        ENVIRONMENTAL PROTECTION AGENCY
        40 CFR Part 147
        [EPA-HQ-OW-2013-0280; FRL-9962-68-OW]
        State of North Dakota Underground Injection Control Program; Class VI Primacy Approval

          AGENCY:
          Environmental Protection Agency (EPA).

          ACTION:
          Proposed rule.

          SUMMARY:
          The Environmental Protection Agency (EPA) proposes to issue a rule approving an application from the state of North Dakota under the Safe Drinking Water Act (SDWA) to implement an underground injection control (UIC) program for Class VI injection wells located within the state, except those on Indian lands.

          DATES:
          Comments must be received on or before July 18, 2017.

          ADDRESSES:

          Submit your comments, identified by Docket ID No. EPA-HQ-OW-2013-0280, to the Federal eRulemaking Portal: http://www.regulations.gov. Follow the online instructions for submitting comments. Once submitted, comments cannot be edited or withdrawn. EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. EPA will generally not consider comments or comment contents located outside of the primary submission (i.e., on the web, cloud, or other file sharing system).

          For additional submission methods, the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.

          FOR FURTHER INFORMATION CONTACT:

          Lisa McWhirter, Drinking Water Protection Division, Office of Ground Water and Drinking Water (4606M), U.S. Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460; telephone number: (202) 564-2317; fax number: (202) 564-3754; email address: mcwhirter.lisa@epa.gov or Douglas Minter, Underground Injection Control Unit, U.S. Environmental Protection Agency, Region 8, 1595 Wynkoop Street, MSC 8WP-SUI, Denver, Colorado 80202; telephone number: (303) 312-6079; fax number: (303) 312-7084; email address: minter.douglas@epa.gov.

        SUPPLEMENTARY INFORMATION:

        I. Introduction
        The state of North Dakota received primary enforcement responsibility (primacy) for Class I, III, IV and V injection wells under SDWA section 1422 on October 5, 1984, and Class II injection wells under SDWA section 1425 on September 24, 1983. The state of North Dakota has applied to the EPA under SDWA section 1422, 42 U.S.C. sections 300h-1, for primacy for Class VI injection wells, except those located on Indian lands. This action is based on a legal and technical review of the state of North Dakota's application as directed in the Code of Federal Regulations (CFR) at 40 CFR part 145. As a result of this review, EPA is proposing that the state of North Dakota's application meets all applicable requirements for approval under SDWA section 1422, and the state is capable of administering a Class VI UIC program in a manner consistent with the terms and purposes of SDWA and all applicable regulations.
        II. Legal Authorities
        These regulations are being promulgated under authority of SDWA sections 1422 and 1450, 42 U.S.C. 300h-1 and 300j-9.
        Requirements for State UIC Programs
        SDWA Section 1421 requires the Administrator of the EPA to promulgate minimum requirements for effective state UIC programs to prevent underground injection activities that endanger underground sources of drinking water (USDWs). SDWA Section 1422 establishes requirements for states seeking EPA approval of state UIC programs.

        For states that seek approval for UIC programs under SDWA section 1422, the EPA has promulgated a regulation setting forth the applicable procedures and substantive requirements, codified in 40 CFR part 145. It includes requirements for state permitting programs (by reference to certain provisions of 40 CFR parts 124 and 144), compliance evaluation programs, enforcement authority, and information sharing.
        III. North Dakota's Application
        A. Background

        On June 21, 2013, the state of North Dakota submitted a program revision application to add Class VI injection wells to its SDWA section 1422 UIC program. The EPA reviewed the application and published a Federal Register document of North Dakota's Underground Injection Control Program Revision Application on August 9, 2013 (78 FR 48639), which sought public comments and provided an opportunity to request a public hearing. Public notice of North Dakota's application was also published in the Bismarck Tribune on August 9, 2013.
        B. Public Participation Activities Conducted by the State of North Dakota
        The state of North Dakota held two public hearings with public comment periods on the state's intent to adopt its Class VI UIC regulations. The first public hearing was held on April 24, 2012, and the public comment period closed on June 8, 2012. The second public hearing was held on October 22, 2012, and the public comment period closed on November 1, 2012. Both public hearings were held in Bismarck, North Dakota, and no public comments were received during the two public comment periods.
        C. Public Participation Activities Conducted by the EPA

        On August 9, 2013, a document announcing North Dakota's Underground Injection Control Program Revision was published in the Federal Register (78 FR 48639) and in the Bismarck Tribune. This document provided that a public hearing would be held if requested. The agency did not receive any requests for a public hearing and received five written comments. Two comments were outside the scope of the state's application and three comments were focused on the Memorandum of Agreement between Region 8 and the North Dakota Industrial Commission. The EPA worked with the Commission to address these comments and revise the Memorandum of Agreement.
        IV. EPA's Proposed Action
        In this action, the EPA is proposing that the state of North Dakota's Class VI UIC program will assume primary enforcement authority (primacy) for regulating Class VI injection wells in the state, except for those located on Indian lands. Support of this action is part of the public record in EPA's Docket No. EPA-HQ-OW-2013-0280. When finalized, this action will amend 40 CFR part 147 and incorporate by reference the EPA-approved state statutes and regulations. The EPA will continue to administer its UIC program for Class I, II, III, IV, V and VI injection wells on Indian lands.
        The provisions of the state of North Dakota's Code that contain standards, requirements, and procedures applicable to owners or operators of Class VI UIC wells will be incorporated by reference into 40 CFR 147.1751. Provisions of the state of North Dakota's Code that contain standards, requirements, and procedures applicable to owners or operators of Class I, III, IV and V injection wells have already been incorporated by reference into 40 CFR 147.1751. Any provisions incorporated by reference, as well as all permit conditions or permit denials issued pursuant to such provisions, will be enforceable by the EPA pursuant to SDWA section 1423 and 40 CFR 147.1(e).

        In order to better serve the public, the EPA is reformatting the codification of the EPA-approved North Dakota SDWA section 1422 Underground Injection Control Program Statutes and Regulations for Well Classes I, III, IV, V and VI. Instead of codifying the North Dakota Statutes and Regulations as separate paragraphs, the EPA is now codifying a binder that contains the EPA-approved North Dakota Statutes and Regulations for Well Classes I, III, IV, V and VI. This binder will be incorporated by reference into part 147. The EPA has made, and will continue to make, these documents available electronically through http://www.regulations.gov and in hard copy at the appropriate EPA office (see the ADDRESSES section of this preamble for more information).
        The EPA will continue to oversee the state of North Dakota's administration of the SDWA Class VI program. Part of the EPA's oversight responsibility will require quarterly reports of non-compliance and annual UIC performance reports pursuant to 40 CFR144.8. The Memorandum of Agreement between the EPA and the state of North Dakota, signed by the Regional Administrator on October 28, 2013, provides the EPA with the opportunity to review and comment on all permits.
        V. Statutory and Executive Order Reviews
        A. Executive Order 12866: Regulatory Planning and Review and Executive Order 13563: Improving Regulation and Regulatory Review
        This action is not a significant regulatory action and was therefore not submitted to the Office of Management and Budget (OMB) for review.
        B. Paperwork Reduction Act (PRA)
        This action does not impose any new information collection burden under the PRA. OMB has previously approved the information collection activities contained in the existing regulations and has assigned OMB control number 2040-0042. Reporting or record-keeping requirements will be based on the state of North Dakota UIC Regulations, and the state of North Dakota is not subject to the PRA.
        C. Regulatory Flexibility Act (RFA)
        I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. In making this determination, the impact of concern is any significant adverse economic impact on small entities. An agency may certify that a rule will not have a significant economic impact on a substantial number of small entities if the rule relieves regulatory burden, has no net burden or otherwise has a positive economic effect on the small entities subject to the rule. This rule does not impose any requirements on small entities as this rule approves a state program. We have therefore concluded that this action will have no net regulatory burden for all directly regulated small entities.
        D. Unfunded Mandates Reform Act (UMRA)
        This action does not contain any unfunded mandate as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. The action imposes no enforceable duty on any state, local or tribal governments or the private sector. EPA's approval of the state of North Dakota's program will not constitute a federal mandate because there is no requirement that a state establish UIC regulatory programs and because the program is a state, rather than a federal program.
        E. Executive Order 13132: Federalism

        This action does not have federalism implications. It will 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.
        F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments
        This action does not have tribal implications as specified in Executive Order 13175. This action contains no federal mandates for tribal governments and does not impose any enforceable duties on tribal governments. Thus, Executive Order 13175 does not apply to this action.
        G. Executive Order 13045: Protection of Children From Environmental Health & Safety Risks
        The EPA interprets Executive Order 13045 as applying only to those regulatory actions that concern environmental health or safety risks that the EPA has reason to believe may disproportionately affect children, per the definition of “covered regulatory action” in section 2-202 of the Executive Order. This action is not subject to Executive Order 13045 because it approves a state program.
        H. Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use
        This action is not subject to Executive Order 13211, because it is not a significant regulatory action under Executive Order 12866.
        I. National Technology Transfer and Advancement Act
        This rulemaking does not involve technical standards.
        J. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations
        The EPA has determined that this action is not subject to Executive Order 12898 (59 FR 7629, February 16, 1994) because it does not establish an environmental health or safety standard. This action will simply provide that the state of North Dakota has primacy under SDWA for the Class VI UIC program, pursuant to which the state of North Dakota will be implementing and enforcing a state regulatory program that is as stringent as the existing federal program.

          List of Subjects in 40 CFR Part 147
          Environmental protection, Incorporation by reference, Indian-lands, Intergovernmental relations, Reporting and record-keeping requirements, Water supply.

          Dated: May 8, 2017.
          E. Scott Pruitt,
          Administrator.

