is not too long, as FTSS suggests. We note that a 30 mm bolt, which FTSS recommends, would work for this application. However, the 35 mm bolt is a better choice because it provides more thread engagement with the Shoulder Spacer Block.
        11. “Drawing 175-3011, CAM Buffer Pad. FTSS has noted that the current dimensions for this part have tolerances that are too tight to accurately control a molded part. We recommend that the NHTSA drawing dimensions: “5.0”, “90.0”, “5.0”, and “21.2 ± 0.2” be replaced with these dimensions: “5”, “90”, “5”, “21.2 ± 0.3”.”
        NHTSA agrees to the changes. Although this part is essentially a protection device for the shoulder cam clavicle, it does not need to be manufactured to exact tolerances. There are no critical fit issues with any of the dimensions listed in the request.
        12. “Drawing 175-7058, Friction Plate Retaining Stud. FTSS believes that the Datum A tolerance of “.0003” for the perpendicular surfaces is unnecessarily tight at four decimal places. FTSS stated, “We recommend a tolerance of `.003' because the NHTSA tolerance is too tight to be reasonably measured and therefore accurately controlled. Furthermore, at tolerance of `.0003' would add unnecessary cost to the part.”
        The agency agrees that the tolerance is unnecessarily restrictive and can be changed to 0.003 in for the reasons listed by FTSS.
        13. “Drawing 175-7085-1, Knee Flesh, Left. There is a note on the drawing that states: 1/4″ OVER WIDTH “A” FOR 180°. But, “A” is not defined on the drawing. However, “A” is defined on the corresponding drawing 175-7085-2, Knee Flesh, Right. FTSS recommends that drawing 175-7085-1 be corrected to add a definition for “A” to match drawing 175-7085-2—which specifies that “A = 13/4″.”
        NHTSA agrees that the Knee Flesh Left and Right drawings should be consistent and therefore “A” be defined on Drawing 175-7085-1 as it is on 175-7085-2.
        14. “Drawing 175-7090-1, Thigh Molded, Left. Fix typographical errors for drawing dimensions “(2x 24)” and “(2x 14)”. These dimensions should be listed as “(2x 24)” and “(2x14)”. Removal of extra or redundant  symbol is required. This would also make this part consistent with the Thigh Molded, Right drawing (NHTSA Drawing 175-7090-2).”
        NHTSA agrees that the (2x 24) dimension should be changed to (2x 24) and that (2x 14) should be changed to (2x14).
        15. “Drawing 175-9013, Bearing. The drawing has a reference to Note #2 in the revision record (REV B), but the note is missing from the “NOTES” field. FTSS recommends that the note be added to the note field, or the note reference be eliminated from the revision record.”
        NHTSA believes that revision record B is incorrect, and should be corrected to read “ADDED REF. TO MATERIAL SPECIFICATION”.
        16. “Drawing 175-9014, Pin Machined. Correct typographical error for missing revision indicator for REV B on the Material Reference. The revision record states “ADDED REF. TO MATERIAL SPECIFICATION”; however no revision reference bubble was added.”
        NHTSA agrees that a reference indicator for revision “B” should be added next to the material specification.
        17. FTSS states:

          Drawing 175-9027, Lower Mounting Base. FTSS recommends that the following NHTSA dimensions “92.5 +0/− 0.2”, “66.5 +0/−0.2”, and “4 x 6 x 45°” be replaced with “91.4 +0/−0.2”, “66.0 +0/−0.2”, and “4 x 9.7 x 45°” respectively. We recommend these changes due to the wider tolerances associated with typical product dimensions specified for the 3″ x 4″ tubular steel beam that the Lower Mounting Base fits into. These tolerances are typically ± 0.030 for the tubular beam so our recommended dimensional changes for the Lower Mounting Base is necessary to guarantee that the Lower Mounting Base will fit into the wide variety of pendulums beams in the marketplace.

        Our decision at this point is not to agree with the requested dimensional changes. The parts presently owned by NHTSA, which were purchased from FTSS, do not meet the requested dimensions. They do, however, fall within the tolerances of the dimensions currently specified on the drawing. We have tentatively decided not to make the suggested change to this drawing.
        18. FTSS states:

          Drawing SA572-S71-1, Lower Neck Load Cell Assembly. FTSS recommends that specification of the part weight be correct[ed] to include the weight of the two connector/cable assemblies. The weight currently specified for this part in the NHTSA drawing is “0.8 lb./0.36 kg MAX.” However, this weight does not include the weight of the electrical connector/cable assemblies. Since the cables are hard wired to the load cell, they need to be included in the total weight. Therefore, we request that the assembly weight be listed as “0.93 lb./0.42 kg MAX” to include the two cable assemblies.

        We have some concerns about this recommendation. We concur that the currently specified weight, 0.8 lb/0.36 kg, is the nominal weight of the lower neck load cell only. It does not include the mass of the cable assemblies or the bracket. However, the critical mass is that of the entire assembly—not the load cell alone—as it should match the corresponding mass of the structural replacement (drawing 175-2501). Drawing SA572-S71-1 is aimed to allow some amount of design flexibility to accommodate load cells from different manufacturers. As long as the entire bracket assembly duplicates the geometry of the structural replacement, slight variations among load cell models are acceptable. With this consideration in mind, we propose making the specification for load cell weight a reference. This will allow load cell manufacturers to know the target weight for the load cell, but will not require that the weight be measured and verified by end users. We also note that the drawing would indicate that the reference weight specification applies to item 1 (the lower neck load cell) only, and not the entire assembly.
        III. Denton Requested Changes
        Denton requested the following 6 changes to the ES-2re drawing package. The petitioner's requests are set forth verbatim in the list below, and following each request is NHTSA's tentative decision on the request.
        1. Denton states:

          Drawing No. 175-1001: NHTSA drawing specifies the distance between the upper 2 holes to be 71.2 mm apart. The ES-2re skull dimensions are derived from the Hybrid III 50th dimensions. This dimension in the Hybrid III 50th drawing package is 2.800 inches, which converts to 71.1 mm. Additionally, the distance between the holes on the mating part (175-1003) is 71.12. Therefore, we would like to request that the dimension on the above referenced drawing be changed to 71.1.

