        DEPARTMENT OF HOMELAND SECURITY
        Coast Guard
        46 CFR parts 2, 24, 25, 30, 70, 90, and 188
        [Docket No. USCG-2012-0919]
        RIN 1625-AB83
        Lifesaving Devices—Uninspected Commercial Barges and Sailing Vessels

          AGENCY:
          Coast Guard, DHS.

          ACTION:
          Notice of proposed rulemaking.

          SUMMARY:
          The Coast Guard proposes aligning its regulations with the 2010 Coast Guard Authorization Act. Before 2010, uninspected commercial barges and uninspected commercial sailing vessels fell outside the scope of a statute requiring the regulation of lifesaving devices on uninspected vessels. Lifesaving devices were required on uninspected commercial barges and sailing vessels only if they carried passengers for hire. The 2010 Act brought uninspected commercial barges and sailing vessels within the scope of the statutory requirement to carry lifesaving devices even if they carry no passengers. The Coast Guard proposes requiring use of wearable personal flotation devices for individuals on board uninspected commercial barges and sailing vessels, and amending several regulatory tables to reflect that requirement. This rulemaking promotes the Coast Guard's marine safety mission.

          DATES:

          Comments and related material must either be submitted to our online docket via http://www.regulations.gov on or before October 15, 2013 or reach the Docket Management Facility by that date.

          ADDRESSES:
          You may submit comments identified by docket number USCG-2012-0919 using any one of the following methods:
          (1) Federal eRulemaking Portal: http://www.regulations.gov.

          (2) Fax: 202-493-2251.
          (3) Mail: Docket Management Facility (M-30), U.S. Department of Transportation, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590-0001.
          (4) Hand delivery: Same as mail address above, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The telephone number is 202-366-9329.

          To avoid duplication, please use only one of these four methods. See the “Public Participation and Request for Comments” portion of the SUPPLEMENTARY INFORMATION section below for instructions on submitting comments.

          FOR FURTHER INFORMATION CONTACT:

          If you have questions on this proposed rule, call or email Mr. Martin Jackson, Office of Design and Engineering Standards Lifesaving and Fire Safety Division (CG-ENG-4), Coast Guard; telephone 202-372-1391, email Martin.L.Jackson@uscg.mil. If you have questions on viewing or submitting material to the docket, call Ms. Barbara Hairston, Program Manager, Docket Operations, telephone 202-366-9826.

        SUPPLEMENTARY INFORMATION:

        Table of Contents for Preamble

          I. Public Participation and Request for Comments
          A. Submitting Comments
          B. Viewing Comments and Documents
          C. Privacy Act
          D. Public Meeting
          II. Abbreviations
          III. Background
          IV. Discussion of Proposed Rule
          V. Regulatory Analyses
          A. Regulatory Planning and Review
          B. Small Entities
          C. Assistance for Small Entities
          D. Collection of Information
          E. Federalism
          F. Unfunded Mandates Reform Act

          G. Taking of Private Property
          H. Civil Justice Reform
          I. Protection of Children
          J. Indian Tribal Governments
          K. Energy Effects
          L. Technical Standards
          M. Environment

        I. Public Participation and Request for Comments

        We encourage you to participate in this rulemaking by submitting comments and related materials. All comments received will be posted without change to http://www.regulations.gov and will include any personal information you have provided.
        A. Submitting Comments
        If you submit a comment, please include the docket number for this rulemaking (USCG-2012-0919), indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation. You may submit your comments and material online or by fax, mail, or hand delivery, but please use only one of these means. We recommend that you include your name and a mailing address, an email address, or a phone number in the body of your document so that we can contact you if we have questions regarding your submission.
        To submit your comment online, go to http://www.regulations.gov and insert “USCG-2012-0919” in the “Search” box. Click on “Submit a Comment” in the “Actions” column. If you submit your comments by mail or hand delivery, submit them in an unbound format, no larger than 81/2 by 11 inches, suitable for copying and electronic filing. If you submit comments by mail and would like to know that they reached the Facility, please enclose a stamped, self-addressed postcard or envelope.
        We will consider all comments and material received during the comment period and may change this proposed rule based on your comments.
        B. Viewing Comments and Documents

        To view comments, as well as documents mentioned in this preamble as being available in the docket, go to http://www.regulations.gov and insert “USCG-2012-0919” in the “Search” box. Click “Search.” Click the “Open Docket Folder” in the “Actions” column. If you do not have access to the internet, you may view the docket online by visiting the Docket Management Facility in Room W12-140 on the ground floor of the Department of Transportation West Building, 1200 New Jersey Avenue SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. We have an agreement with the Department of Transportation to use the Docket Management Facility.
        C. Privacy Act

        Anyone can search the electronic form of comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review a Privacy Act notice regarding our public dockets in the January 17, 2008, issue of the Federal Register (73 FR 3316).
        D. Public meeting

        We do not now plan to hold a public meeting. You may submit a request for one to the docket using one of the methods specified under ADDRESSES. In your request, explain why you believe a public meeting would be beneficial. If we determine that one would aid this rulemaking, we will hold one at a time and place announced by a later notice in the Federal Register.
        II. Abbreviations

          AWO American Waterways Operators
          CDC Centers for Disease Control and Prevention
          CFR Code of Federal Regulations
          E.O. Executive Order
          FR Federal Register

          NAICS North American Industry Classification System
          NIOSH National Institute for Occupational Safety and Health
          Non-PFH Not carrying persons for hire
          NPRM Notice of proposed rulemaking
          OSHA Occupational Safety and Health Administration
          PFD Personal flotation device
          Pub. L. Public Law
          RCP American Waterways Operators' Responsible Carriers Program
          § Section symbol
          SBA U.S. Small Business Association
          The Act 2010 Coast Guard Authorization Act
          U.S.C. United States Code