        For the reasons set out in the preamble, Title 40 chapter 1 of the Code of Federal Regulations is proposed to be amended as follows:

          PART 147—STATE, TRIBAL, AND EPA-ADMINISTERED UNDERGROUND INJECTION CONTROL PROGRAMS

        1. The authority citation for part 147 is amended to read as follows:

          Authority:
           42 U.S.C. 300h et seq.; and 42 U.S.C. 6901 et seq.

        2. Amend § 147.1751 by revising the section heading, introductory text and paragraph (a) and adding paragraphs (e) through (h) to read as follows:

          § 147.1751
          State-administered program—Class I, III, IV, V and VI wells.

          The UIC program for Class I, III, IV, and V wells in the state of North Dakota, except those located on Indian lands, is the program administered by the North Dakota Department of Health, approved by EPA pursuant to SDWA section 1422. Notice of this approval was published in the Federal Register on September 21, 1984; the effective date of this program is October 5, 1984. The UIC Program for Class VI wells in the state of North Dakota, except those located on Indian lands, is the program administered by the North Dakota Industrial Commission, approved by the EPA pursuant to SDWA section 1422. Notice of this approval was published in the Federal Register on [DATE OF PUBLICATION OF THE FINAL RULE IN THE Federal Register]; the effective date of this program is [DATE 90 DAYS AFTER DATE OF PUBLICATION OF THE FINAL RULE IN THE Federal Register]. This program consists of the following elements, as submitted to the EPA in the state's program revision application.

        (a) Incorporation by reference. The requirements set forth in the state statutes and regulations cited in the binder entitled “EPA-Approved North Dakota SDWA § 1422 Underground Injection Control Program Statutes and Regulations for Well Classes I, III, IV, V and VI”, dated December 2013, and Table 1 to paragraph (a) of this section are hereby incorporated by reference and made a part of the applicable UIC program under SDWA for the state of North Dakota. The Director of the Federal Register approves this incorporation by reference in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. Copies of the North Dakota regulations that are incorporated by reference in paragraph (a) of this section may be inspected at the U.S. Environmental Protection Agency, Region 8, Library 2nd Floor, 1595 Wynkoop Street, Denver, Colorado 80202; Water Docket, EPA Docket Center (EPA/DC) EPA West, Room 3334, 1301 Constitution Ave. NW., Washington, DC 20460; and the National Archives and Records Administration (NARA). If you wish to obtain materials from the EPA Regional Office, please call (303) 312-1226; for materials from a docket in the EPA Headquarters Library, please call the Water Docket at (202) 566-2426. For information on the availability of this material at NARA, call (202) 741-6030, or go to http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html.

          Table 1 to Paragraph (a) EPA-Approved North Dakota SDWA § 1422 Underground Injection Control Program Statutes and Regulations for Well Classes I, III, IV, V and VI

            State citation
            Title/subject
            State effective date
            EPA approval date 1

            North Dakota Century Code Sections 38-12-01—38-12-03
            Regulation, Development and Production of Subsurface Minerals
            1980
            September 21, 1984, 49 FR 37066.

            North Dakota Century Code Sections 61-28-02 and 61-28-06
            Control, Prevention and Abatement of Pollution of Surface Waters
            1989
            March 6, 1991, 56 FR 9418.

            North Dakota Administrative Code Sections 33-25-01-01—33-25-01-18
            Underground Injection Control Program
            1983
            September 21, 1984, 49 FR 37066.

            North Dakota Administrative Code Sections 43-02-02-01—43-02-02-50
            Subsurface Mineral Exploration and Development
            1986
            March 6, 1991, 56 FR 9418.

            North Dakota Administrative Code Sections 43-02-02.1-01—43-02-02.2-19
            Underground Injection Control Program
            1984
            September 21, 1984, 49 FR 37066.

            North Dakota Century Code Sections 38-22-01—38-22-23
            Carbon Dioxide Underground Storage
            2009
            [Insert new FR date and #].

            North Dakota Administrative Code Sections 38-08-16—38-08-17
            Control of Oil and Gas Resources
            2013
            [Insert new FR date and #].

            North Dakota Administrative Code Sections 43-05-01-01—43-05-01-20
            Geologic Storage of Carbon Dioxide
            2013
            [Insert new FR date and #].

            1 In order to determine the EPA effective date for a specific provision listed in this table, consult the Federal Register notice cited in this column for the particular provision.

        (e) The Memorandum of Agreement between EPA Region VIII and the North Dakota Industrial Commission, signed by the EPA Regional Administrator on October 28, 2013.
        (f) The Memorandum of Understanding between the North Dakota Industrial Commission, Department of Mineral Resources, Oil and Gas Division and the North Dakota Department of Health, Water Quality Division, Related to the Underground Injection Control Program signed on June 19, 2013.
        (g) Statement of Legal Authority: “Class VI Underground Injection Control Program, Attorney General's Statement,” signed by the Attorney General of North Dakota on January 22, 2013.
        (h) The Class VI Program Description and any other materials submitted as part of the program revision or as supplements thereto.

      [FR Doc. 2017-10001 Filed 5-18-17; 8:45 am]
       BILLING CODE 6560-50-P


        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Part 600
        [I.D. 050901C]
        Magnuson-Stevens Act Provisions; General Provisions for Domestic Fisheries; Application for Exempted Fishing Permits (EFPs)

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

          ACTION:
          Notification of a proposal for EFPs to conduct  experimental fishing; request for comments.

          SUMMARY:
          NMFS announces that the Administrator, Northeast Region, NMFS (Regional Administrator), has made a preliminary determination that the subject exempted fishing permit (EFP) application contains all the required information and warrants further consideration.  The Regional Administrator has also made a preliminary determination that the activities authorized under the EFP would be consistent with the goals and objectives of the Northeast Multispecies Fishery Management Plan (FMP) and within the scope of earlier analyses of the impacts.  However, further review and consultation may be necessary before a final determination is made to issue an EFP.  Therefore, NMFS announces that the Regional Administrator intends to issue an EFP that would allow one federally permitted groundfish vessel to conduct a composite mesh selectivity study with codend covers having a mesh size smaller than authorized under current regulations to target mixed-groundfish species, primarily yellowtail flounder, winter flounder (blackback), summer flounder (fluke), American plaice (dab) and Atlantic cod.  The EFP may also allow access to seasonal area closures in the Gulf of Maine (GOM). The Manomet Center for Conservation Sciences (Manomet) submitted an EFP application to determine the selective efficiency of experimental codends and intends to correlate fish behavior with these findings.  Regulations under the Magnuson-Stevens Fishery Conservation and Management Act require publication of this notification to provide interested parties the opportunity to comment on applications for proposed EFPs.

          DATES:
          Comments on this document  must be received on or before June 6, 2001.

          ADDRESSES:
          Written comments should be sent to Patricia Kurkul, Regional Administrator, NMFS, Northeast Regional Office, 1 Blackburn Drive, Gloucester, MA 01930.  Mark the outside of the envelope “Comments on EFP Proposal”.  Comments may also be sent via facsimile (fax) to (978) 281-9135.

          FOR FURTHER INFORMATION CONTACT:
          Allison Ferreira, Fishery Management Specialist, 978-281-9103.

        SUPPLEMENTARY INFORMATION:
        Manomet submitted an industry cooperative proposal on April 20, 2001, for one EFP to conduct a composite codend mesh selectivity study to address bycatch and discard of incidental catch and sublegal sized fish in the mixed-groundfish fisheries of the Northeast.  The study would be conducted in that portion of the GOM/Georges Bank Regulated Mesh Area extending east from the New Hampshire shoreline at 43° N. lat./70.75° W. long. to 43° N. lat./69° W. long., then following the 69° W. long. line north to the 44° N. lat./69° W. long. point, and then extending west along the 44° N. lat. to the Maine coastline (44° N. lat./69.154° W. long).  The permanent Western GOM closure would not be included in the study area.   ÿ09

        This industry collaborative study involves Manomet, the Massachusetts Division of Marine Fisheries, and the Maine Department of Marine Resources as co-principal investigators, and proposes to field test two composite mesh combinations against two industry-standard codend mesh sizes as follows: (1) Two composite codends, one made of 6.5-inch (16.51-cm) square mesh on the top half and 6.5-inch (16.51-cm) diamond mesh on the bottom half, and the other made of 6.5-inch (16.51-cm) square mesh on the top half and 6-inch (15.24-cm) diamond mesh on the bottom half; and (2) two industry-standard codends, one made entirely of 6-inch (15.24-cm) diamond mesh and one made entirely of 6.5-inch (16.51-cm) square mesh. ÿ09
        The purpose of the study is to obtain information on the selective efficiency of the four codend configurations.  To obtain this information, the length frequency of the population sampled, as well as that of the population retained by each codend type, need to be known.  To accomplish this, a 1 7/8-inch (4.78-cm) codend would be used to cover each of the four test codends in order to retain for analysis fish that pass through the larger-mesh codends.   ÿ09
        The catch data for each sample (tow) would be used to prepare species-specific mesh selectivity curves.  That is, the research would determine the size of each fish species retained by each of the codends tested versus the fish that are excluded by the codends.  Data would be pooled for each of the codends tested and the selective efficiency of each codend would be determined for each important target species.  Manomet would also collect behavioral information on the reactions and escape responses of key species to fishing gear by means of underwater video recording during fishing operations. ÿ09
        The field trials would begin on or about June 1, 2001, and continue for up to 6 months in order to allow sufficient time to undertake the experimental work under optimum conditions (i.e., good weather or times of high fish concentration).  The applicant anticipates that no more than 10 tows per codend type would be required, for a maximum of 40 tows.  These commercial gear trials would operate in the designated study area outside the Western GOM Year Round Closure Area.  However, the principal investigator may decide that access to the GOM seasonal closure areas is needed, if efforts to obtain the necessary fish samples outside of these areas are unsuccessful.  Should access to these areas be necessary, the GOM seasonal closures that may correspond in time and location with the proposed study area are as follows:  Rolling Closure Area IV (June 1 to June 30), the Cashes Ledge Closure Area (July 1 to October 31), Rolling Closure Area V (October 1 to November 30), and possibly the Cashes Ledge Conditional Closure Area (November 1 to November 30).  ÿ09
        The experimental sampling design (use of double codend) is intended to minimize the number of tows required to yield the necessary amount of catch information.  It is estimated that a minimum of 10 tows (1 hour in length) per codend are required to produce satisfactory selectivity curve results.  The target species are yellowtail flounder, winter flounder (blackback), summer flounder (fluke), American plaice (dab) and Atlantic cod.  The main incidental species are expected to be skates, smooth and spiny dogfish, sculpin, sea raven and sea robin.  During the course of the experimental fishery, the participating vessel would be instructed to conduct normal fishing operations.  Therefore, the vessel could only retain fish for commercial sale in the amount allowed under its Federal fisheries permits and Days-at-Sea allocations.  The catch would be separated into those fish retained inside the codend and those captured in the codend cover.  All fish would be measured and weighed by NMFS-certified observers, and all sub-legal fish would be returned to the sea immediately after processing.  No undersized fish would be retained on board the vessel.  All data would be entered into NMFS logbooks and submitted to NMFS at the completion of the program.  In addition, videotape recordings of fish behavior would continue throughout the gear trials.       ÿ09
        One EFP would be issued to a federally permitted Northeast multispecies vessel to exempt it from the gear restrictions and, if necessary, the GOM seasonal closure areas of the FMP..