        NHTSA agrees that 71.1 mm is the correct dimension. Given the tolerances of the hole sizes, this will allow the skull and skull cap to match each other in assembly.
        2. “Drawing No. 175-3017: NHTSA drawing specifies the material for this part to be “Moulded Ureol 100”. This is a material manufactured by a single supplier. We would like to request that the specification for the material be more generic or add “Or Equivalent” to the specification.”
        We are denying the request as redundant. Because the drawing already indicates that this material is a reference for material selection and thus another equivalent material can be used, it is unnecessary to add “or equivalent.”
        3. “Drawing No. 175-4006: NHTSA drawing specifies ‘Screw, SHCS M3 x .5 x 8' for item no. 18. We would like to request that the specification be changed to `Screw, BHCS M3 x .5 x 8['] as a button head screw has more surface area under the head thus providing better clamping force and less distortion to part no. 175-4031.”
        NHTSA believes that the current socket head cap screw (SHCS) will work sufficiently, but agrees that a button head cap screw (BHCS) would also be acceptable. Therefore, we are keeping the part as a SHCS, but are adding an option to the drawing that allows use of the BHCS M3 x .5 x 8.
        4. “Drawing No. 175-4012: NHTSA drawing calls out 4X M3 x .5 ISO—H Tap x 6.0 Deep. We would like to request that these tapped holes be made optional as they serve no purpose in the assembly of the dummy.”
        NHTSA agrees that these holes are not required for any functional purpose and should be specified as optional.
        5. “Drawing Nos. 175-4040, 175-4041 & 175-4042: NHTSA drawing specifies that the free length tolerance should be +/− 1 mm. According to the Spring Manufacturers Institute (SMI), the normal commercial tolerance for the length should be +/−3 mm when the spring index, length and number of coils are considered for these specific springs. Therefore, we would like to request that the free length tolerance be changed to +/−3 mm.”
        NHTSA does not agree with this request. Increasing the tolerance of the free spring length could create problems with variation in dummy thoracic response, since these springs are part of the ES-2re rib modules. For example, if the free spring length is too long, this could lead to a large preload in the spring and greater resistance to compression. Conversely, if the free spring length is too short, the spring will offer less resistance to compression. Therefore, we are denying the request and are maintaining a spring length tolerance of +/− 1 mm.
        6. Denton states:

          Drawing Nos. 175-7053-1, 175-7053-3 & 175-7055: NHTSA drawing specifies [a] through hole diameter of .373 +.0005/−.0000. We believe the hole diameter is too small and the tolerance is unnecessarily tight. At minimum diameter condition of the hole, a 3/8 diameter shoulder bolt may not go through. At the maximum diameter condition of the hole, assembly of the knee is still very difficult as there still may only be .0005 in. clearance. Therefore, we would like to request the hole diameter tolerance be changed to +.005/−.000 on these three drawings.

        NHTSA is denying this request. The ES-2re knee design is a carry-over from the Hybrid II dummy, Part 572 Subpart B. The design is also incorporated into the knee of the SID dummy, Subpart F. The knee plates are designed to provide a very tight fit, and careful selection of the bolt will allow the knee assembly to function properly. The SID has had many years of use, and we know of no reports of problems assembling the knee. Furthermore, Denton has not provided evidence that its request to allow a loose fit will not result in any performance degradation.
        IV. Corrections to Figure 22
        NHTSA observed that Figure 22, “Pendulum Specifications,” of 49 CFR part 572 has several dimensional errors that need correction. This pendulum is used in neck qualification tests for the ES-2re as well as other adult crash test dummies, including the Hybrid III 50th percentile male and 5th percentile female frontal crash test dummies, the SID-IIsD 5th percentile female side impact dummy, and the SID and SID/HIII side impact crash test dummies. The dimensional corrections that should be made to this figure are listed below and shown in Figure 1 of this preamble, below:
        • The 8.28 millimeter (mm) (32.6 inch (in)) dimension should be 828 mm (32.6 in);
        • The 4.8 mm (188 in) dimension should be 4.8 mm (0.188 in);
        • The 198.6 mm (7.75 in) dimension should be 196.8 mm (7.75 in).
        BILLING CODE 4910-59-P

          EP05FE10.027

        BILLING CODE 4910-59-C
        V. Rulemaking Analyses and Notices
        Executive Order 12866 and DOT Regulatory Policies and Procedures
        Executive Order 12866, “Regulatory Planning and Review” (58 FR 51735, October 4, 1993), provides for making determinations whether a regulatory action is “significant” and therefore subject to Office of Management and Budget (OMB) review and to the requirements of the Executive Order. This proposed rulemaking action was not considered a significant regulatory action under Executive Order 12866. This proposed rulemaking action was also determined not to be significant under the Department of Transportation's (DOT's) regulatory policies and procedures (44 FR 11034, February 26, 1979). This proposed rule would only correct or make slight changes to some of the drawings of the ES-2re test dummy. These changes would not affect the cost of the dummy. Because the economic impacts of this proposal are so minimal, no further regulatory evaluation is necessary.
        Regulatory Flexibility Act
        Pursuant to the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996), whenever an agency is required to publish a proposed or final rule, it must prepare and make available for public comment a regulatory flexibility analysis that describes the effect of the rule on small entities (i.e., small businesses, small organizations, and small governmental jurisdictions), unless the head of the agency certifies the rule will not have a significant economic impact on a substantial number of small entities. The Small Business Administration's regulations at 13 CFR part 121 define a small business, in part, as a business entity “which operates primarily within the United States.” (13 CFR 121.105(a)).

        We have considered the effects of this rulemaking under the Regulatory Flexibility Act. I hereby certify that the proposed rulemaking action would not have a significant economic impact on a substantial number of small entities. This action would not have a significant economic impact on a substantial number of small entities because correcting or making minor changes to the drawings would not impose any requirements on anyone. NHTSA would not require anyone to manufacture or redesign the dummy.
        National Environmental Policy Act
        NHTSA has analyzed this proposal for the purposes of the National Environmental Policy Act and determined that it will not have any significant impact on the quality of the human environment.
        Executive Order 13132 (Federalism)
        NHTSA has examined today's proposed rule 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 proposed rule does not have federalism implications because the proposed rule does not have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” This proposed rule would not impose any requirements on anyone. Businesses would be affected only if they choose to manufacture or test with the dummy.
        Further, no consultation is needed to discuss the preemptive effect of today's proposed rule. NHTSA's safety standards can have preemptive effect in at least two ways. This proposed rule would amend 49 CFR part 572 and is not a safety standard.2
           If this proposed Part 572 rule becomes final, it would not impose any requirements on anyone.

            2 With respect to the safety standards, the National Traffic and Motor Vehicle Safety Act contains an express preemptive 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). Second, the Supreme Court has recognized the possibility of implied preemption: State requirements imposed on motor vehicle manufacturers, including sanctions imposed by State tort law, can stand as an obstacle to the accomplishment and execution of an NHTSA safety standard. When such a conflict is discerned, the Supremacy Clause of the Constitution makes their State requirements unenforceable. See Geier v. American Honda Motor Co., 529 U.S. 861 (2000).