        III. Background

        Sections 2103 and 4102 of title 46, United States Code (U.S.C.), provide the legal basis for this proposed rule. Section 2103 gives the Secretary of the department in which the Coast Guard is operating general regulatory authority to carry out the provisions of 46 U.S.C. Subtitle II (“Vessels and Seamen”). Section 4102(b), as amended by section 619 of the 2010 Coast Guard Authorization Act (the Act), Public Law 111-281, 124 Stat. 2905, requires the Secretary to “prescribe regulations requiring the installation, maintenance, and use of life preservers and other lifesaving devices for individuals on board uninspected vessels.” The Secretary of Homeland Security's authority under 46 U.S.C. 2103 and 4102 is delegated to the Coast Guard. See DHS Delegation No. 0170.1(92)(a), (92)(b).

        The uninspected vessels to which section 4102(b) applies are defined in 46 U.S.C. 2101(43) as vessels not subject to inspection under 46 U.S.C. 3301 and that are not recreational vessels as defined in 46 U.S.C. 2101(25). Until passage of the Act in 2010, section 4102(b) applied only to uninspected vessels “propelled by machinery,” and thus excluded most barges and sailing vessels unless they carried passengers for hire. (Vessels carrying passengers for hire are inspected vessels covered by 46 U.S.C. 3301.) Current Coast Guard regulations that implement section 4102(b) reflect the “propelled by machinery” requirement and therefore specifically exempt those excluded barges and sailing vessels. See 46 CFR 25.25-1(c) and (d).
        The purpose of the proposed rule is to implement 46 U.S.C. 4102(b) as amended by the Act. The Act deleted the requirement in section 4102(b) that vessels be propelled by machinery. As amended, section 4102(b) now requires all non-recreational uninspected vessels, regardless of vessel type or mode of propulsion, to make some form of lifesaving devices available for the use of individuals on board the vessel. The types and numbers of devices appropriate for each type of vessel are left to the Coast Guard's discretion, as are the requirements for installing, maintaining, and using those devices.
        We are unaware of any commercial sailing vessel currently in service, except for those that carry passengers for hire and that, therefore, are inspected vessels subject to Coast Guard regulations in 46 CFR subchapters H, K, or T, and already required to carry lifesaving devices. However, should such an uninspected commercial sailing vessel ever enter service, it would be covered by this proposed rule. Many commercial barges are also subject to inspection and therefore are already required to carry lifesaving devices.1

            1 Barges subject to inspection include barges carrying combustible or flammable liquid cargo in bulk (inspected in accordance with 46 CFR subchapter D); barges carrying more than a few passengers (the number varies by barge type but is generally at least 7; 46 CFR subchapters H, K, or T); seagoing and Great Lakes barges (46 CFR subchapter I); and tank barges carrying specified bulk or dangerous cargoes (46 CFR subchapter O).