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

          Dated: May 15, 2001.
          Bruce C. Morehead,
          Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service.

      [FR Doc. 01-12871 Filed 5-21-01; 8:45 am]
      BILLING CODE  3510-22-S


        DEPARTMENT OF TRANSPORTATION
        National Highway Traffic Safety Administration
        49 CFR Part 572
        [Docket No. NHTSA 2002-11838]
        RIN 2127-AI39
        Anthropomorphic Test Devices; Instrumented Lower Legs for Hybrid III-50M and -5F Dummies

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

          ACTION:
          Advance notice of proposed rulemaking.

          SUMMARY:
          The agency is concerned about the number and severity of lower limb injuries in full- and offset-frontal vehicle crashes and the pain and suffering, disability, long-term impairment, and high rehabilitation costs frequently associated with such injuries. The agency believes that there is considerable merit in utilizing crash test dummies with instrumented lower legs in vehicle crash tests to either assess the risk of occupant injury or mitigate either the number or severity of these injuries. This document requests comments on two potential devices for assessing the injury potential to lower limbs in full- and offset-frontal vehicle collisions. Under consideration are two types of instrumented lower legs that can be retrofitted to the Hybrid III 50th percentile male and 5th percentile female dummies.

          DATES:
          You should submit your comments early enough to ensure that Docket Management receives them not later than August 5, 2002.

          ADDRESSES:

          Comments should refer to the docket number above and be submitted to: Docket Section, National Highway Traffic Safety Administration, 400 Seventh Street, SW., Washington, DC 20590. Alternatively, you may submit your comments electronically by logging onto the Docket Management System (DMS) Web site athttp://dms.dot.gov.Click on “Help & Information” or “Help/Info” to view instructions for filing your comments electronically. Regardless of how you submit your comments, you should mention the docket number of this document.
          You may call the Docket at 202-366-9324. Docket hours are 9:30 a.m. to 4 p.m., Monday through Friday.

          FOR FURTHER INFORMATION CONTACT:
          For non-legal issues, Mr. Stanley Backaitis, Office of Crashworthiness Standards (Telephone: 202-366-4912) (Fax: 202-493-4329). For legal issues, Mr. Robert Knop, Office of the Chief Counsel (Telephone: 202-366-2992) (Fax: 202-366-3820). Both can be reached by mail at the National Highway Traffic Safety Administration, 400 Seventh Street, SW., Washington, DC 20590.

        SUPPLEMENTARY INFORMATION:
        Background

        NHTSA is concerned about the number of lower limb injuries in full- and offset-frontal vehicle crashes and the pain and suffering, disability, long-term impairment, and high rehabilitation costs frequently associated with such injuries. A number of research studies have shown that knee-tibia-ankle-foot (KsTAF) injuries incurred in full- and offset-frontal automobile crashes frequently result insevere disability and impairment.1
          Though they present a less serious threat to life than head or chest injuries, these injuries are still responsible for a large part of the total vehicle crash-related suffering, impairment, and injury costs. An analysis of data from the Wisconsin Crash Outcome Data Evaluation System (CODES) project, for example, found that one in six occupants hospitalized after a crash had serious lower limb injuries.2

            1The tibia is the inner and larger of the two bones connecting the knee to the ankle.

            2Karlson, Trudy; Bigelow, Wayne; Beutel, Patricia, “Serious Lower Extremity Injuries from Motor Vehicle Crashes, Wisconsin, 1991-1994,” DOT Technical Report No. DOT HS 808 791, September 1998.

        The agency estimates that annually approximately 110,000 occupants sustain lower limb injuries with a severity rating of 2 or 3 on the Abbreviated Injury Scale (AIS).3
          Slightly less than half of these injuries occur below the knee and, of those, ankle and foot injuries are the most frequent and responsible for long-term impairment.4
          Female drivers have been found to be at a greater risk of sustaining lower extremity injuries than male drivers in two separate studies.5
          The annual cost of AIS 2 and 3 lower extremity injuries to passenger car occupants in all automotive crashes has been estimated to run as high as $21.5 billion.6

            3National Automotive Sampling System—Crashworthiness Data System, 1994-1996, U.S. Department of Transportation, National Highway Traffic Safety Administration.

            4Morgan, R., et al., “Ankle Joint Injury Mechanism for Adults in Frontal Automotive Impact,” Proceedings of the 35th Stapp Conference, 1991, and Kuppa, S., et al., “Lower Extremity Injuries and Associated Injury Criteria,” Seventeenth International Technical Conference on the Enhanced Safety of Vehicles, Amsterdam, June, 2001.

            5Crandall, et al., “Biomechanical Response and Physical Properties of the Leg, Foot, and Ankle,” Paper No. 962424, Proceedings of the 40th Stapp Conference, Albuquerque, N.M., November 1996; and Karlson, Trudy; Bigelow, Wayne; Beutel, Patricia, “Serious Lower Extremity Injuries from Motor Vehicle Crashes, Wisconsin, 1991-1994,” DOT Technical Report No. DOT HS 808 791, September 1998.

            6Miller, T., “Societal Costs of Transportation Crashes,” from The Full Costs and Benefits of Transportation, Edited by Greene, D., Jone, D., Delucchi, M., Springer-Verlag, 1997 and National Automotive Sampling System—Crashworthiness Data System, 1994-1996, U.S. Department of Transportation, National Highway Traffic Safety Administration.

        Until now, the agency has primarily focused its research and safety standard rulemaking on developing and implementing methods, procedures, and test tools designed to reduce crash-related injuries to the head, neck, and torso because such injuries are the ones most likely to result in fatalities. Currently, the only specified injury limits for the lower extremities in Standard No. 208 are those for the knee-thigh-hip complex. Federal Motor Vehicle Safety Standard No. 208 limits the axial force measured in the femur to 2250 pounds (10 kN) for the 50th percentile adult male Hybrid III dummy and 1530 pounds (6805 N) for the 5th percentile adult female Hybrid III dummy to minimize knee-thigh-hip injuries. Knee-thigh-hip complex injuries account for about 55 percent of AIS 2+ lower extremity injuries and 42 percent of the associated functional Life-years Lost to Injury.7
          The remaining 45 percent of AIS 2+ lower extremity injuries (and 58 percent of the associated functional Life-years Lost to Injury) occur below the knee and are not currently addressed by our Standards.

            7Kuppa, S., et al., “Lower Extremity Injuries and Associated Injury Criteria,” Paper No. 98-57-070, 17th ESV Conference, Windsor, Ontario, Canada, 1998.

        Now that safety improvements such as air bags and better vehicle crashworthiness are being implemented to achieve significant fatality reductions, the agency can begin to focus on reducing non-fatal high consequence injuries, like those to the lower extremities. The agency believes that significant reductions in lower extremity injuries below the knees and in the associated costs may be achieved if vehicle structures and interior environments are designed to minimize the forces exerted on lower extremities in vehicle crashes. A necessary first step in developing safer vehicle structures and interiors, however, is the availability of adequate tools to measure forces exerted on the lower extremities in vehicle crash tests. The agency believes that dummy legs currently incorporated into the standards do not provide any measurements of crash loads applied to the lower extremities below the knee in either full-frontal or offset-frontal crash tests.
        The agency believes there would be considerable merit in utilizing instrumented lower legs in vehicle crash tests to assess the risk of occupant injury. Before the agency does this, however, it wishes first to explore the issue of what degree of leg instrumentation and design sophistication is needed to adequately and appropriately assess the risk of injury and develop more friendly vehicle interiors.
        Two commercially available technologies exist for addressing lower leg injuries in frontally-oriented impacts: (1) The Hybrid III/Denton (HIII/Denton) instrumented leg and (2) the more recently designed Thor-Lx Hybrid III Retrofit (Thor-(F)Lx/HIIIr) leg. Both of these instrumented lower legs have been designed to fit the existing 50th percentile male and 5th percentile female Hybrid III dummies. While the Denton leg has been used over a number of years by the automotive industry for vehicle development, the newer Thor leg, with substantially improved ankle and tibia biofidelity and a broader set of instruments, has been evaluated at the research level by a more limited number of vehicle manufacturers and research laboratories. After assessing received comments and our own data, the agency intends to incorporate only one of these two available lower leg designs into part 572, subpart E (50th percentile male Hybrid III test dummy) and subpart O (5th percentile female Hybrid III test dummy). To facilitate a more in-depth understanding of the issues and technical details that the agency is addressing in this Advance Notice of Proposed Rulemaking, the agency is concurrently placing a comprehensive technical support document (hereinafter “Technical Report”) in the docket.8

            8Docket No. NHTSA 2002-11838.