        Civil Justice Reform
        This proposed rule would not have any retroactive effect. Under 49 U.S.C. 30103, whenever a Federal motor vehicle safety standard is in effect, a State may not adopt or maintain a safety standard applicable to the same aspect of performance which is not identical to the Federal standard, except to the extent that the State requirement imposes a higher level of performance and applies only to vehicles procured for the State's use. 49 U.S.C. 30161 sets forth a procedure for judicial review of final rules establishing, amending, or revoking Federal motor vehicle safety standards. That section does not require submission of a petition for reconsideration or other administrative proceedings before parties may file suit in court.
        Paperwork Reduction Act
        Under the Paperwork Reduction Act of 1995, a person is not required to respond to a collection of information by a Federal agency unless the collection displays a valid control number from the Office of Management and Budget (OMB). This proposed rule would not have any requirements that are considered to be information collection requirements as defined by the OMB in 5 CFR part 1320.
        National Technology Transfer and Advancement Act

        Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272) directs NHTSA to use voluntary consensus standards in its regulatory activities unless doing so would be inconsistent with applicable law or otherwise impractical. 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. The NTTAA directs NHTSA to provide Congress, through OMB, explanations when the agency decides not to use available and applicable voluntary consensus standards. There are no voluntary consensus standards relevant to this proposed rule.
        Unfunded Mandates Reform Act
        Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, Federal requires 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 for inflation with base year of 1995). Before promulgating an NHTSA rule for which a written statement is needed, section 205 of the UMRA generally requires the agency to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective, or least burdensome alternative that achieves the objectives of the rule.
        This proposed rule would not impose any unfunded mandates under the UMRA. This proposed rule would not meet the definition of a Federal mandate because it would not impose requirements on anyone. It would amend 49 CFR part 572 by correcting or making minor changes to some of the drawings for a test dummy that the agency uses. If this proposed rule becomes final, it would affect, in a small manner, only those businesses that choose to manufacture or test with the dummy. It would not result in costs of $100 million or more to either State, local, or Tribal governments, in the aggregate, or to the private sector.
        Plain Language
        Executive Order 12866 requires each agency to write all rules in plain language. Application of the principles of plain language includes consideration of the following questions:

        —Has the agency organized the material to suit the public's needs?
        —Are the requirements in the rule clearly stated?
        —Does the rule contain technical language or jargon that is not clear?
        —Would a different format (grouping and order of sections, use of headings, paragraphing) make the rule easier to understand?
        —Would more (but shorter) sections be better?
        —Could the agency improve clarity by adding tables, lists, or diagrams?
        —What else could the agency do to make this rulemaking easier to understand?

        If you have any responses to these questions, please include them in your comments on this NPRM.
        Regulation Identifier Number
        The Department of Transportation assigns a regulation identifier number (RIN) 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. You may use the RIN contained in the heading at the beginning of this document to find this action in the Unified Agenda.
        VI. 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.

        Please submit your comments by any of the methods provided above under ADDRESSES.
        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.

        Further, note that 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 published on April 11, 2000 (65 FR 19477-78).
        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 a copy from which you have deleted the claimed confidential business information to the Docket using any of the methods 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 that the Docket receives before the close of business on the comment closing date indicated above under DATES. To the extent possible, we will also consider comments that the Docket receives 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 received by the Docket at the address given above under ADDRESSES. The hours of the Docket 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.

          List of Subjects in 49 CFR Part 572
          Motor vehicle safety, Incorporation by reference.

        In consideration of the foregoing, NHTSA is proposing to amend 49 CFR part 572 as follows:

          PART 572—ANTHROPOMORPHIC TEST DEVICES
          1. The authority citation for part 572 continues to read as follows:

            Authority:
            49 U.S.C. 322, 30111, 30115, 30117 and 30166; delegation of authority at 49 CFR 1.50.

            Subpart E—Hybrid III Test Dummy

          2. In § 572.33, revise Figure 22 following paragraph (c)(3) to read as follows:

            § 572.33
            Neck.

            (c) * * *
            (3) * * *

              EP05FE10.028

            BILLING CODE 4910-59-C

            Subpart U—ES-2re Side Impact Crash Test Dummy, 50th Percentile Adult Male

          3. Section 572.180 is amended by revising paragraph (a)(1), the introductory text of paragraph (a)(2), and paragraph (c)(1), to read as follows:

            § 572.180
            Incorporated materials.
            (a) * * *
            (1) A parts/drawing list entitled, “Parts/Drawings List, Part 572 Subpart U, Eurosid 2 with Rib Extensions (ES2re), September 2009,”
            (2) A drawings and inspection package entitled “Parts List and Drawings, Part 572 Subpart U, Eurosid 2 with Rib Extensions (ES-2re, Alpha Version), September 2009,” consisting of:

            (c) * * *
            (1) The Parts/Drawings List, Part 572 Subpart U, Eurosid 2 with Rib Extensions (ES2re) referred to in paragraph (a)(1) of this section, the Parts List and Drawings, Part 572 Subpart U, Eurosid 2 with Rib Extensions (ES-2re, Alpha Version) referred to in paragraph (a)(2) of this section, and the PADI document referred to in paragraph (a)(3) of this section, are available in electronic format through Regulations.gov and in paper format from Leet-Melbrook, Division of New RT, 18810 Woodfield Road, Gaithersburg, MD 20879, telephone (301) 670-0090.

            4. Section 572.181 is amended by revising paragraphs (a), (b), and (c) to read as follows:

            § 572.181
            General description.
            (a) The ES-2re Side Impact Crash Test Dummy, 50th Percentile Adult Male, is defined by:

            (1) The drawings and specifications contained in the “Parts List and Drawings, Part 572 Subpart U, Eurosid 2 with Rib Extensions (ES-2re, Alpha Version), September 2009,” incorporated by reference in § 572.180, which includes the technical drawings and specifications described in Drawing 175-0000, the titles of which are listed in Table A;

              Table A

                Component assembly
                Drawing No.

                Head Assembly
                175-1000

                Neck Assembly Test/Cert
                175-2000

                Neck Bracket Including Lifting Eyebolt
                175-2500

                Shoulder Assembly
                175-3000

                Arm Assembly-Left
                175-3500

                Arm Assembly-Right
                175-3800

                Thorax Assembly with Rib Extensions
                175-4000

                Abdominal Assembly
                175-5000

                Lumbar Spine Assembly
                175-5500

                Pelvis Assembly
                175-6000

                Leg Assembly, Left
                175-7000-1

                Leg Assembly, Right
                175-7000-2

                Neoprene Body Suit
                175-8000

             (2) “Parts/Drawings List, Part 572 Subpart U, Eurosid 2 with Rib Extensions (ES2re), September 2009,” containing 9 pages, incorporated by reference in § 572.180,
            (3) A listing of available transducers-crash test sensors for the ES-2re Crash Test Dummy is shown in drawing 175-0000 sheet 4 of 6, dated February 2008, incorporated by reference in § 572.180,
            (4) Procedures for Assembly, Disassembly and Inspection (PADI) of the ES-2re Side Impact Crash Test Dummy, February 2008, incorporated by reference in § 572.180,
            (5) Sign convention for signal outputs reference document SAE J1733 Information Report, titled “Sign Convention for Vehicle Crash Testing” dated December 1994, incorporated by reference in § 572.180.
            (b) Exterior dimensions of ES-2re test dummy are shown in drawing 175-0000 sheet 3 of 6, dated February 2008.
            (c) Weights of body segments (head, neck, upper and lower torso, arms and upper and lower segments) and the center of gravity location of the head are shown in drawing 175-0000 sheet 2 of 6, dated February 2008.