        IV. Discussion of Proposed Rule

        The Coast Guard proposes amending 46 CFR subpart 25.25, which concerns life preservers and other lifesaving equipment on uninspected commercial vessels.
        Section 25.25-1 exempts certain types of vessels from subpart 25.25. Paragraphs (a) and (b) of the section exempt non-commercial vessels and vessels leased, rented, or chartered to another for that person's non-commercial use. Paragraphs (c) and (d) exempted uninspected commercial sailing vessels and barges that do not carry passengers for hire. Paragraphs (c) and (d) reflected the pre-2010 inclusion of the “propelled by machinery” clause in 46 U.S.C. 4102(b). Because section 4102(b) now mandates the Coast Guard to require some form of lifesaving devices on uninspected commercial sailing vessels and barges that do not carry passengers for hire, we propose removing 46 CFR 25.25-1(c) and (d).
        We propose amending the definitions in 46 CFR 25.25-3 by adding a definition for “approval series,” a term we propose using elsewhere in the subpart to describe equipment requirements.
        We propose amending 46 CFR 25.25-5. We propose revising current paragraphs (b) through (f) to eliminate references to equipment specifications that have become obsolete or that have lost their Coast Guard-approved status since this section was last amended in 2002. Although the proposed regulatory text omits the language of current § 25.25-5(f)(3), requiring Type V commercial hybrid PFDs to be worn when a vessel is underway, the substance of that provision would be covered by the proposed requirement in § 25.25-5(c)(2)(i) for approved commercial hybrid PFDs to be used in accordance with the conditions marked on the PFD and in the owner's manual. All Coast Guard-approved Type V hybrid PFDs are labeled with, and their user manuals refer to, the conditions contained in current § 25.25-5(f)(3). Otherwise, the requirements currently found in § 25.25-5(b) through (f) would not be substantively changed, but would be incorporated into revised § 25.25-5(b) and (c).
        We propose revising the introductory paragraph in § 25.25-5(b) to provide for commercial barges of any length. Barge operators would have to provide some form of wearable PFD (or an immersion suit) for individuals on board. Although most barges are longer than 26 feet, unlike other uninspected vessels we would not require barges to be equipped with lifebuoys. Lifebuoys typically are mounted on stanchions. Given the configuration of some barges, installation of a lifebuoy stanchion could unreasonably interfere with operations, and because often only one individual is on board a barge at any given time, should that individual fall overboard there would be no one available to throw the lifebuoy to the individual. We think the use of a wearable PFD not only involves less burden but also provides greater safety.
        We would amend 46 CFR 25.25-9 to allow PFDs for barge personnel to be stowed remotely rather than on the barge itself, and to require barge operators to ensure that PFDs are worn by individuals while they are on board a barge. This is in line with current industry practice. Typically, barge operators stow PFDs on the barge's towboat, and require crew members to don PFDs before they go aboard a barge and to wear them while on board. Allowing this not only increases safety but also does so at a lower cost relative to the lifebuoy option.
        Finally, we would amend tables in 46 CFR 2.01-7, 24.05-1, 30.01-5, 70.05-1, 90.05-1, and 188.05-1. These tables describe the applicable Coast Guard regulations for different vessel types. They currently refer to the 46 CFR 25.25-1(c) and (d) exemptions that we propose removing. We would reflect the removal of those exemptions in the tables.
        V. Regulatory Analyses
        We developed this proposed rule after considering numerous statutes and executive orders (E.O.s) related to rulemaking. Below we summarize our analyses based on these statutes or E.O.s.
        A. Regulatory Planning and Review
        Executive Orders 12866 (“Regulatory Planning and Review”) and 13563 (“Improving Regulation and Regulatory Review”) direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility.
        This proposed rule is not a significant regulatory action under section 3(f) of E.O. 12866, Regulatory Planning and Review, as supplemented by E.O. 13563, Improving Regulation and Regulatory Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget (OMB) has not reviewed it under that Order. Nonetheless, we developed an analysis of the costs and benefits of the proposed rule to ascertain its probable impacts on industry. We consider all estimates and analysis in this Regulatory Analysis to be preliminary and subject to change in consideration of public comments.
        A preliminary regulatory assessment follows:
        As described in section III (Background) of this NPRM, as amended by section 619 of the Act, 46 U.S.C. 4102(b) now makes all uninspected commercial barges and sailing vessels subject to Coast Guard regulation for the installation, maintenance, and use of life preservers and other lifesaving devices for individuals on board. The 2010 amendment removed language that formerly limited the applicability of section 4102(b) to vessels “propelled by machinery,” which effectively kept most commercial barges, which are not self-propelled by machinery, as well as commercial sailing vessels, outside the scope of section 4102(b). At this time, we are unaware of any uninspected commercial sailing vessel not carrying passengers for hire currently in service, and thus the data on which the rest of this discussion are based relate exclusively to uninspected commercial barges not carrying passengers for hire.
        Proposed 46 CFR 25.25-5(b) requires owners of affected vessels to store and maintain at least one PFD for each person on board a barge.2
           In lieu of storing a PFD for each individual onboard a barge, PFDs can be stored and maintained on another vessel so long as crewmembers wear the PFDs while onboard the barge. For instance, uninspected commercial barges not carrying passengers for hire carry low-cost cargos in bulk and generally do not carry individuals on board. However, towing vessel personnel may be on board the barge to perform specific tasks such as securing the barge to other barges or the towing vessel, or providing lookout for the towing vessel.

            2 While barges may in practice be tied together, there is no exception as to storing a set of lifesaving devices for each barge rather than one per set of barges or around the perimeter of a set of barges. Towing vessels may transport barges from various barge owners and drop them off on a schedule, so having lifebuoys and sets of PFDs on a perimeter of a set of barges may not be feasible.

        While some firms that operate barges may also own them, for the purposes of this analysis, we treat barge owners and operators as different companies. We assume that the barge operators would be responsible for the PFDs because they are responsible for the safety of their crews and therefore they would store a sufficient number of PFDs for each crewmember on board the towing vessel. Under proposed 46 CFR 25.25-9(c), a barge operator may comply with proposed § 25.25-5(b) by storing PFDs elsewhere and ensuring that each individual dons the equipment before boarding the barge and keeps it on for as long as the individual remains on board, in lieu of maintaining PFDs on each barge. This would reduce costs by eliminating the need to install storage facilities on each barge, and would enable the typical industry practice of PFDs being worn to be substituted.3
           We also assume that the barge owners would then negotiate the PFD wear conditions with the barge operators.

            3 Based on information from the American Waterways Operators (AWO), we believe that crewmembers wear PFDs while onboard a barge.

        Table 1 summarizes the affected population, costs, and benefits of this proposed rule.

          Table 1—Summary of Affected Population, Costs and Benefits

            Category
            Description

            Applicability
            Uninspected commercial vessels.Not propelled by machinery.
              Not carrying passengers for hire.

            35,568 barges (including new and currently inactive barges).0 sailing vessels.

            Costs
            No additional cost to purchase or install PFDs since already required on towing vessels that would transport affected barges.

            Benefits (Qualitative)
            Improves regulatory efficiency by providing technical updates to the Code of Federal Regulations.Reinforces existing company policy and current industry practice of PFD use.

        Cost
        No cost was attributed to the purchase, installation, or maintenance of PFDs due to current regulatory requirements for the carriage of PFDs on towing vessels 4
           and standard industry practice of wearing a PFD while on board commercial barges. Uninspected commercial barges not carrying passengers for hire are typically unmanned and anyone boarding such vessel would be coming from either a dock, shore facility, or another vessel. Under OSHA regulations in 29 CFR 1926 Subpart E, personnel boarding from a dock or shore are already required to wear a PFD and we find no evidence of non-compliance. Under 46 CFR 25.25-5, uninspected vessels (including towing vessels) are required to maintain at least one PFD per person on board the vessel. In proposed 46 CFR 25.25-5, if a barge operator stores PFDs elsewhere and ensures that each individual dons the equipment before boarding the barge and keeps it on for as long as the individual remains on board, they can use the PFDs stored on the towing vessel in lieu of maintaining a set on each barge. Presumably, a crewmember coming from a towing vessel would wear the PFD that was originally stored on the towing vessel, which discussions with industry show to be standard practice. Therefore, we estimate that there is no additional cost to purchase or install new PFDs in response to the proposed rule. We note that the cost for a type 1 PFD may range from $55 to $79 per PFD depending on the type that a company uses and the expected lifespan of a PFD is 5 years.5

            4 46 CFR 25.25-5

            5 http://www.westmarine.com/webapp/wcs/stores/servlet/SiteSearch?storeId=11151&langId=-1&catalogId=10001&pageSize=10&beginIndex=0&sType=SimpleSearch&searchTermScope=3&Ns=Most+Popular%7C0&keyword=work+vest&searchBtn.