        HIII/Denton Instrumented Leg
        Both the HIII/Denton-50M and the HIII/Denton-5F instrumented leg designs consist of an instrumented tibia that fits into the existing leg of the dummy, fastening between the knee slider assembly and the ankle. The instrumented tibia contains a clevis at the knee that can be instrumented to measure the compressive load on each side of the tibia, an upper tibia load cell, a tibia tube, and a lower tibia load cell. The load cells are each capable of measuring up to five channels of data.
        The HIII/Denton instrumented legs employ the existing knee slider, knee housing, knee flesh, and knee insert used on the current Hybrid III 50th percentile male and 5th percentile female dummies. The knee slider assembly can be instrumented with a linear potentiometer to measure tibia-femur displacement. An optional ball bearing version knee slider is also available that is less influenced by compressive tibia loads.
        The ankle and foot assemblies are also unchanged from the standard Hybrid III 50th percentile male and 5th percentile female dummies. The ankle assembly consists of a ball and socket joint with an adjustable frictional resistance level. The level of frictional resistance is controlled by a set screw at the ankle ball that can be tightened to increase the ankle's resistance to motion. The ankle joint is typically set at a “1G9

          suspended” setting. To assess the rotation of the foot relative to the ankle, the foot can be instrumented with accelerometers, two at the ankle and one at the toe.

            9“1G” denotes one times the force of gravity.

        To summarize, the HIII/Denton instrumented leg has the following measurement capabilities:

        • Upper tibia forces and moments (Fx, Fy, Fz, Mx, My)10
          (Load cell drawing PSA 572-S30)

            10The following directional designations are used throughout this document: “x” denotes the fore-aft direction; “y” denotes the left-right direction; and “z” denotes the up-down direction.

        • Lower tibia forces and moments (Fx, Fy, Fz, Mx, My) (Load cell drawing PSA 572-S31)
        • Knee clevis11
          loads (Fz left and right portions of the clevis) (optional)

            11A clevis is a single-axis, u-shaped joint allowing angular, flexion-type motion between two joined parts.

        • Biaxial accelerations near the ankle (Ax, Az) (optional)
        • Uniaxial acceleration near the toe (Az) (optional)
        • Knee shear displacement

        Mechanical drawings of the HIII/Denton legs designed for the 50th percentile male and 5th percentile female Hybrid III dummies are available through Denton ATD, Inc. NHTSA will also make these drawings available to the public without proprietary claims when the final rule is issued, should the agency decide to incorporate the HIII/Denton lower leg assemblies in part 572, subparts E and O.
        Cost of HIII/Denton Instrumented Leg
        The costs associated with specifying the use of HIII/Denton lower legs in vehicle crash tests may be broken down as follows: (1) The cost of the legs themselves; and (2) the data acquisition costs (per test). NHTSA estimates the procurement cost to be approximately $32,500 per pair for both the 50th percentile male and 5th percentile female dummies. The agency believes that most, if not all, vehicle manufacturers have already acquired these legs. Accordingly, if the agency were to specify the use of the instrumented Denton lower legs in vehicle crash testing, the costs associated with acquiring the legs would be minimal. With respect to the data acquisition costs, the agency estimates that each test utilizing the Denton lower legs would cost approximately $2,200 per dummy per crash test, assuming use of the upper and lower tibia load cells and knee shear displacement data channels.
        Thor-Lx/HIIIr and Thor-Flx/HIIIr Instrumented Legs
        Like the HIII/Denton instrumented lower legs, the Thor-(F)Lx/HIIIr instrumented lower leg assemblies are designed to fit the 50th percentile male Hybrid III dummy (the Thor-Lx/HIIIr) and the 5th percentile female Hybrid III dummy (the Thor-FLx/HIIIr). The Thor lower leg assemblies incorporate the features of the lower extremities from the Thor dummy. The legs were developed by two NHTSA contractors: General Engineering and Systems Analysis Company and Applied Safety Technologies Corporation (now Denton ATD, Inc.).
        Thor-Lx/HIIIr Assembly
        The Thor-Lx/HIIIr assembly mounts directly to the distal end of the 50th percentile male Hybrid III femur. The Thor-Lx/HIIIr assembly is comprised of the Thor-Lx foot and ankle segments, the Thor-Lx tibia segment (with integrated Achilles tendon assembly), the standard Hybrid III knee housing, a modified Hybrid III knee flesh, new molded side knee covers, and the Hybrid III ball bearing knee slider assembly as an option.
        The Thor-Lx/HIIIr assembly includes the following new hardware elements as compared to the existing Hybrid III leg design:

        • Side-mounted knee covers, which augment the existing narrow Hybrid III knee housing profile, to improve the realism of knee interaction with vehicle knee bolsters;
        • A compliant tibia element, which modulates tibia response to axial impact to more realistically reflect human response data;
        • Provision for independent control of foot mobility about three axes of rotation (dorsiflexion/plantarflexion, inversion/eversion, and internal/external rotation12
          ) by means of progressive rubber elements whose characteristics are based upon human data;

            12Dorsiflexion/plantarflexion rotation is foot motion about the ankle's lateral axis. Inversion/eversion rotation is foot motion about the ankle's for- and aft-axis. Internal/external rotation is foot motion about the tibia's longitudinal axis.

        • A representation of the Achilles tendon load path, which contributes to improved realism of tibia axial forces, tibia bending moments, and dorsiflexion motion of the foot.

        The Thor-Lx/HIIIr assembly includes the following instrumentation:

        • Upper tibia forces and moments (Fx, Fz, Mx, My) (Load cell drawing PSA 572-S32)
        • Lower tibia forces and moments (Fx, Fy, Fz, Mx, My) (Load cell drawing PSA 572-S33)
        • Tibia accelerations at mid-shaft (Ax, Ay) (optional)
        • Foot angular displacement about 3 axes
        • Mid-foot accelerations (3 axes) (optional)
        • Achilles tendon tension (uniaxial) (optional)
        • Knee shear displacement

        Comprehensive mechanical drawings for the Thor-Lx/HIIIr, together with the associated users' manual and proposed certification procedures are available on NHTSA's Web site at the following web address:http://www-nrd.nhtsa.dot.gov/departments/nrd-51/thor_lx/thorlxweb.html.

        Thor-FLx/HIIIr Assembly
        The Thor-FLx/HIIIr assembly, which is mounted directly to the distal end of the 5th percentile female Hybrid III femur, is nearly identical to the Thor-Lx/HIIIr. Given the inherent space constraints of the Thor-FLx/HIIIr relative to the Thor-Lx/HIIIr, however, two primary design differences were necessary. First, the 5th percentile female Thor-FLx/HIIIr assembly has a shaped-cam ankle design that is different from that of the 50th percentile male Thor-Lx/HIIIr. Second, the Thor-FLx/HIIIr contains two custom-made hardware elements that are not used on the Thor-Lx/HIIIr: a four-axis upper tibia load cell (drawing PSA 572-S34) and a five-axis lower tibia load cell (drawing PSA 572-S35). These load cells are lighter and smaller than the tibia load cells used on the Thor-Lx/HIIIr, enabling a better fit with the smaller diameter of the Thor-FLx/HIIIr tibia.

        Comprehensive mechanical drawings for the Thor-FLx/HIIIr, together with the associated users' manual and proposed certification procedures are available on NHTSA's Web site at the following web address:http://www-nrd.nhtsa.dot.gov/departments/nrd-51/thor_flx/ThorFLxweb.html.