            Issued: January 29, 2010.
            Stephen R. Kratzke,
            Associate Administrator for Rulemaking.

      [FR Doc. 2010-2308 Filed 2-4-10; 8:45 am]
      BILLING CODE 4910-59-P


        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Part 622
        [Docket No. 131113952-6673-01]
        RIN 0648-BD78
        Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; Snapper-Grouper Fishery Off the Southern Atlantic States; Regulatory Amendment 16

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

          ACTION:
          Proposed rule; request for comments.

          SUMMARY:
          NMFS proposes regulations to implement Regulatory Amendment 16 to the Fishery Management Plan for the Snapper-Grouper Fishery of the South Atlantic Region (FMP) (Regulatory Amendment 16), as prepared and submitted by the South Atlantic Fishery Management Council (Council). If implemented, this proposed rule would revise the current seasonal prohibition on the use of black sea bass pot gear in the South Atlantic and add additional gear marking requirements for black sea bass pot gear. The purpose of this proposed rule is to reduce the adverse socioeconomic impacts from the current seasonal black sea bass pot gear prohibition while continuing to protect Endangered Species Act (ESA) listed whales in the South Atlantic. This proposed rule would also help better identify black sea bass pot gear in the South Atlantic.

          DATES:
          Written comments must be received on or before September 12, 2016.

          ADDRESSES:

          You may submit comments on the proposed rule, identified by “NOAA-NMFS-2013-0165” by either 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-2013-0165, click the “Comment Now!” icon, complete the required fields, and enter or attach your comments.
          • Mail: Submit written comments to Nikhil Mehta, Southeast Regional Office, NMFS, 263 13th Avenue South, St. Petersburg, FL 33701.

            Instructions: Comments sent by any other method, to any other address or individual, or received after the end of the comment period, may not be considered by NMFS. All comments received are 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).

          Electronic copies of Regulatory Amendment 16, which includes an environmental impact statement (EIS), a Regulatory Flexibility Act (RFA) analysis, and a regulatory impact review, may be obtained from the Southeast Regional Office Web site at https://sero.nmfs.noaa.gov/sustainable_fisheries/s_atl/sg/2013/reg_am16/index.html.

          Comments regarding the burden-hour estimates, clarity of the instructions, or other aspects of the collection-of-information requirements contained in this proposed rule (see the Classification section of the preamble) may be submitted in writing to Adam Bailey, Southeast Regional Office, NMFS, 263 13th Avenue South, St. Petersburg, FL 33701; or the Office of Management and Budget (OMB), by email at OIRA_Submission@omb.eop.gov, or by fax to 202-395-5806.

          FOR FURTHER INFORMATION CONTACT:
          Nikhil Mehta, telephone: 727-824-5305, email: nikhil.mehta@noaa.gov.

        SUPPLEMENTARY INFORMATION:
        Black sea bass is in the snapper-grouper fishery and is managed under the FMP. The FMP was prepared by the Council and is implemented through regulations at 50 CFR part 622 under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act).
        Background
        On December 4, 2013, NMFS published a notice of intent to prepare a draft EIS for Regulatory Amendment 16 and requested public comment (78 FR 72968). On October 23, 2015, the notice of availability for the draft EIS was published and public comment was also requested (80 FR 64409). The notice of availability for the final EIS for Regulatory Amendment 16 published on July 1, 2016 (81 FR 43198).
        The black sea bass stock in the South Atlantic was most recently assessed through the Southeast Data, Assessment, and Review (SEDAR) stock assessment process in 2013 (SEDAR 25 Update). The SEDAR 25 Update determined that the black sea bass stock in the South Atlantic is not undergoing overfishing and is not overfished. The SEDAR 25 Update indicated that the black sea bass commercial and recreational sector annual catch limits (ACLs) could be increased without jeopardizing the health of the population, and as a result, the black sea bass commercial and recreational ACLs were increased through the final rule to implement Regulatory Amendment 19 to the FMP (78 FR 58249, September 23, 2013).
        Additionally, Regulatory Amendment 19 established an annual prohibition on the use of black sea bass pots from November 1 through April 30. During this closure, no person is allowed to harvest or possess black sea bass in or from the South Atlantic exclusive economic zone (EEZ) either with sea bass pots or from a vessel with sea bass pots on board. In addition, sea bass pots must be removed from the water in the South Atlantic EEZ prior to November 1, and may not be on board a vessel in the South Atlantic EEZ during this seasonal closure. The black sea bass pot seasonal prohibition became effective on October 23, 2013.
        Through Regulatory Amendment 19, the seasonal sea bass pot prohibition was established as a precautionary measure to prevent interactions between black sea bass pot gear and ESA-listed whales during periods of large whale migrations and during the right whale calving season off the U.S. southeastern coast. The large whale migration period and the right whale calving season in the South Atlantic extends from approximately November 1 through April 30, each year. Since 2010, black sea bass harvest levels have reached the commercial quota, thereby triggering accountability measures (AMs) to close the commercial sector. In recent years, these in-season commercial closures have occurred prior to November 1, the beginning of the right whale calving season, therefore, Council and NMFS actions to prevent black sea bass pot gear from being in the water during periods of higher whale concentrations had been unnecessary to restrict interactions between black sea bass pot fishers and ESA-listed whales. However, NMFS determined that the increase in the black sea bass commercial ACL implemented through Regulatory Amendment 19 could extend the commercial black sea bass fishing season beyond November 1, and into a time period when a higher concentration of endangered whales are known to migrate through black sea bass fishing grounds.
        Management Measures Contained in This Proposed Rule
        This proposed rule would implement modifications to the current black sea bass pot seasonal closure. This proposed rule would also modify the buoy line rope marking requirements for black sea bass pots.
        Black Sea Bass Pot Gear Seasonal Prohibition
        As established through Regulatory Amendment 19, black sea pot gear is prohibited in the South Atlantic EEZ annually from November 1 through April 30. This proposed rule would retain the November 1 through April 30 prohibition on the use of black sea bass pots, but would modify the boundaries of the prohibition. This rule would revise the South Atlantic EEZ-wide seasonal closure to a closure of two temporal and spatial components. The first closure period would be for the months of November and April, and the second closure period would be for the months of December through March each year. The first closure period is illustrated by the Figure 1 below. During November and April, the eastern boundary of the sea bass pot closed area off North and South Carolina is closer to shore than during the months of December through March.