        As stated in the introductory paragraphs of this section, we believe that companies already require the wearing of PFDs or work vests based on current OSHA regulatory requirements and industry practice.6
           Furthermore, the American Waterways Operators association has encouraged training with development of “Fall Overboard Prevention” and “Slip, Trip and Fall Prevention” lesson plans since 2002, to raise awareness on preventing falls overboard and encouraging PFD use.7
           The American Waterways Operators' Responsible Carriers Program (RCP) requires that participants ensure that a sufficient number of PFDs are available and in working order.8
           OSHA also encourages wearing of PFDs to improve deck safety on barges.9

            6 See for example http://www.parkertowing.com/downloads/Person.PDF; http://www.southerntowing.net/December2005.pdf.

            7 http://www.americanwaterways.com/commitment_safety/lessons/Fall_Overboard/slpsplan.doc; http://www.americanwaterways.com/commitment_safety/lessons/ppe/PPE_PFDs.DOC;

            http://www.americanwaterways.com/commitment_safety/QAT/falloverboardqatreportapril2012.pdf.

            8 http://www.americanwaterways.com/commitment_safety/RCP.pdf.

            9 http://www.osha.gov/Publications/3358deck-barge-safety.pdf.

        Benefits
        A benefit of this rule is the improvement in regulatory efficiency by providing technical updates to the Code of Federal Regulations, aligning them to the U.S. Code and thereby reducing the potential for uncertainty and confusion.
        We reviewed casualty cases from the years 2000 to 2010 that may have been impacted by this proposed rule. During this time, there were 49 falls overboard from barges, an average of approximately four casualties a year. We reviewed these cases to see if the individual overboard wore a PFD (or had ready access to one) and whether the availability of such devices could have reduced the risk of death in a fall overboard. Of the casualties that we reviewed, we found only one instance where the individual did not wear a PFD (despite company policy requiring the use of a PFD).10
           The casualty report noted that the failure to wear a PFD was a contributing factor to the fatality. In this case, the proposed regulation may have reinforced existing company policy of PFD use.

            10 Marine Information for Safety and Law Enforcement Activity Number 90148, year 2011.

        Alternatives
        We examine four alternatives for this regulation.

          Proposed Alternative—Store and maintain enough PFDs for all persons on board. The PFD can be worn in lieu of storage: This alternative was chosen because it meets the statutory requirement at no additional cost. Furthermore, this requirement would be more in line with existing PFD requirements for other vessels and provides regulatory flexibility in the option of storage or wearing of PFDs. Uninspected vessels (such as towing vessels) must store and maintain a sufficient number of PFDs for every individual on board the vessel in accordance with 46 CFR 25.25-5. In lieu of storing PFDs, companies can require individuals to wear a PFD or work vest. Companies have the option of either instituting a policy of wearing PFDs while on board (which discussions with industry and reviews of their casualty data show to be the case on the majority of vessels) or otherwise making PFDs readily accessible. Therefore, we estimate that there is no cost to obtain or install PFDs. Compared to other listed alternatives, this proposed alternative provides the greatest flexibility and safety, at no cost.

          Alternative 1—Require that all vessels have a lifebuoy, and store a sufficient number of PFDs on board. In lieu of storing PFDs, persons can wear PFDs. This alternative is similar to the proposed alternative in that it requires the wearing or storing of PFDs (which we estimate to be no additional cost), but owners would also need to install a lifebuoy on board barges at an estimated cost of $262 per vessel (barge) every 5 years.11
           Annual costs may range from $342,958 to $3.6 million depending on the annual affected population and lifebuoy replacement.12
           At a total estimated 35,568 barges (including new constructions and currently inactive barges) we anticipate that the 10-year undiscounted cost would be $16.9 million for this alternative. This alternative was not chosen because this would cost more and not provide additional benefit as the lifebuoy would provide protection redundant to the PFD, and in most cases, there would be no one available to deploy it. We did not find any associated benefits that would outweigh the costs for this alternative. Table 2 provides the breakdown in population and undiscounted costs by year.

            11 Welder: 4 hours (Coast Guard subject matter expert)*$27 per hour (http://www.bls.gov/oes/current/oes514121.htm) * load factor of 1.482. Therefore, $18.67 * 1.482 = $27.70. Lifebuoy: $72. http://www.amazon.com/RING-BUOY-WHITE-COAST-APPROVED/dp/B001DSKEAO, http://www.westmarine.com/webapp/wcs/stores/servlet/Product_11151_10001_39507_-1?cid=chanintel_google&ci_src=14110944&ci_sku=39507.

          Brackets $40.00. http://www.starmarinedepot.com/Seachoice+Ring+Buoy+Bracket.html, http://www.starmarinedepot.com/Seachoice+Ring+Buoy+Bracket.html
          Stanchion $42.00. http://www.discountsteel.com/items/A36_Hot_Rolled_Steel_Equal_Leg_Angle.cfm?item_id=183&size_no=19&sku_no=74&pieceLength=cut&len_ft=8&frmGS=true. Therefore, $262 = (4 * $27/hour welder wage, loaded) + $72 per lifebuoy + $40 brackets (for 3) + $42 per stanchion.