        Cost of Thor Instrumented Leg

        The costs associated with specifying the use of Thor-Lx or Thor-FLx/HIIIr lower legs in vehicle crash tests may be broken down as follows: (1) The cost of the legs themselves; and (2) the data acquisition costs (per crash test). NHTSA estimates the procurement cost to be approximately $52,600 per pair for both the 50th percentile male and 5th percentile female dummies. Because the agency does not believe that many vehicle manufacturers already have acquired these legs, it is reasonable toassume that many, if not most, vehicle manufacturers would need to purchase them. With respect to the data acquisition costs, the agency estimates that each test utilizing the Thor-Lx/Thor-FLx lower legs would cost approximately $2,600 per dummy per crash test, assuming use of the upper and lower load cells, knee shear displacement, and ankle rotation data channels.
        Performance of Instrumented Lower Leg Assemblies
        The agency has conducted a series of static and dynamic laboratory and vehicle crash tests to evaluate the performance of the HIII/Denton-50M, HIII/Denton-5F, Thor-Lx/HIIIr, and Thor-FLx/HIIIr. These tests allow a direct comparison between the HIII/Denton-50M and the Thor-Lx/HIIIr and between the HIII/Denton-5F and the Thor-FLx/HIIIr. In laboratory tests, the Thor-Lx/HIIIr and the Thor-FLx/HIIIr exhibit more biofidelic, or human-like, responses than the HIII/Denton-50M and the HIII/Denton-5F. The significance of this difference in biofidelity and the need for design sophistication to predict the risk of injury are the most important issues that the agency hopes to resolve with comments from end users and others.
        Laboratory Tests
        The agency conducted the following laboratory calibration type tests and sled tests to evaluate the performance of the Denton and Thor lower leg assemblies per procedures set forth in Sections 3 and 4 of the Technical Report: (1) A quasi-static ankle motion test; (2) two pendulum impact tests (one on the ball of the foot and the other on the heel of the foot); and (3) a series of eight sled tests.
        Quasi-Static Ankle Motion Tests
        In the quasi-static ankle motion test, the tibia of the instrumented leg is held rigidly while the foot is rotated in four directions (dorsiflexion, plantarflexion, inversion, and eversion). This test was performed on two HIII/Denton-50 legs, four Thor-Lx/HIIIr legs, two HIII/Denton-5F legs, and four Thor-FLx/HIIIr legs. Each ankle was tested four times under identical test conditions, yielding a mean value for each of the four directions. Both the Denton and the Thor legs exhibited repeatable performance. The mean response values were plotted on a graph and compared to the biofidelic specifications for each directional test as shown in Figures 3-1 through 3-8 of the Technical Report. The results indicate that the Thor-Lx/HIIIr and Thor-FLx/HIIIr exhibit a response that is closer to biofidelic specifications than the HIII/Denton-50M and HIII/Denton-5F. Additional details regarding the test procedures and test results may be found in Section 3 and Appendix 3 of the Technical Report.
        Pendulum Impact Tests
        Two different pendulum impact test series were conducted on both leg designs. The first test, the ball of foot impact test, examined the dynamic dorsiflexion response of the ankle assembly. The second test, the heel of foot impact test, examined the compliance of the foot flesh and tibia. These tests were performed on two HIII/Denton-50 legs, four Thor-Lx/HIIIr legs, two HIII/Denton-5F legs, and four Thor-FLx/HIIIr legs. Each lower leg assembly was tested four times under identical test conditions. In these pendulum impact tests, both the Denton and Thor lower leg assemblies exhibited repeatable performance and no structural issues were noted. A full description of the test procedures and test results may be found in Section 3.2 and Appendix 3 of the Technical Report.
        Sled Tests
        A series of eight sled tests were conducted by the University of Virginia to evaluate the performance of the Thor lower leg assemblies relative to the Denton lower leg assemblies. Two of the tests, designed to simulate the New Car Assessment Program (NCAP) 56 kilometer per hour full-frontal crash conditions, were conducted using a Ford Taurus floor pan configuration with an intruding toeboard. Six tests, designed to simulate the European Union (EU) 40 percent offset frontal crash test conditions (although at 56 kilometers per hour rather than at 60 kilometers per hour because of concerns about the structural integrity of the sled at 60 kilometers per hour), were conducted using a Dodge Neon floor pan configuration with an intruding toeboard. A full description of the test procedures and test results may be found in Section 4 and Appendix 4 of the Technical Report.
        These tests were designed to determine: (1) The effects of leg design on the peak femur response values; (2) the differences in other lower extremity response values between the two designs; (3) the effects of leg design on the upper body response values; (4) the repeatability of dummy response values; and (5) durability of the leg design. With respect to the effects of leg design on the peak femur response values, the tests revealed a difference in right femur response values between the HIII/Denton-50M and the Thor-Lx/HIIIr. The right femur response values for the HIII/Denton-50M were higher than those of the Thor-Lx/HIIIr. Differences were also noted between other lower extremity response values of the Denton and Thor lower leg assemblies.
        The observed differences, in the judgment of the University of Virginia's researchers, were attributable to differences in the Thor-Lx's anterior geometry and kinematic response due to the Thor-Lx continuous joint stop. Although both the right femur and other lower extremity response values were higher for the Denton lower leg assemblies than the Thor lower leg assemblies, we consider these differences to be relatively insignificant when compared to the much higher injury limit values. As to the upper body response values, the recorded values were very similar for both the Denton and Thor 50th percentile male and 5th percentile female dummies indicating that differences in the designs of the lower legs have minimal influence on the rest of the dummy responses. As to repeatability, in both the full frontal and offset-frontal sled tests, the test-to-test repeatability of the Denton and Thor lower leg assemblies was found to be generally acceptable. Finally, with respect to durability, neither the Denton nor the Thor lower leg assemblies experienced any structural failures in the sled tests.
        Vehicle Crash Tests
        The agency conducted 16 vehicle crash tests allowing assessment of the performance of paired 50th percentile male and 5th percentile female Hybrid III dummies with Denton and Thor-(F)Lx lower leg assemblies. Four vehicle models were used: the 1996 Toyota Camry, the 2000 Nissan Altima, the 1998 Dodge Neon, and the 2000 Subaru Legacy. In these tests, a Hybrid III 50th percentile male or 5th percentile female dummy outfitted with either Denton or Thor instrumented lower legs was seated in the driver's position and the vehicle was crashed into an EU deformable barrier at approximately 60 and 64 kilometers per hour with 40 percent of the vehicle's frontal structure engaging the barrier. A full description of the test procedures and test results may be found in Section 5 and Appendix 5 of the Technical Report.

        Such offset frontal crash tests generally produce significant intrusion of the toepan, thereby allowing for measurement of forces exerted on the lower extremities. Significant differences were noted with respect to the response values of the Thor and Denton lower leg assemblies in thesecrash tests. The response values of the Thor-Lx/HIIIr and Thor-FLx/HIIIr exceeded the foot and ankle preliminary injury limits in the vehicle crash tests, thus predicting a higher potential for foot and ankle injuries than tibia shaft fractures. In addition, the foot and ankle response values of the Thor-FLx/HIIIr were higher than those of the Thor-Lx/HIIIr, thus predicting a higher incidence of foot and ankle injuries in small women than in mid-sized men. The same differences between the female and male versions of the Denton leg could not be observed because it is not equipped to measure ankle rotation. Real-world crash data indicate that ankle and foot injuries are more common than leg shaft fractures and that women are at greater risk of sustaining lower limb injuries than men. Therefore, it appears that the Thor lower leg assemblies are better able to predict the location of lower extremity injuries in real-world crashes than the Denton lower leg assemblies.
        Questions for Public Comment
        The agency believes that lower extremity injuries are a serious and pervasive safety problem. They frequently result in significant pain, disability, and economic cost. The agency believes that these human and economic costs can be significantly reduced by enhancing vehicles' crashworthiness and occupant protection systems.
        In order to evaluate the effectiveness of particular designs in accomplishing this goal, however, the dummies used in vehicle crash tests must be equipped with appropriately instrumented lower limbs that will help predict the severity and extent of lower limb injuries. As noted above, two different leg designs are available for this purpose: the HIII/Denton legs and the Thor-(F)Lx//HIIIr. To aid the agency in determining which of the two leg designs would better facilitate the design and manufacture of occupant compartments that minimize the severity and extent of lower limb injuries, the agency is seeking comments on the following issues:
        Experience With Instrumented Legs
        (1) Please indicate how many years of experience, if any, you have had in using instrumented legs to improve lower leg injury protection and describe that experience.
        (2) Please provide detailed information on any experience you have had in using the following instrumented lower legs:
        a. Thor-Lx legs;
        b. HIII/Denton legs;
        c. Other.
        (3) The lower limb consists of the following component parts: femur, knee, tibia plateau, tibia, ankle, foot, and pelvis as an attachment bone for the femur. Please rate each of these component parts in terms of the relative importance you place on it for injury reduction purposes using a 5 (five) to indicate a high degree of importance and a 0 (zero) to indicate low or no importance. Please also explain the basis for each rating and how the injury risk for that anatomical area is determined.
        (4) Please provide an opinion, based on your experience, whether the availability of highly instrumented tibia, ankle, and foot (TAF) and knees (Ks) would facilitate the development of vehicles capable of reducing lower leg injuries. Please describe the key aspects of your experience that give rise to your opinion.
        (5) In your test experience, did use of either of the instrumented legs influence other crash test measurements, such as those for the head, neck, thorax, etc.?
        Injury Assessment Goals
        (6) What are your vehicle design or performance goals for the minimization of lower limb injuries? Please cite the impact modes, restraint configurations, and collision speeds at which the lower legs tested in your vehicles begin to incur AIS2+ injuries.
        (7) Please provide a list of injury assessment measures that you employ to assure KsTAF protection. Please explain the basis for their selection, including a demonstration of how they correspond to field data.
        (8) What, in your opinion, is the minimum level of (KsTAF) instrumentation needed to allow accurate assessment of potential injuries?
        (9) Please provide the methodology, techniques, and procedures you currently use to identify and assess the KsTAF injuries.

        (10) Please describe fully the test conditions under which you perform KsTAF injury assessment,i.e., static and/or dynamic measurements; component and/or systems tests; crash intensities, directions, mathematical simulations, visual evidence, etc.
        (11) Please provide descriptions of the test tools and instrumentation that you employ for items 9 and 10.
        (12) Please provide typical response samples and test conditions from tibia/ankle/foot measurements that you are using to make injury reduction or injury risk assessments, and state why you think they are important.
        Adequacy of Instrumented Legs To Assess the Injury Potential
        (13) Given that the instrumented HIII/Denton leg only measures the potential for tibia and malleolus fractures and not ankle injuries, if you prefer the HIII/Denton leg, please provide information on how you would address the reduction of ankle and foot injuries.
        (14) The Thor-Lx/HIIIr instrumented tibia is more elastic in axial loading and has a number of other more human-like features than the rigid HIII/Denton tibia. Please indicate which, if any, of those features are critical for your safety work, which would be desirable to have, and which would not be used. Please provide the rationale and reasons for your choices.
        (15) Please provide your views regarding the relative desirability and benefits of the instrumented lower legs having a higher degree of biofidelity and greater injury predicting capability, but more mechanical complexity vs. less biofidelity and less accurate injury protection, but a simpler design.
        (16) Would either or both of the instrumented lower leg designs be adequate for assessing injury risk if used in the full- and offset-frontal crash tests specified in Federal Motor Vehicle Safety Standard No. 208?
        a. If not, what tests, test environments, and impact speeds would you recommend?
        b. If the current leg and foot placement procedures in Federal Motor Vehicle Safety Standard No. 208 are not appropriate for assessing the potential for KsTAF injuries, please recommend procedures that would provide proper assessment.
        (17) Please indicate the extent to which you believe that one or both of the instrumented lower legs are, or may be, useful to address brake pedal and clutch intrusion issues. If you believe that it is or may be useful, please provide details of dummy set-up and associated test procedures.
        (18) Which of the available ankle sensors should be specified for injury assessment purposes and why?
        (19) Which of the available foot sensors should be specified for injury assessment purposes and why?
        Calibration/Certification
        (20) Should the agency specify calibration tests for instrumented lower legs to assure that they work correctly in the vehicle crash environment? Please provide details and a rationale for your recommendation.