          EP11AU16.000

        During the second closure period from December through March each year, the sea bass pot closure area would be larger off the entire South Atlantic coast than it would be during November and April, particularly off Georgia and Florida. Waters off the coast of Georgia and Florida represent the primary right whale calving grounds in the South Atlantic EEZ. This bathymetric area is based on right whale sightings (all demographic segments) and sightings per unit of effort (proxy of density) by depth and captures 97 percent and 96 percent of right whale sightings off the North Carolina/South Carolina area, and Florida/Georgia area, respectively. The proposed sea bass pot prohibited area for December through March is illustrated in Figure 2 below.

          EP11AU16.001

        The Council has determined that reducing the size of the current black sea bass pot prohibition would continue to provide the necessary protection to ESA-listed whales in the South Atlantic. The Council based this conclusion on an analysis that simulated the potential black sea bass landings of black sea bass pot endorsement holders during a winter season and created overlays of the co-occurrence of the seasonal distribution of black sea bass pot gear and North Atlantic right whales as a proxy for the relative risk of right whale entanglements under each of the proposed alternatives in Regulatory Amendment 16. The findings of this analysis were recently published in the peer-reviewed journal, “Marine and Coastal Fisheries” by Farmer et al. (2016) which is available at the following Web site: http://dx.doi.org/10.1080/19425120.2016.1146181.

        As described in Regulatory Amendment 16, the alternatives for all of the proposed black sea bass pot closures were developed considering the following spatial, temporal, and environmental variables. Spatial variation in the distribution of right whales is influenced by local environmental variables such as water temperature, depth, and distance to shore. The closed areas proposed in this rule incorporate these environmental variables and spatial distribution patterns to minimize the risk of interactions of marine mammals with black sea bass pot gear. During the months of November and April, the area proposed to be closed through this rule would prohibit black sea bass pots inshore of an area which represents 91 percent of historical right whale sightings off Florida and Georgia; and off North Carolina and South Carolina, the black sea bass pot prohibition would apply to Federal waters shallower than 25 m. During December through March, the area proposed to be closed through this rule would prohibit black sea bass pots shallower than 25 m off Florida and Georgia; and from the Georgia/South Carolina border to Cape Hatteras, North Carolina, the prohibition would apply to Federal waters that are shallower than 30 m in depth. This bathymetric area is based on right whale sightings by depth and captures 97 percent and 96 percent of right whale sightings off the North Carolina/South Carolina area, and Florida/Georgia area, respectively. NMFS is currently conducting an ESA section 7 consultation.
        Additionally, the proposed closure areas listed in this rule are expected to minimize adverse socioeconomic effects of the current November through April black sea bass pot prohibition by increasing the area available to fish using black sea bass pots.
        This proposed rule would also allow for vessel transit through the proposed black sea bass pot closed areas providing the black sea bass pot gear is appropriately stowed on the vessel. Transit would be defined as non-stop progression through the closed area; fishing gear appropriately stowed means all black sea bass pot gear must be out of the water and on board the deck of the vessel. All buoys must either be disconnected from the gear or stowed within the sea bass pot. The disconnected buoys may remain on deck.
        Gear Marking Requirements
        Fish traps and pot buoy lines, including black sea bass pots, are currently required to have specific line marking requirements during certain times of the year and in the locations described in the Atlantic Large Whale Take Reduction Plan (ALWTRP)(see 50 CFR 229.32(b)). The ALWTRP includes at least three trap/pot areas where black sea bass pots may be fished. This includes the Offshore Trap/Pot Waters Area, Southern Nearshore Trap/Pot Waters Area, and the U.S. Southeast Restricted Area North.
        Regulatory Amendment 16 would modify the current gear marking requirements under the FMP by requiring additional markings for black sea bass pot buoy lines. This proposed rule would require that an additional 12-inch (30.5 cm) wide purple band be added onto the buoy line at the end of, and directly adjacent to, each of the currently required 12-inch (30.5 cm) colored marks required through the ALWTRP described in 50 CFR 229.32(b). Within the Council's jurisdiction for managing black sea bass, the proposed additional black sea bass gear marking requirements would be required to be in place in Federal waters from September 1 through May 31 in the Offshore Trap/Pot Waters Area and the Southern Nearshore Trap/Pot Waters Area, and from November 15 through May 31 in the Southeast U.S. Restricted Areas North. The Council's requirement that sea bass pot gear have additional gear-specific marking would help distinguish black sea bass pots from other types of trap and pot gear in the South Atlantic EEZ.
        Classification
        Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the NMFS Assistant Administrator has determined that this proposed rule is consistent with Regulatory Amendment 16, other provisions of the Magnuson-Stevens Act, and other applicable laws, subject to further consideration after public comment.
        This proposed rule has been determined to be not significant for purposes of Executive Order 12866.

        NMFS prepared an initial regulatory flexibility analysis (IRFA), as required by section 603 of the RFA, for this proposed rule. The IRFA describes the economic impact this proposed rule, if adopted, would have on small entities. A description of the action, why it is being considered, the objectives of, and legal basis for this action are contained at the beginning of this section in the preamble and in the SUMMARY section of the preamble. A copy of the full analysis is available from NMFS (see ADDRESSES). A summary of the IRFA follows.
        The Magnuson-Stevens Act provides the statutory basis for this proposed rule. No duplicative, overlapping, or conflicting Federal rules have been identified. In addition, no new reporting or record-keeping requirements are introduced by this proposed rule. However, the proposed rule would require that for each sea bass pot buoy line an additional 12-inch (30.5 cm) wide purple band be added at the end of, and directly adjacent to, each of the currently required 12-inch (30.5 cm) colored marks required under the ALWTRP discussed above. Similar to the current requirements under the ALWTRP, this marking requirement does not need an additional expertise on the part of fishermen. NMFS estimates that this requirement would cost each pot endorsement holder about an additional $5 annually if surveyor's tape is used for line marking, or about an additional $90 annually if paint is used instead. The estimated additional annual time burden associated with the proposed marking requirement is up to approximately 3.5 hours annually.
        NMFS expects this proposed rule to directly affect federally permitted commercial fishermen fishing for black sea bass in the South Atlantic. For RFA purposes only, NMFS has established a small business size standard for businesses, including their affiliates, whose primary industry is commercial fishing (see 50 CFR 200.2). A business primarily engaged in commercial fishing (NAICS code 11411) is classified as a small business if it is independently owned and operated, is not dominant in its field of operation (including affiliates), and has combined annual receipts not in excess of $11 million for all its affiliated operations worldwide. The $11 million standard became effective on July 1, 2016, and is to be used in place of the U.S. Small Business Administration's (SBA) current standards of $20.5 million, $5.5 million, and $7.5 million for the finfish (NAICS 114111), shellfish (NAICS 114112), and other marine fishing (NAICS 114119) sectors of the U.S. commercial fishing industry in all NMFS rules subject to the RFA after July 1, 2016.
        Pursuant to the RFA, and prior to July 1, 2016, an IRFA was developed for this regulatory action using SBA's size standards. NMFS has reviewed the analyses prepared for this regulatory action in light of the new size standard. All of the entities directly affected by this regulatory action are commercial fishing businesses and were considered small under the SBA's size standards, and they all would continue to be considered small under the new NMFS standard. Thus, NMFS has determined that the new size standard does not affect analyses prepared for this regulatory action.