            12 Similar to PFDs, we assume the expected lifespan, and therefore replacement time, of a lifebuoy to be 5 years.

          Table 2—Undiscounted Cost To Install Ring Buoys

            Year
            Population
            Replacement
            Per vessel cost($)

            Undiscounted cost($)

            Year 1
            12548
            0
            262
            3,287,576

            Year 2
            12548
            0
            262
            3,287,576

            Year 3
            1309
            0
            262
            342,958

            Year 4
            1309
            0
            262
            342,958

            Year 5
            1309
            0
            262
            342,958

            Year 6
            1309
            12548
            262
            3,630,534

            Year 7
            1309
            12548
            262
            3,630,534

            Year 8
            1309
            1309
            262
            685,916

            Year 9
            1309
            1309
            262
            685,916

            Year 10
            1309
            1309
            262
            685,916

            Total

            16,922,842

          Alternative 2—Require that all vessels have a lifebuoy only. This change would have the effect of requiring one lifebuoy on board each vessel (barge). The lifebuoy would need to be installed (and replaced as needed) at an estimated cost to barge owners of $262 per vessel (barge) every 5 years. At an estimated 35,568 barges, we anticipate that this alternative would cost $16.9 million overall, undiscounted. As mentioned above, the lifebuoy would provide protection redundant to the PFD, and in most cases, there would be no one available to deploy it. Also mentioned in Alternative 1, above, is the derivation of the cost. This alternative was not chosen because it would not provide the lowest cost with the maximum benefits.

          Alternative 3—No action. Section 619 of the Act directs the Department of Homeland Security (DHS) Secretary to carry out specific regulatory actions; therefore if no action is taken, the Coast Guard, having been delegated this rulemaking authority by the DHS Secretary, will not fulfill its Congressional mandate. This will further cause a conflict between U.S. Code and the Code of Federal Regulations, resulting in regulatory uncertainty and confusion.
        B. Small Entities
        Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this proposed rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.
        There are approximately 2,622 owners of 22,478 barges. We researched 355 randomly selected small entities to determine if they fell below or exceeded the threshold for a small entity, as determined by the U.S. Small Business Association (SBA). To establish whether an entity was below the threshold or above the threshold, we used the North American Industry Classification System (NAICS) code for each industry and the small entity qualifying definitions for each NAICS code established by the SBA for businesses. The following provides a breakdown of the size determination for the entities:
        • 3 Government or non-profit exceeding the threshold
        • 1 Government or non-profit below the threshold
        • 45 businesses exceeding the threshold
        • 43 businesses below the threshold
        • 263 unknown and therefore considered small
        Based on this analysis, 86 percent of the sample is small entities.

        Table 3 provides a description of the most-prevalent NAICS for the small entities.

          Table 3—Nine Most-Prevalent NAICS Codes and Small Entities Size Standards

            NAICS
            Industry
            Percent of small entities
            SBA Sizethreshold
              (less than threshold small)

            SBA Sizestandard type

            Number of entities

            336611
            Ship Building and Repairing
            16
            1000
            Employee
            7

            237110
            Water and Sewer Line and Related Structures Construction
            7
            $33,500,000
            Revenue
            3

            532411
            Commercial Air, Rail, and Water Transportation Equipment Rental and Leasing
            7
            $7,000,000
            Revenue
            3

            236220
            Commercial and Institutional Building Construction
            5
            $33,500,000
            Revenue
            2

            237990
            Other Heavy and Civil Engineering Construction
            5
            $33,500,000
            Employee
            2

            238910
            Site Preparation Contractors
            5
            $14,000,000
            Employee
            2

            327320
            Ready-Mix Concrete Manufacturing
            5
            500
            Employee
            2

            423320
            Brick, Stone, and Related Construction Material Merchant Wholesalers
            5
            100
            Employee
            2

            483211
            Inland Water Freight Transportation
            5
            500
            Employee
            2

            All others
            43

            19

            Total

            100

            44

        Company revenue for businesses below the threshold, as established by the SBA, ranges from $59,000 to $7.5 million. However, we do not anticipate additional costs to this proposed rule, so we do not anticipate significant economic impacts on affected small entities as a result of this proposed rule.

        Therefore, the Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule, if promulgated, will not have a significant economic impact on a substantial number of small entities. If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment to the Docket Management Facility at the address under ADDRESSES. In your comment, explain why you think it qualifies and how and to what degree this rule would economically affect it.
        C. Assistance for Small Entities

        Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this proposed rule so that they can better evaluate its effects on them and participate in the rulemaking. If the proposed rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance; please consult Mr. Martin Jackson, Office of Design and Engineering Standards, Lifesaving and Fire Safety Division (CG-ENG-4) via phone at (202) 372-1391 or via email at Martin.L.Jackson@uscg.mil. The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.
        Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247).
        D. Collection of Information
        This proposed rule would call for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
        E. Federalism
        A rule has implications for federalism under E.O. 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this rule under that Order and have determined that it has implications for federalism. A summary of our analysis follows.
        Before the enactment of section 619 of the Act, the lifesaving device requirements found in 46 U.S.C. 4102(b) did not apply to uninspected commercial sailing vessels and uninspected commercial barges not carrying passengers for hire. By enacting section 619 of the Act, Congress expressly intended existing Coast Guard regulations to apply these vessels that were previously exempted. Therefore, existing State or local laws or regulations that regulate the “installation, maintenance, and use of life preservers and other lifesaving devices for individuals on board uninspected vessels” are preempted, but only in so far as a State or local law or regulation conflicts with the federal regulation.
        Given our analysis, the Coast Guard recognizes the key role State and local governments may have in making regulatory determinations. Additionally, Sections 4 and 6 of E.O. 13132 require that for any rules with preemptive effect, the Coast Guard shall provide elected officials of affected State and local governments and their representative national organizations the notice and opportunity for appropriate participation in any rulemaking proceedings, and to consult with such officials early in the rulemaking process. Therefore, we invite affected State and local governments and their representative national organizations to indicate their desire for participation and consultation in this rulemaking process by submitting comments to this notice. In accordance with E.O. 13132, the Coast Guard will provide a federalism impact statement to document (1) the extent of the Coast Guard's consultation with State and local officials that submit comments to this proposed rule, (2) a summary of the nature of any concerns raised by State or local governments and the Coast Guard's position thereon, and (3) a statement of the extent to which the concerns of State and local officials have been met.
        F. Unfunded Mandates Reform Act