        (21) Should certification specifications for the lower limbs be related to injury measurements and risk of injury levels?

        (22) How much overload capacity do you believe the instrumented lower legs should have before they begin to experience structural failures?
        Lead Time Needs
        (23) Please indicate, and justify, your lead time needs to become familiar with and generate the required test data should the agency specify the use of the following instrumented lower legs in FMVSS No. 208 crash testing:
        a. HIII/Denton legs;
        b. Thor-Lx/HIIIr legs;
        c. Other (described in your response to question 2(c) above).
        Costs
        (24) Please provide an itemized estimate of expected additional test costs (equipment, calibration, additional channels) if the agency specified use of the HIII/Denton or Thor(F)Lx-HIIIr legs for:
        a. FMVSS No. 208;
        b. NCAP.
        (25) Will the benefits of measuring and collecting this additional data be worth the additional costs?
        International Harmonization
        (26) Please provide your views on the extent to which international harmonization of the instrumented leg should be a factor in the agency's decision-making process. How should the desire for harmonization be weighed against the overriding factor of safety and against other relevant factors?
        Rulemaking Analyses and Notices
        Executive Order 12866 and DOT Regulatory Policies and Procedures
        This advance notice was not reviewed under Executive Order 12866 and under the Department of Transportation's regulatory policies and procedures.
        This notice primarily addresses the possibility of proposing to amend 49 CFR part 572 by adding design and performance specifications for instrumented lower legs that can be fitted to crash test dummies and used in vehicle crash tests for assessing the injury potential to lower limbs in full- and offset-frontal vehicle collisions. If these amendments are ultimately proposed and adopted as final, they would affect only those businesses that choose to manufacture or test with dummies fitted with those legs. The amendments would not impose any requirements on anyone. The agency is planning to conduct a separate rulemaking proceeding in which the agency would propose to amend the Federal motor vehicle safety standards to specify the use of dummies fitted with these legs in crash testing.
        For these reasons, it does not appear that this rulemaking, which concerns the incorporation of the instrumented lower legs into part 572, would be significant. However, due to the preliminary nature of this document, NHTSA has limited current cost information that might be relevant to any potential changes. Accordingly, NHTSA is unable now to evaluate the economic impacts that this rulemaking might ultimately have.
        NHTSA will reassess this rulemaking in relation to the Executive Order, the DOT Regulatory Policies and Procedures, the Unfunded Mandates Reform Act of 1995 and other requirements for analyzing rulemaking impacts after using the information received in response to this advanced notice to select specific proposed amendments. To that end, the agency solicits comments, information, and data useful in assessing the impacts of making changes to the various requirements discussed in this document.
        Comments
        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 two copies of your comments, including the attachments, to Docket Management at the address given above underADDRESSES.

        You may also submit your comments to the docket electronically by logging onto the Dockets Management System Web site athttp://dms.dot.gov.Click on “Help & Information” or “Help/Info” to obtain instructions for filing the document electronically.
        How Can I Be Sure That My Comments Were Received?
        If you wish Docket Management to notify you upon its receipt of your comments, enclose a self-addressed, stamped postcard in the envelope containing your comments. Upon receiving your comments, Docket Management will return the postcard by mail.
        How Do I Submit Confidential Business Information?

        If you wish to submit any information under a claim of confidentiality, you should submit three copies of your complete submission, including the information you claim to be confidential business information, to the Chief Counsel, NHTSA, at the address given above underFOR FURTHER INFORMATION CONTACT.In addition, you should submit two copies, from which you have deleted the claimed confidential business information, to Docket Management at the address given above underADDRESSES.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 Docket Management receives before the close of business on the comment closing date indicated above underDATES.To the extent possible, we will also consider comments that Docket Management receives after that date. If Docket Management receives a comment too late for us to consider it in developing a proposal (assuming that one is issued), we will consider that comment together with the comments on the proposal.
        How Can I Read the Comments Submitted by Other People?

        You may read the comments received by Docket Management at the address given above underADDRESSES.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, take the following steps:

        1. Go to the Docket Management System (DMS) Web page of the Department of Transportation(http://dms.dot.gov/).

        2. On that page, click on “search.”
        3. On the next page(http://dms.dot.gov/search/),type in the four-digit docket number shown at the beginning of this document. Example: If the docket number were “NHTSA-1998-1234”, you would type “1234”. After typing the docket number, click on “search”.

        4. On the next page, which contains docket summary information for the docket you selected, click on the desired comments. You may download the comments. Although the comments areimaged documents, instead of word processing documents, the “pdf” versions of the documents are word searchable.
        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.

          Issued: April 30, 2002.
          Stephen R. Kratzke,
          Associate Administrator for Safety Performance Standards.

      [FR Doc. 02-11050 Filed 5-2-02; 8:45 am]
      BILLING CODE 4910-59-P


        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Part 679
        [Docket No. 070718366-7372-01]
        RIN 0648-AV32
        Fisheries of the Exclusive Economic Zone off Alaska; Maximum Retainable Amounts for Non-American Fisheries Act Trawl Catcher/Processors

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

          ACTION:
           Proposed rule; withdrawal.

          SUMMARY:
           NMFS withdraws the proposed rule to revise accounting regulations for maximum retainable amounts of selected groundfish species caught by trawl catcher/processors that are not eligible under the American Fisheries Act to participate in directed fishing for pollock (February 13, 2009). Thus, the current maximum retainable amounts accounting regulations remain in effect for the following species: yellowfin sole, rock sole, flathead sole, “other flatfish,” arrowtooth flounder, Pacific cod, and Atka mackerel in the Bering Sea and Aleutian Islands management area and for Pacific ocean perch in the Aleutian Islands.

          FOR FURTHER INFORMATION CONTACT:
          Jeff Hartman, 907-586-7442

        SUPPLEMENTARY INFORMATION:
        Background

        NMFS manages the groundfish fisheries in the exclusive economic zone of the Bering Sea and Aleutian Islands Management Area (BSAI) under the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Area (FMP), which was prepared by the North Pacific Fishery Management Council (Council) pursuant to the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), 16 U.S.C. 1801 et seq. Regulations implementing the FMP appear at 50 CFR part 679. General regulations that pertain to U.S. fisheries appear at subpart H of 50 CFR part 600.
        Maximum retainable amounts (MRAs) assist in limiting catch of a species within its annual total allowable catch (TAC). Once the TAC for a species is reached, retention of that species becomes prohibited and all catch of that species must be discarded. NMFS closes a species to directed fishing before the entire TAC is taken to leave sufficient amounts of the TAC available for incidental catch. The amount of the TAC remaining available for incidental catch is managed by a species-specific MRA. The MRA is the maximum round weight of a species closed to directed fishing that may be retained onboard a vessel. MRAs are calculated as a percentage of the weight of catch of each species open to directed fishing (the basis species) that is retained onboard the vessel. If the MRA for a species is 35 percent, then the round weight of the retained incidental species must be no more than 35 percent of the round weight of basis species. Directed fishing is defined in 50 CFR part 679 as “any fishing activity that results in the retention of an amount of a species or species group onboard a vessel that is greater than the MRA for that species or species group.”  Table 11 to 50 CFR part 679 lists each incidental catch and basis species and the MRA of each incidental catch species as a percentage of each basis species.
        Current regulations at § 679.20(e) require, with one exception for pollock, that the MRAs apply at any time during a fishing trip. This MRA accounting period is known as “instantaneous,” because the MRA may not be exceeded at any point in time during the fishing trip. The exception to this requirement, implemented in 2004 to reduce regulatory discards of pollock, allows the MRA for pollock retained by non-American Fisheries Act (AFA) vessels to apply at the end of each offload rather than at any time during the trip. Regulatory discards of a species occur when regulations prohibit retention of some portion of the catch for a species that is closed to directed fishing.
        The amount and rate of groundfish discards resulting from the non-AFA trawl catcher/processor (C/P) sector have been a continuing issue with the Council. These vessels have among the highest groundfish discard (and lowest retention) amounts and rates compared with other processing sectors participating in the BSAI groundfish fisheries.
        At the October 2005 Council meeting, the non-AFA trawl C/P sector proposed a way to further reduce its regulatory discards. Sector representatives noted that substantial portions of groundfish discard in the BSAI are regulatory discards. They testified that increasing the MRA accounting and calculation interval from “instantaneous” to a one-time calculation at the time of offload would allow more time to accumulate species open to directed fishing to use as a basis for the MRA, i.e., for retaining catch of species closed to directed fishing. The sector predicted that additional time to accumulate basis species would reduce the amount of regulatory discards, particularly in situations when relatively high rates of incidentally caught species were taken early in a fishing trip.
        The Council took the sector's proposal under consideration because of the multi-species nature of the sector's fisheries and its longstanding difficulties in reducing discards. The action was also intended to provide an opportunity for non-AFA trawl C/Ps to minimize bycatch and so would be consistent with National Standard 9 of the Magnuson Stevens Act. National Standard 9 requires that conservation and management measures minimize bycatch and, to the extent bycatch cannot be avoided, minimize the mortality of such bycatch.