        As of December 31, 2014, there were 32 holders of the Federal black sea bass pot endorsement to the snapper-grouper commercial permit. Since that time one endorsement holder has dropped out of the black sea bass pot component of the commercial sector, but the current analysis uses 32 endorsement holders because historical records of these 32 endorsement holders were used in Regulatory Amendment 16. Retaining the records of 32 endorsement holders is not expected to inflate the analytical results because only an average of 31 vessels fished for black sea bass using pots.
        From the 2000/2001 through 2013/2014 fishing years, these endorsement holders used an average of 31 vessels fishing for black sea bass using pots. These vessels generated total combined revenues (2014 dollars) of $732,717 from black sea bass, $228,468 from other species jointly landed with black sea bass, and $248,662 from all other species in trips where black sea bass was not caught. The average annual revenue per vessel from all species, including black sea bass, landed by these vessels was $38,715 (2014 dollars). During the same time period, an average of 215 vessels using gear other than sea bass pots landed at least 1 lb (0.45 kg) of black sea bass. These vessels generated dockside total combined revenues (2014 dollars) of $199,574 from black sea bass, $3.838 million from other species jointly landed with black sea bass, and $7.680 million from all other species in trips where black sea bass was not caught. The average annual revenue per vessel from all species, including black sea bass, landed by these vessels was $54,651 (2014 dollars). Vessels that caught and landed black sea bass may also operate in other fisheries, the revenues of which are not known and are not reflected in these totals. Based on revenue information, all commercial vessels directly affected by the proposed rule may be assumed to be small entities.
        Because all entities expected to be directly affected by this proposed rule are assumed to be small entities, NMFS has determined that this proposed rule would affect a substantial number of small entities. However, the issue of disproportionate effects on small versus large entities does not arise in the present case.
        The proposed rule would modify the November 1 through April 30 prohibition on the use of black sea bass pot gear in the South Atlantic by allowing black sea bass pot fishing at depths greater than approximately 25 m from November 1 through April 30 from approximately Cape Canaveral, Florida, to the Georgia/South Carolina border; at depths greater than approximately 25 m from November 1 through 30 and from April 1 through 30 off North and South Carolina; and, at depths greater than approximately 30 m from December 1 through March 31 off North and South Carolina. In addition, the proposed rule would require black sea bass pot endorsement holders to put three 12-inch (30.5 cm) purple markings on each sea bass pot buoy line adjacent to the already required colors on these lines under the ALWTRP. The marks are commonly made with either paint or surveyor's tape. As described in the codified text, other materials may also be used for marking the line.
        The proposed modification to the current prohibition on the use of black sea bass pot gear would have contrasting economic effects on the two major groups of participants in the commercial harvest of black sea bass. The proposed action would benefit those using pots for harvesting black sea bass, and given that the commercial ACL is predicted to be fully taken, benefits to users of other gear would decrease. The combined dockside revenues (2014 dollars) for all pot gear vessels are estimated to increase annually between $113,964 and $185,068 based on 2000-2013 average black sea bass price, or between $163,606 and $260,355 based on 2011-2013 average black sea bass price. Two price levels are used to provide some bounds on the range of revenue effects. The lower bound is based on the 2000-2013 average black sea bass price and the upper bound is based on the 2011-2013 average black sea bass price. In contrast, the combined dockside revenues (2014 dollars) for all non-pot gear vessels are estimated to decrease annually between $68,323 and $141,527 based on 2000-2013 average black sea bass price, or between $116,650 and $241,631 based on 2011-2013 the average black sea bass price. The net revenue change for all vessels combined would be between $43,541 and $46,367 based on 2000-2013 average price for black sea bass, or between $43,889 and $46,553 based on 2010-2013 average price for black sea bass. Assuming that revenue increases for users of pot gear would be equally distributed among the 32 endorsement holders, revenues per pot endorsement holder would increase annually between $3,561 and $5,783, or between $5,113 and $8,136. However, revenue per vessel for the 215 users of non-pot gear would decrease between $318 and $658, or between $543 and $1,124. For vessels using pot gear, the expected revenue increases would be approximately 9 to 21 percent of their average annual revenue of $38,715 per vessel. However, revenue losses to vessels using gear other than sea bass pots would be between 1 and 2 percent of their average annual revenue of $54,651 per vessel. Therefore, on a per vessel basis, the revenue gains to the pot endorsement holders could potentially be substantial, whereas the revenue losses to the other gear users would be relatively small.
        The proposed requirement on black sea bass pot endorsement holders to put three 12-inch (30.5 cm) purple markings on each pot buoy line adjacent to the already required colors under the ALWTRP would cost each endorsement holder about an additional $5 annually if surveyor's tape is used, or about an additional $90 annually if paint is used instead. This cost is relatively small.
        The following discussion describes the alternatives that were not selected as preferred by the Council. In this section, the term “overall revenues” refers to the sum of revenues from vessels using black sea bass pots and revenues from vessels using gear other than black sea bass pots.
        Twelve alternatives, including the preferred alternative as described above, were considered for modifying the November 1 through April 30 prohibition on the use of black sea bass pot gear. The first alternative, the no action alternative, would maintain the current economic benefits to all participants in the fishery as well as provide the least likelihood of right whales getting entangled with black sea bass pot lines. However, this alternative would not address the need to reduce the adverse socioeconomic effects of the current prohibition on the use of black sea bass pot gear.
        The second alternative would apply the black sea bass pot closure to the area currently designated as North Atlantic right whale critical habitat from November 15 through April 15. This alternative would provide slightly more increases in overall revenues to commercial vessels than the preferred alternative, but it would also pose the highest threat of right whale entanglement with pot buoy lines.
        The third alternative would apply the black sea bass pot closure from approximately Ponce Inlet, Florida, to Cape Hatteras, North Carolina, annually from November 1 through April 30. Relative to the preferred alternative, this alternative would result in higher overall revenue increases but lower protection to right whales from getting entangled with pot buoy lines.