        The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this proposed rule would not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
        G. Taking of Private Property
        This proposed rule would not cause a taking of private property or otherwise have taking implications under E.O. 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.
        H. Civil Justice Reform
        This proposed rule meets applicable standards in sections 3(a) and 3(b)(2) of E.O. 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
        I. Protection of Children
        We have analyzed this proposed rule under E.O. 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and would not create an environmental risk to health or risk to safety that might disproportionately affect children.
         J. Indian Tribal Governments
        This proposed rule does not have tribal implications under E.O. 13175, Consultation and Coordination with Indian Tribal Governments, because it would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.
        K. Energy Effects
        We have analyzed this proposed rule under E.O. 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under E.O. 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy.
        L. Technical Standards
        The National Technology Transfer and Advancement Act (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies.
        This proposed rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.
        M. Environment

        We have analyzed this proposed rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have made a preliminary determination that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. A preliminary environmental analysis checklist supporting this determination is available in the docket where indicated under the “Public Participation and Request for Comments” section of this preamble. This rule involves regulations concerning equipping of vessels, equipment approval and carriage requirements and vessel operation safety standards. Thus, this rule is likely to be categorically excluded under section 2.B.2, figure 2-1, paragraphs (34)(d) and (e) of the Instruction, and 6(a) of the Federal Register, Vol. 6, No. 14, Tuesday, July 23, 2002, page 48243. We seek any comments or information that may lead to the discovery of a significant environmental impact from this proposed rule.

          List of Subjects
          46 CFR Part 2
          Marine safety, Reporting and recordkeeping requirements, Vessels.
          46 CFR Part 24
          Marine safety.
          46 CFR Part 25
          Fire prevention, Marine safety, Reporting and recordkeeping requirements.
          46 CFR Part 30
          Cargo vessels, Foreign relations, Hazardous materials transportation, Penalties, Reporting and recordkeeping requirements, Seamen.
          46 CFR Part 70
          Marine safety, Passenger vessels, Reporting and recordkeeping requirements.
          46 CFR Part 90
          Cargo vessels, Marine safety.
          46 CFR Part 188
          Marine safety, Oceanographic research vessels.

        For the reasons discussed in the preamble, the Coast Guard proposes to amend 46 CFR parts 2, 24, 25, 30, 70, 90, and 188 as follows:

          PART 2—VESSEL INSPECTIONS

        1. The authority citation for part 2 continues to read as follows:

          Authority:
           Sec. 622, Pub. L. 111-281; 33 U.S.C. 1903; 43 U.S.C. 1333; 46 U.S.C. 2110, 3103, 3205, 3306, 3307, 3703; 46 U.S.C. Chapter 701; E.O. 12234, 45 FR 58801, 3 CFR, 1980 Comp., p. 277; Department of Homeland Security Delegation No. 0170.1.

          § 2.01-7
          [Amended]

        2. Amend § 2.01-7 to remove the phrase “carrying passengers or passengers for hire” from Table 2.01-7(a), column 5, rows 3 and 4, and remove the phrase “none.” from column 5, row 6, adding in its place the phrase “All vessels not covered by columns 2, 3, 4, and 6.”

          PART 24—GENERAL PROVISIONS

        3. The authority citation for part 24 continues to read as follows:

          Authority:
          46 U.S.C. 2113, 3306, 4104, 4302; Pub. L. 103-206; 107 Stat. 2439; E.O. 12234; 45 FR 58801, 3 CFR, 1980 Comp., p. 277; Department of Homeland Security Delegation No. 0170.1.

          § 24.05-1
          [Amended]

        4. Amend § 24.05-01 to remove the phrase “carrying passengers or passengers for hire” from Table 24.05-1(a), column 5, rows 3 and 4, and remove the phrase “none.” from column 5, row 6, adding in its place the phrase “All vessels not covered by columns 2, 3, 4, and 6.”

          PART 25—REQUIREMENTS

        5. The authority citation for part 25 continues to read as follows:

          Authority:
           33 U.S.C. 1903(b); 46 U.S.C. 3306, 4102, 4302; Department of Homeland Security Delegation No. 0170.1.

          § 25.25-1
          [Amended]

        6. Amend § 25.25-1 as follows:

        a. In paragraph (a) following the text “noncommercial use;”, add the word “and”;

        b. In paragraph (b) following the text “noncommercial use”, remove the punctuation “;”, and add, in its place, the punctuation “.”; and
        c. Remove paragraphs (c) and (d).
        7. Revise § 25.25-3 to read as follows:

          § 25.25-3
          Definitions.
          As used in this subpart:
          (a) Approval series means the first six digits of a number assigned by the Coast Guard to approved equipment. Where approval is based on a subpart of subchapter Q of this chapter, the approval series corresponds to the number of the subpart. A listing of current and formerly approved equipment and materials may be found on the Internet at: http://cgmix.uscg.mil/equipment. Each OCMI may be contacted for information concerning approved equipment.
          (b) Approved means approved under subchapter Q of this chapter.
          (c) Use means operate, navigate, or employ.