         Although the Council's action provided relief from the “instantaneous” accounting interval, the Council determined that a relaxed interval would increase incentives to harvest incidental catch in Steller sea lion protection areas. To address this problem, the Council decided that a new fishing trip would begin or end any time a non-AFA trawl C/P would enter or leave a Steller sea lion protection area that was closed to directed fishing for Atka mackerel or Pacific cod. Currently, regulations provide that a new fishing trip is triggered when a vessel enters or exits an area where a different directed fishing prohibition applies, including Steller sea lion protection areas. However, when directed fishing for Pacific cod or Atka mackerel is closed both inside and outside a Steller sea lion protection area, entering or exiting the Steller sea lion protection area does not trigger the start of a new fishing trip because the directed fishing prohibitions are the same on either side of the Steller sea lion protection area. This allows vessels to retain Pacific cod or Atka mackerel caught inside a Steller sea lion protection area using target species (basis species) retained from outside the Steller sea lion protection areas. The Council's action to require that a new fishing trip start each time a vessel enters or leaves a Steller sea lion protection area, regardless of the fishery closures in effect outside the Steller sea lion protection areas, would limit the potential to top-off and target Pacific cod or Atka mackerel inside the protection areas. The new fishing trip trigger also would facilitate NMFS' monitoring MRA compliance inside the Steller sea lion protection areas (at the end of the trip for some species and at any point in time for other species). In response to the Council's 2006 action, NMFS published a proposed rule (74 FR 7209, February 13, 2009). A detailed description of the proposed changes to MRA accounting is included in the proposed rule. To provide the non-AFA trawl C/P sector additional flexibility to increase retention and decrease regulatory discards of certain groundfish species, NMFS proposed to change the MRA calculation timing from “instantaneous” to instead occur at the end of a fishing trip. Consistent with the Council motion, instantaneous MRA accounting would continue to apply inside Steller sea lion protection areas. NMFS proposed to revise the definition of a fishing trip at § 679.2 to require that a new fishing trip would start or end when a non-AFA trawl C/P entered or exited a Steller sea lion protection area that was closed to directed fishing for Pacific cod or Atka mackerel.
        A key element of the proposed rule would have established how MRAs would be applied to Atka mackerel and Pacific cod in the BSAI. The proposed rule also would have clarified that the location of Atka mackerel and Pacific cod retained catch could impact MRA accounting requirements, depending upon whether these species were retained inside or outside a designated Steller sea lion protection area. For example, if a non-AFA trawl C/P completed one fishing trip inside a Steller sea lion protection area and a second fishing trip outside a Steller sea lion protection area, two different MRA accounting intervals would have applied to retention of Atka mackerel, as long as a single haul did not occur on both sides of a Steller sea lion protection area. For a non-AFA trawl C/P in an Amendment 80 cooperative, if Atka mackerel were closed to directed fishing both inside and outside the Steller sea lion protection area, MRAs would have applied at any time (i.e., “instantaneously”) during that fishing trip inside the Steller sea lion protection area, and MRAs would not apply outside the Steller sea lion protection area. For a non-AFA trawl C/P that was not in an Amendment 80 cooperative, if Atka mackerel were closed to directed fishing both inside and outside the Steller sea lion protection area, MRAs also would have applied at any time during that fishing trip inside the Steller sea lion protection area, and would have applied at the end of a fishing trip outside the Steller sea lion protection area.
        Since the Council recommended this action, two significant programs (Amendment 79 and Amendment 80) have been implemented by the Secretary to improve utilization and retention of groundfish caught by the non-AFA trawl C/P sector in the BSAI. Amendment 79 (71 FR 17362, April 6, 2006) implemented the groundfish retention standard (GRS), requiring all vessels in this sector that are greater than or equal to 125 ft. (38.1 m) to comply with a minimum annual percent of total groundfish caught. The GRS rate for 2009 requires that vessels retain 75 percent of all groundfish caught. The GRS increase from the baseline of 65 percent in 2008 to the current level has been effective in increasing this sector's retained catch of groundfish. The GRS requires this sector to continue to increase the percentage of retained catch of groundfish to 85 percent by 2011.
        The Amendment 80 cooperative program (72 FR 52668, September 14, 2007) extended the GRS to all vessels in the non-AFA trawl C/P sector, regardless of length, and developed a cooperative structure for the sector that is intended to encourage additional retention and utilization of groundfish. By extending the scope of the GRS to smaller vessels in the sector and by establishing a limited access permit program (LAPP) program authorizing annual groundfish allocations to the sector, Amendment 80 was intended to encourage fishing practices that would lower groundfish discard rates. Because the direct groundfish allocations of species under Amendment 80 included five of the eight included in this MRA accounting proposed rule, many of these important species no longer are closed to directed fishing, thereby negating some of the potential impacts of this proposed action. The species allocated by Amendment 80 to this sector are yellowfin sole, flathead sole, rock sole, Atka mackerel and Pacific cod.
        Response to Comments
        The proposed rule was published in the Federal Register for a 30-day public review and comment period. A total of five written submissions were received. Four of the comment submissions were opposed to revising MRA accounting for non-AFA trawl C/Ps in the BSAI, no comments were in favor, and one comment addressed issues not within the scope of the proposed rule. Commenters included two representatives of the non-AFA trawl C/P sector, representing all but one of the 21 vessels in that sector, and the general public.

          Comment 1: The costs of the action to the non-AFA trawl C/P sector would exceed the benefits. The proposed regulation to trigger a new fishing trip any time a vessel enters or exits a Steller sea lion could reduce the amount of valuable incidental catch, such as Atka mackerel and Pacific cod, that may be retained from inside the Steller sea lion protection areas when compared to retention allowed under current regulations. The potential reduction in the value of retained incidental catch as a result of the new fishing trip trigger likely would exceed any increase in the value of returned incidental catch as a result of the longer MRA accounting period.

          Response: The proposed action relied on previous industry testimony indicating this action would increase the value of groundfish catch to the non-AFA trawl C/P sector. Now, representatives for this sector assert in their comments that this is not the case because the proposed rule requires instantaneous accounting with an additional fishing trip trigger for a new logbook entry to accurately account for MRAs inside Steller sea lion protection areas. NMFS' response to Comment 6 explains that the additional fishing trip trigger and logbook entry are provisions necessary to support the action, as they allow for accurate estimates of the amount of Atka mackerel and Pacific cod retained in Steller sea lion protection areas. NMFS has no data or information other than these public comments from members of the non-AFA trawl C/P sector to conclude that the costs of the proposed trip trigger differ from those suggested in public comment. Those who submitted public comments on this issue represent directly or indirectly all but one of the vessels in the non-AFA trawl C/P sector. Thus, NMFS believes that the concerns expressed in these comments are representative of the overall interests of the affected sector. No contrary information or comment was received from any other sector members.

          Comment 2: The proposed measures will not improve retention of groundfish and may increase regulatory discards of some groundfish species. Instantaneous MRA accounting will reduce the amount of Atka mackerel and Pacific cod that can be retained from catch inside the Steller sea lion protection areas. If a non-AFA trawl C/P operator completed a trawl tow where the amount of Atka mackerel caught in the Steller sea lion protection area exceeded the available basis species inside the Steller sea lion protection area, the amount of Atka mackerel exceeding the MRA percent for an amount of basis species must be discarded. Under the current regulation, if the same operator preferred to retain Atka mackerel caught inside a Steller sea lion protection area, it would be possible for the operator to continue to fish outside this area, to catch sufficient amounts of basis species to stay at or under the Atka mackerel MRA.

          Response: One of the assumptions supporting the proposed rule was that this action would provide tools for reducing regulatory discards. Consistent with the Council action, NMFS determined that the proposed rule must include a trip trigger for vessels entering or exiting Steller sea lion trip protection areas (see response to Comment 6). Comments from the non-AFA trawl C/P sector support a determination that the new trip trigger would reduce the sector's opportunity to retain groundfish vis-a-vis the MRA provisions. Thus, this action is unlikely to achieve the objectives intended by the Council and identified as the purpose and need statement for the proposed rule. NMFS does not have any data or information to confirm a different outcome than the commenter suggests, has no reason to doubt the accuracy of this public comment, and assumes that it is correct.

          Comment 3: This regulation is unnecessary because other more effective means of reducing regulatory discards exist. For example, one tool in 50 CFR 679.27 for improving groundfish retention for non-AFA trawl C/Ps is the Groundfish Retention Standard (GRS), and a second tool is the fishing cooperative that many of these vessels joined under Amendment 80. These tools are more effective in improving the sector's retention of groundfish than the expanded MRA accounting period developed in this proposed rule.

          Response: NMFS agrees that the GRS is likely to be a more effective tool for reducing regulatory discards in the non-AFA trawl C/P sector compared with the tools provided by this proposed rule. Since the time of Council action, the GRS and Amendment 80 allocations and cooperative formation programs have been instituted to facilitate retention and reduce discards. The GRS sets specific retention requirements for groundfish, caught both as targets and incidentally, that increase annually from 65 percent in 2009 to 85 percent by 2011. It is likely that the GRS will compel members of this sector to increase groundfish retention until the maximum GRS is reached. NMFS does not have sufficient data at this time to determine if the cooperative formed under Amendment 80 has increased groundfish retention because it has only been in operation for less than two years.