        The fourth alternative would apply the black sea bass pot closure from approximately Cape Canaveral, Florida, to Cape Hatteras, North Carolina, annually from November 1 through April 30. Although this alternative would provide increased protection to right whales from entanglement with pot buoy lines, it would result in smaller overall revenue increases than the preferred alternative.
        The fifth alternative would apply the black sea bass pot closure from approximately Daytona Beach, Florida, to Cape Hatteras, North Carolina, annually from November 1 through April 30. Relative to the preferred alternative, this alternative would provide slightly more increases in overall revenues to commercial vessels but would provide less protection to right whales from entanglement with pot buoy lines.
        The sixth alternative would apply the black sea bass pot closure from approximately Sebastian Inlet, Florida, to Cape Hatteras, North Carolina, annually from November 1 through April 30. Although this alternative would provide the second greatest protection in comparison with the alternatives in Regulatory Amendment 16 to right whales from entanglement with pot buoy lines, it would result in lower overall revenue increases than the preferred alternative.
        The seventh alternative would apply the black sea bass pot closure from approximately the Altamaha River, Georgia, to Cape Hatteras, North Carolina, annually from November 1 through December 15 and March 15 through April 30; or annually from November 1 through December 15 and March 15 through April 30 for the area off North Carolina and South Carolina, and from November 15 through April 15 for the area off Georgia and Florida; or annually from February 15 through April 30 for the area off North Carolina and South Carolina, and from November 15 through April 15 for the area off Georgia and Florida. Relative to the preferred alternative, this alternative and its sub-alternatives would result in relatively higher overall revenue increases but would provide much reduced protection to right whales from entanglement with sea bass pot buoy lines.
        The eighth alternative would apply the black sea bass pot closure from approximately Daytona Beach, Florida, to Cape Hatteras, North Carolina, annually from November 1 through April 15; or annually from November 1 through December 15 and February 15 through April 30 for the area off North Carolina and South Carolina, and from November 15 through April 15 for the area off Georgia and Florida. Relative to the preferred alternative, this alternative and its sub-alternatives would result in higher overall revenue increases but would afford a much reduced protection to right whales from entanglement with pot buoy lines.
        The ninth alternative would apply the black sea bass pot closure from approximately Daytona Beach, Florida, to Cape Hatteras, North Carolina, annually from November 1 through April 15; or annually from November 1 through December 15 and February 15 through April 30 for the area off North Carolina and South Carolina, and from November 15 through April 15 for the area off Georgia and Florida. Relative to the preferred alternative, this alternative and its sub-alternatives would result in higher overall revenue increases but would provide much reduced protection to right whales from entanglement with pot buoy lines.
        The tenth alternative would apply the black sea bass pot closure from approximately the Georgia/South Carolina border, to Cape Hatteras, North Carolina, annually from November 1 through December 15, with the following provision: From February 15 through April 30, the black sea bass pot closure applies to waters inshore of points 1-28 listed in Table 2.1.9 of Regulatory Amendment 16, approximately the Georgia/South Carolina border, to Cape Hatteras, North Carolina; from December 16 through February 14, there would be no closure off of the Carolinas; from November 15 through April 15, the black sea bass pot closure applies to waters inshore of points 20-28 listed in Table 2.1.8 of Regulatory Amendment 16, approximately the Georgia/South Carolina border, to approximately Daytona Beach, Florida. Relative to the preferred alternative, this alternative would result in higher overall revenue increases but would provide much reduced protection to right whales from entanglement with pot buoy lines.
        The eleventh alternative would apply the black sea bass pot closure from approximately Cape Canaveral, Florida, to Cape Hatteras, North Carolina, annually from November 1 through April 30. Relative to the preferred alternative, this alternative would result in higher overall revenue increases but would provide slightly reduced protection to right whales from entanglement with pot buoy lines.
        Four alternatives, including the preferred alternative, were considered in addition to the existing ALWTRP buoy line/weak link gear requirements and buoy line rope marking for black sea bass pots in the South Atlantic. The first alternative, the no action alternative, would not impose any additional cost on fishermen when fishing for black sea bass using pots but it would not meet the need for the action. The second alternative, with two sub-alternatives, would impose requirements in addition to those required under the current ALWTRP for buoy lines from November 1 through April 30 in Federal waters in the South Atlantic. The first sub-alternative would require that the breaking strength for buoy lines not exceed 2,200 lb (997 kg) and the second sub-alternative would require that the breaking strength for buoy lines not exceed 1,200 lb (544 kg). The first sub-alternative is currently required under the ALWTRP in Federal waters off South Carolina, Georgia, and Florida, and would affect only about 17 pot endorsement holders in North Carolina. The estimated cost to each of these 17 fishermen is a maximum of $716. The second sub-alternative would impose the same cost per fisherman of $716 but would affect all 32 pot endorsement holders. The third alternative would require that the breaking strength of the weak links of the buoy lines must not exceed 400 lb (181 kg) for black sea bass pots in the South Atlantic EEZ. This alternative is a decrease from the current requirement of 600 lb (272 kg) breaking strength of the weak links under the ALWTRP, and is estimated to cost each of the 32 pot endorsement holders $65. Relative to the preferred alternative, all these alternatives, except the no action alternative, would impose higher costs upon fishermen using black sea bass pots.

        This proposed rule contains collection-of-information requirements subject to the Paperwork Reduction Act (PRA). NMFS is proposing to revise the collection-of-information requirement under OMB Control Number 0648-0358. NMFS estimates the proposed requirement for sea bass pot gear marking would result in an additional annual cost of up to $90 per sea bass pot endorsement holder and require up to an additional 3.5 hours per response per year. Based upon feedback from fishermen, the cost and time burden for the proposed marking requirement may be slightly lower in subsequent years depending on the marking method used. However, NMFS estimates the requirement to endorsement holders would result in the same for cost and time burden for each subsequent year, because different materials used to mark sea bass pot gear are available and the longevity of the markings vary depending on factors such as the length of the fishing season and how often the gear is used. This estimate of the public reporting burden includes the time for reviewing instructions, gathering and maintaining the data needed, and completing and reviewing the collection-of-information. NMFS will submit this revision request to OMB for approval.
        NMFS seeks public comment regarding:

          • Whether this proposed collection-of-information is necessary for the proper performance of the functions of the agency, including whether the gear marking will have practical utility;
          • The accuracy of the burden estimate;
          • The instructions for how to mark the sea bass pot gear; and
          • Ways to minimize the burden of the collection-of-information, including through the use of automated collection techniques or other forms of information technology.