        8. Revise § 25.25-5 to read as follows:

          § 25.25-5
          Life preservers and other lifesaving equipment required.
          (a) No person may operate a vessel to which this subpart applies unless it meets the requirements of this subpart.
          (b) The following applies to all vessels, except commercial barges not carrying passengers for hire which must comply with paragraph (b)(1) of this section or make substitutions authorized by paragraph (c) of this section.
          (1) Each vessel not carrying passengers for hire and less than 40 feet in length must have on board at least one wearable personal flotation device (PFD) approved under 46 CFR subchapter Q, and of a suitable size for each person on board.
          (2) Each vessel carrying passengers for hire, and each vessel not carrying passengers for hire and 40 feet in length or longer, must have at least one PFD approved under approval series 160.055, 160.155, or 160.176, and of a suitable size for each person on board.
          (3) In addition to the equipment required by paragraphs (b)(1) and (b)(2), each vessel 26 feet in length or longer must have at least one approved lifebuoy, and each uninspected passenger vessel of at least 100 gross tons must have at least three approved lifebuoys. Lifebuoys must be approved under approval series 160.050 or 160.150, except that a lifebuoy approved under former 46 CFR 160.009 prior to May 9, 1979, may be used as long as it is in good and serviceable condition.
          (c)(1) Each vessel not carrying passengers for hire may substitute an immersion suit approved under 46 CFR 160.171 for a wearable PFD required under paragraphs (b)(1) or (b)(2) of this section.
          (2) On each vessel, regardless of length and regardless of whether carrying passengers for hire, an approved commercial hybrid PFD may be substituted for a PFD approved under approval series 160.055, 160.155, or 160.176, if it is—
          (i) Used in accordance with the conditions marked on the PFD and in the owner's manual; and
          (ii) Labeled for use on commercial vessels.

        9. In § 25.25-9, add a paragraph (c) to read as follows:

          § 25.25-9
          Storage.

          (c) For a barge to which this subpart applies, the wearable lifesaving equipment specified in 46 CFR 25.25-5 need not be stored on board the barge if the barge's operator stores it elsewhere, and ensures that each individual dons the equipment before boarding the barge and keeps it on for as long as the individual remains on board. Donned lifesaving equipment approved under 46 CFR 160.053 is acceptable for the purposes of this paragraph (c).

          PART 30—GENERAL PROVISIONS

        10. The authority citation for part 30 continues to read as follows:

          Authority:
          46 U.S.C. 2103, 3306, 3703; Pub. L. 103-206, 107 Stat. 2439; 49 U.S.C. 5103, 5106; Department of Homeland Security Delegation No. 0170.1; Section 30.01-2 also issued under the authority of 44 U.S.C. 3507; Section 30.01-05 also issued under the authority of Sec. 4109, Pub. L. 101-380, 104 Stat. 515.

          § 30.01-5
          [Amended]

        11. Amend § 30.01-5 to remove the phrase “carrying passengers or passengers for hire” from Table 30.01-5(d), column 5, rows 3 and 4, and remove the word “none” from column 5, row 6, adding in its place the phrase “All vessels not covered by columns 2, 3, 4, and 6.”

          PART 70—GENERAL PROVISIONS

        12. The authority citation for part 70 continues to read as follows:

          Authority:
          46 U.S.C. 3306, 3703; Pub. L. 103-206, 107 Stat. 2439; 49 U.S.C. 5103, 5106; E.O. 12234, 45 FR 58801, 3 CFR, 1980 Comp., p. 277; Department of Homeland Security Delegation No. 0170.1; Section 70.01-15 also issued under the authority of 44 U.S.C. 3507.

          § 70.05-1
          [Amended]

        13. Amend § 70.05-1 to remove the phrase “carrying passengers or passengers for hire” from Table 70.05-1(a), column 5, rows 3 and 4, and remove the word “none” from column 5, row 6, adding in its place the phrase “All vessels not covered by columns 2, 3, 4, and 6.”

          PART 90—GENERAL PROVISIONS

        14. The authority citation for part 90 continues to read as follows:

          Authority:
           46 U.S.C. 3306, 3703; Pub. L. 103-206, 107 Stat. 2439; 49 U.S.C. 5103, 5106; E.O. 12234, 45 FR 58801, 3 CFR, 1980 Comp., p. 277; Department of Homeland Security Delegation No. 0170.1.

          § 90.05-1
          [Amended]

        15. Amend § 90.05-1 to remove the phrase “carrying passengers or passengers for hire” from Table 90.05-1(a), column 5, rows 3 and 4, and remove the word “none.” from column 5, row 6, adding in its place the phrase “All vessels not covered by columns 2, 3, 4, and 6.”

          PART 188—GENERAL PROVISIONS

        16. The authority citation for part 188 continues to read as follows:

          Authority:
           46 U.S.C. 2113, 3306; Pub. L 103-206, 107 Stat. 2439; 49 U.S.C. 5103, 5106; E.O. 12234, 45 FR 58801, 3 CFR, 1980 Comp., p. 277; Department of Homeland Security Delegation No. 0170.1.

          § 188.05-1
          [Amended]

        17. Amend § 188.05-1 to remove the phrase “carrying passengers or passengers for hire” from Table 188.05-1(a), column 5, rows 3 and 4, and remove the word “none.” from column 5, row 6, adding in its place the phrase “All vessels not covered by columns 2, 3, 4, and 6.”