          Comment 4: The proposed new fishing trip trigger in the proposed rule would cause additional confusion for tracking compliance with MRAs for the non-AFA trawl C/P sector. Under the proposed rule a vessel operator would need to comply with additional recordkeeping by filling out a new logsheet page each time the vessel entered or exited the Steller sea lion protection area. That operator would also need to document for NOAA Office for Law Enforcement that he has retained the necessary basis species from within a Steller sea lion protection area to match an amount of Atka mackerel or Pacific cod caught in a Steller sea lion protection area. These proposed recordkeeping provisions would require additional tracking of retained catch for non-AFA trawl C/P vessels as they fish through areas that they do not currently track, and increase the probability of unintentional MRA violations.

          Response: NMFS is not able to confirm if the additional trip trigger for new logbook entries described in this proposed rule is more burdensome or confusing to MRA accounting for vessels in the non-AFA trawl C/P sector compared with the current conditions that trigger the start of a fishing trip. However, the analysis for the proposed rule does state that non-AFA C/P vessel operators would be required to carry out additional recordkeeping and tracking of MRAs. Thus, it is possible that this additional recordkeeping could increase overall complexity and reporting costs of MRA accounting. For example, MRA accounting would have become more complex because the proposed rule applied multiple accounting periods by specific area and groundfish species. The additional recordkeeping was proposed as the least burdensome approach NMFS could implement to assist non-AFA trawl C/Ps in tracking MRAs, as they would only be required to fill out a new logsheet page each time a vessel entered or exited a Steller sea lion protection area. NMFS knows of no alternative recordkeeping method that would achieve the tracking requirements for the proposed action while being less burdensome.

          Comment 5: The non-AFA trawl C/P sector was not aware of the consequences of the trip trigger at the time the Council recommended this regulatory amendment. When issues began to be raised to the Council during the development of the proposed rule, the sector should have been afforded another opportunity to testify to the Council and express its support or lack thereof on the record.

          Response: NMFS acknowledges that at the time the Council concluded this action, it is possible that members of the non-AFA trawl C/P sector may not have fully understood the impacts of the additional trip trigger for vessels entering or exiting a Steller sea lion protection area. The SSL protection area trip trigger and logbook reporting requirement was not analyzed in the EA/RIR/IRFA used for the Council action. Further effects of the new fishing trip trigger were identified by NMFS and included in the EA/RIR/IRFA published with this proposed rule. Consequently, the action's impacts on non-AFA trawl C/P sector members may not have been well understood until publication of the proposed rule and accompanying EA/RIR/IRFA.

          Comment 6: The additional fishing trip trigger included in the proposed rule to prevent vessels from using Steller sea lion protection areas to top off on Atka mackerel and Pacific cod was not a logical component of the original action passed by the Council and is unnecessary.

          Response: NMFS disagrees with the commenter that the proposed new fishing trip trigger is not a logical component of the Council's final action. To comply with the proposed rules requirement to account for MRAs for Atka mackerel or Pacific cod at any time during a fishing trip inside BSAI Steller sea lion protection areas, vessel operators would have had to keep a discrete record of retained catch of these two species and the required basis species for computing MRAs when a vessel is inside a Steller sea lion protection area. To avoid exceeding retained catch limits at any time during a fishing trip inside Steller sea lion protection areas, the proposed rule required a non-AFA trawl C/P vessel operator to record and track the discrete amounts of retained basis species, Atka mackerel and Pacific cod, for any trawl tow or series of tows inside a Steller sea lion protection area. The new fishing trip trigger would have assured that those amounts of retained catch would remain discrete in the Steller sea lion protection area by requiring a new fishing trip to begin at any time a vessel entered or exited a Steller sea lion protection area. The additional trip trigger in the proposed rule would ensure that Atka mackerel caught in Steller sea lion protection areas would continue to be identified in NMFS' catch accounting system as being caught in these areas as opposed to some adjacent location. Finally, without a new trip trigger for identifying the beginning and end point of records for retained catch, it would be difficult for a vessel operator to demonstrate this discrete record to NOAA Office for Law Enforcement.

          Comment 7: The commenter requests that if NMFS considers any additional fishing trip triggers, they be addressed under the process associated with future reviews of Steller sea lion recovery and not this MRA accounting proposed rule.

          Response: The Steller sea lion recovery process is separate from this action and not relevant to proposed revisions of MRA accounting. Currently, NMFS is in the process of re-consultation and preparation of an updated Biological Opinion evaluating the impacts of the Alaska groundfish fisheries on endangered and threatened species, primarily Steller sea lions. The Biological Opinion and recovery planning will address a broad range of issues relative to Steller sea lion protection and may or may not include additional consideration of revisions to the definition of a fishing trip or MRA accounting.

          Comment 8: If NMFS proceeds with a final rule to revise MRA accounting for the non-AFA trawl C/P sector, it should revise MRA accounting from offload to offload as currently allowed for pollock rather than at the end of a fishing trip.

          Response: NMFS is withdrawing this proposed rule, and is not considering further rulemaking to revise MRA accounting to any interval at this time. However, the proposed rule explains why the alternatives for extending MRA accounting to the time of offload could result in significant monitoring and enforcement issues.

          Comment 9: The commenter requests information on whether the Pribilof Habitat Protection Zone plays into NMFS' planning process and asks if NMFS has studied the efficacy of the Pribilof Habitat Protection Zone.

          Response: The Pribilof Habitat Protection Zone is closed to trawling at all times. This proposed MRA rule only applies where trawling is allowed. Therefore, this proposed rule would have had no impact on the Pribilof Habitat Protection Zone.

          Comment 10: No fishing should be allowed in the BSAI for groundfish. This agency allows all marine mammals to starve so that commercial fishing profiteers can make a million dollars in a couple of days at sea.

          Response: This comment is not relevant to the proposed rule being considered because modifying season length or the allowable catch for any of the species in the proposed rule is outside the scope of this action. Total allowable catch amounts for groundfish species in the BSAI are established through the annual specifications process and remain the limit on total catch. The proposed rule did not adjust these amounts and was intended to reduce regulatory discards and improve retention of groundfish species already caught. It would have had no impact on the duration of season lengths or total allowable catch.
        Justification for Withdrawal
        NMFS is withdrawing this proposed rule because, as pointed out in public comment, representatives of the non-AFA trawl C/P sector who originally requested this action have requested that NMFS withdraw the proposed rule. These representatives have provided information demonstrating that the proposed rule will no longer assist the sector in increasing the value of groundfish catches, and it would not provide the intended flexibility to increase retention of groundfish in the BSAI.
        This action was proposed to assist in meeting objectives of National Standard 9 by providing an additional tool for reducing groundfish bycatch to the extent practicable. Comments provided by the non-AFA trawl C/P sector support a conclusion that the proposed rule may not be effective in reducing regulatory discards because of additional costs for complying with a new trip trigger. National Standard 9 states, “Conservation and management measures shall, to the extent practicable, (A) minimize bycatch and (B) to the extent bycatch cannot be avoided or minimize the mortality of such bycatch.” The proposed action, therefore, is unlikely to achieve the bycatch reduction objectives of National Standard 9 if vessel operators in this sector will not make use of the additional flexibility provided for reducing regulatory discards. Members of this sector state that they will not make use of the additional MRA accounting interval because all members of the single cooperative formed under Amendment 80 have an amendment 80 allocation for most of their important groundfish species, including Atka mackerel, Pacific cod, yellowfin sole, flathead sole, rock sole. Thus, fisheries for these species are never closed for directed fishing to the majority of vessels in this sector. Arrowtooth flounder also is included in the proposed action, but this is a minor target species for the non-AFA trawl C/P sector.

        If implemented as described in the proposed rule, the proposed revisions to MRA accounting also may be inconsistent with National Standard 7. National Standard 7 states, “Conservation and management measures shall, where practicable, minimize costs and avoid unnecessary duplication.” The non-AFA trawl C/P sector's comments state that the cost of the proposed action would exceed the benefits to the sector, because vessel operators would find it more difficult to retain Atka mackerel and Pacific cod inside Steller sea lion protection areas. Retaining Atka mackerel and Pacific cod inside Steller sea lion protection areas could be made more difficult because of insufficient amounts of basis species available inside Steller sea lion protection areas for matching with incidental catch of Pacific cod or Atka mackerel. That could have the effect of requiring these operators to discard these valuable species, compared with current regulations that allow these vessels to catch basis species outside Steller sea lion protection areas. Prior to these public comments, NMFS was not aware of and was not informed by this sector that the additional trip trigger would result in costs of the magnitude that could offset the value of a longer MRA accounting interval for species caught by non-AFA trawl C/Ps. Thus, the record for this action does not show how overall benefits outweigh the costs, and it could result in significant adverse economic impacts that are inconsistent with National Standard 7.
        Following the closing of the public comment period for the proposed rule and pursuant to MSA Sec. 304(b)(3), NMFS consulted with the Council at the April 2009, meeting, and informed the Council that the industry was now opposed to the MRA accounting revision. NMFS also informed that Council that it believed the appropriate action was to withdraw the rule.
        In conclusion, NMFS is withdrawing this proposed rule because it is inconsistent with the intent of the Council motion taken in 2006 and 2007 for the following reasons: it is likely to be inconsistent with National Standards 7 and 9; it is unlikely to achieve the Council's objective to improve groundfish retention and reduce regulatory discards; other regulatory tools such as the GRS, Amendment 80 sector allocations, and the sector fishing cooperatives, are likely to be more effective for improving groundfish retention; it is likely to increase costs to the non-AFA trawl C/P sector; and it is likely to impose implementation costs on NMFS without benefit to the non-AFA trawl C/P sector or to the Nation.

          Dated: December 4, 2009.
          Samuel D. Rauch III,
          Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.

      [FR Doc. E9-29475 Filed 12-9-09; 8:45 am]
      BILLING CODE 3510-22-S