        Send comments regarding the burden estimate or any other aspect of the collection-of-information requirement, including suggestions for reducing the burden, to NMFS or to OMB (see ADDRESSES).

        Notwithstanding any other provision of law, no person is required to respond to, nor shall a person be subject to a penalty for failure to comply with, a collection-of-information subject to the requirements of the PRA, unless that collection-of-information displays a currently valid OMB control number. All currently approved collections of information may be viewed at: http://www.cio.noaa.gov/services_programs/prasubs.html.

          List of Subjects in 50 CFR Part 622
          Annual catch limits, Black Sea Bass, Fisheries, Fishing, South Atlantic.

          Dated: August 3, 2016.
          Samuel D. Rauch III,
          Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.

        For the reasons set out in the preamble, 50 CFR part 622 is proposed to be amended as follows:

          PART 622—FISHERIES OF THE CARIBBEAN, GULF OF MEXICO, AND SOUTH ATLANTIC

        1. The authority citation for part 622 continues to read as follows:

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

        2. In § 622.183, revise paragraph (b)(6) to read as follows:

          § 622.183
          Area and seasonal closures.

          (b) * * *
          (6) Seasonal closure of the commercial black sea bass pot component of the snapper-grouper fishery. The closed area is that area and time period described in (b)(6)(i) and (b)(6)(ii) of this section, respectively. During the applicable closure, no person may harvest or possess black sea bass in or from the closed area within the South Atlantic EEZ either with sea bass pots or from a vessel with sea bass pots on board, except that a vessel with a valid commercial permit for snapper-grouper with a sea bass pot endorsement that is in transit and with black sea bass pot gear appropriately stowed as described in paragraph (b)(6)(iii) of this section may possess black sea bass. In addition, sea bass pots must be removed from the water in the applicable closed area within the South Atlantic EEZ before the applicable time period, and may not be on board a vessel in the closed area within the South Atlantic EEZ during the applicable closure, except for such sea bass pot gear appropriately stowed on board a vessel in transit through the closed area. See paragraph (b)(6)(iii) of this section for black sea bass pot transit and gear stowage requirements through the closed areas.
          (i) From November 1 through November 30 and from April 1 through April 30, no person may harvest or possess black sea bass in or from the closed area within the South Atlantic EEZ either with sea bass pots or from a vessel with sea bass pots on board in the South Atlantic EEZ inshore of the rhumb lines connecting, in order, the following points:

              Point
              North lat.
              West long.

              1
              35°15′
              State/EEZ boundary.

              2
              35°15′
              75°09′

              3
              35°06′
              75°22′

              4
              35°06′
              75°39′

              5
              35°01′
              75°47′

              6
              34°54′
              75°46′

              7
              34°52′
              76°04′

              8
              34°33′
              76°22′

              9
              34°23′
              76°18′

              10
              34°21′
              76°27′

              11
              34°25′
              76°51′

              12
              34°09′
              77°19′

              13
              33°44′
              77°38′

              14
              33°25′
              77°27′

              15
              33°22′
              77°40′

              16
              33°28′
              77°41′

              17
              33°32′
              77°53′

              18
              33°22′
              78°26′

              19
              33°06′
              78°31′

              20
              33°05′
              78°40′

              21
              33°01′
              78°43′

              22
              32°56′
              78°57′

              23
              32°44′
              79°04′

              24
              32°42′
              79°13′

              25
              32°34′
              79°23′

              26
              32°25′
              79°25′

              27
              32°23′
              79°37′

              28
              31°53′
              80°09′

              29
              31°31′
              80°33′

              30
              30°43′
              80°49′

              31
              30°30′
              81°01′

              32
              29°45′
              81°01′

              33
              29°31′
              80°58′

              34
              29°13′
              80°52′

              35
              29°13′
              State/EEZ boundary.

          (ii) From December 1 through March 31, no person may harvest or possess black sea bass in or from the closed area within the South Atlantic EEZ either with sea bass pots or from a vessel with sea bass pots on board in the South Atlantic EEZ inshore of the rhumb lines connecting, in order, the following points:

              Point
              North lat.
              West long.

              1
              35°15′
              State/EEZ boundary/

              2
              35°15′
              75°08′

              3
              34°58′
              75°41′

              4
              34°49′
              75°50′

              5
              34°47′
              76°05′

              6
              34°31′
              76°18′

              7
              34°20′
              76°13′

              8
              34°12′
              77°00′

              9
              33°43′
              77°30′

              10
              33°21′
              77°21′

              11
              33°18′
              77°41′

              12
              33°22′
              77°56′

              13
              33°12′
              78°20′

              14
              33°05′
              78°22′

              15
              33°01′
              78°38′

              16
              32°40′
              79°01′

              17
              32°36′
              79°18′

              18
              32°19′
              79°22′

              19
              32°16′
              79°37′

              20
              32°03′
              79°48′

              21
              31°39′
              80°27′

              22
              30°58′
              80°47′

              23
              30°13′
              81°01′

              24
              29°32′
              80°39′

              25
              29°22′
              80°44′

              26
              28°50′
              80°22′

              27
              28°21′
              80°18′

              28
              28°21′
              State/EEZ boundary.

          (iii) For the purpose of paragraph (b)(6) of this section, transit means non-stop progression through the area; fishing gear appropriately stowed means all black sea bass pot gear must be out of the water and on board the deck of the vessel. All buoys must either be disconnected from the gear or stowed within the sea bass pot. Disconnected buoys may remain on deck.

        3. In § 622.189, add paragraph (g) to read as follows:

          § 622.189
           Restrictions and requirements for sea bass pots.

          (g) Sea bass pot buoy line marking requirement. In addition to the gear marking requirements specified in 50 CFR 229.32(b), from November 15 through April 15, each year, in the Southeast U.S. Restricted Area North as described in 50 CFR 229.32(f) and from September 1 through May 31, each year in the Offshore Trap/Pot Waters Area and the Southern Nearshore Trap/Pot Waters Area, as described in 50 CFR 229.32(c)(6) and (9), respectively, the buoy line must be marked with a purple color band. The colored band must be clearly visible when the gear is hauled or removed from the water, including if the color of the rope is the same as, or similar, to the colored band. The purple band must be marked directly onto the line and adjacent to the buoy line markings specified in 50 CFR 229.32(b), that is, at the top, middle, and bottom of each buoy line deployed by, or on board, the vessel. Each of the three purple bands must be a 12-inch (30.5 cm) color mark. In marking or affixing the purple band, the line may be dyed, painted, or marked with thin colored whipping line, thin colored plastic, or heat-shrink tubing, or other material.

      [FR Doc. 2016-18998 Filed 8-10-16; 8:45 am]
       BILLING CODE 3510-22-P