          Dated: July 9, 2013.
          J. G. Lantz,
          Director of Commercial Regulations and Standards, U.S. Coast Guard.

      [FR Doc. 2013-16955 Filed 7-16-13; 8:45 am]
      BILLING CODE 9110-04-P


        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Part 223
        [Docket No. 040412112-4112-01; I.D. 040104C]
        RIN 0648-AS02
        Endangered and Threatened Wildlife; Sea Turtle Conservation Requirements

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

          ACTION:
          Proposed rule.

          SUMMARY:
          NMFS is proposing to amend the turtle excluder device (TED) regulations that require most shrimp trawlers to use TEDs in the southeastern Atlantic and the Gulf of Mexico to reduce the incidental capture of endangered and threatened sea turtles during shrimp trawling.  Specifically, NMFS proposes to allow the use of a double cover flap TED with a modified flap design.  This modification would allow the use of a flap that extends up to 24 inches (61 cm) past the posterior edge of the TED frame.  This modification has been tested and meets the regulatory requirements for efficiency at releasing sea turtles.

          DATES:
          Written comments (see ADDRESSES) will be accepted through May 3, 2004.

          ADDRESSES:

          You may submit comments, identified by the docket number 040412112-4112-01 and/or the Regulatory Information Number (RIN) 0648-AS02, by any of the following methods: (1) E-mail: 0648-AS02.proposed@noaa.gov.  Include docket number 040412112-4112-01 and/or RIN number 0648-AS02 in the subject line of the message; (2) Federal eRulemaking Portal: http://www.regulations.gov.
          Follow the instructions for submitting comments; (3) Fax: 727-570-5517, Attention Mr. Robert Hoffman; (4) Mail: Comments on paper, disk, or CD-ROM should be addressed to the Assistant Regional Administrator for Protected Resources, NMFS Southeast Regional Office, 9721 Executive Center Drive North, Suite 102, St. Petersburg, FL 33702.
          All submissions received must include the agency name and docket number for this proposed rule.  For access to the background documents or comments received, see contact information below.

          FOR FURTHER INFORMATION CONTACT:

          Robert Hoffman (ph. 727-570-5312, fax 727-570-5517, e-mail Robert.Hoffman@noaa.gov).

        SUPPLEMENTARY INFORMATION:
        Background

        All sea turtles that occur in U.S. waters are listed as either endangered or threatened under the Endangered Species Act of 1973 (ESA).  The Kemp's ridley (Lepidochelys kempii), leatherback (Dermochelys coriacea), and hawksbill (Eretmochelys imbricata) turtles are listed as endangered.  The loggerhead (Caretta caretta) and green (Chelonia mydas) turtles are listed as threatened, except for breeding populations of green turtles in Florida and on the Pacific coast of Mexico, which are listed as endangered.
        Sea turtles are incidentally taken and killed as a result of numerous activities, including fishery trawling activities in the Gulf of Mexico and along the Atlantic seaboard.  Under the ESA and its implementing regulations, taking sea turtles is prohibited, with exceptions identified in § 223.206, or if in accordance with the terms and conditions of a biological opinion issued under section 7 of the ESA or an incidental take permit issued under section 10 of the ESA.  The incidental taking of turtles during shrimp or summer flounder trawling is exempted from the taking prohibition of section 9 of the ESA if the conservation measures specified in the sea turtle conservation regulations (50 CFR part 223) are followed.  The regulations require most shrimp trawlers and summer flounder trawlers operating in the southeastern United States (Atlantic area, Gulf area, and summer flounder sea turtle protection area, see § 223.206 to have a NMFS-approved TED installed in each net that is rigged for fishing to provide for the escape of sea turtles.  TEDs currently approved by NMFS include single-grid hard TEDs and hooped hard TEDs conforming to a generic description, the flounder TED, and one type of soft TED   the Parker soft TED (see § 223.207).
        TEDs incorporate an escape opening, usually covered by a webbing flap, that allows sea turtles to escape from trawl nets.  To be approved by NMFS, a TED design must be shown to be 97 percent effective in excluding sea turtles during testing based upon specific testing protocols (§ 223.207(e)(1)).  Most approved hard TEDs are described in the regulations (§ 223.207(a)) according to generic criteria based upon certain parameters of TED design, configuration, and installation, including height and width dimensions of the TED opening through which the turtles escape.
        February 21, 2003, Amendments to the Sea Turtle Conservation Regulations
        On February 21, 2003, NMFS issued a final rule (68 FR 8456), amending the sea turtle conservation regulations to protect large loggerhead, green, and leatherback sea turtles.  The February 2003 final rule requires that all shrimp trawlers fishing in the offshore waters of the southeastern United States (Atlantic area and Gulf area) and the inshore waters of Georgia and South Carolina use either a double cover flap TED, a single-grid hard TED with a 71-inch (180-cm) opening, or a Parker soft TED with a 96-inch (244-cm) opening in each net rigged for fishing.  In inshore waters, except those of Georgia and South Carolina, the rule allows the use of a single-grid hard TED with a 44-inch (112-cm) opening, a Parker soft TED with a 56-inch (142-cm) opening, and a hooped hard TED with a 35-inch (89-cm) by 27-inch (69-cm) escape opening.
        Since publication of the final rule, fishermen have reported that the current double cover flap TED design stretches over time.  This stretching causes a gap between the flap panels and the grid frame which causes shrimp loss.
        Since September 2003, and in accordance with § 223.207(e)(2), NMFS has issued 208 experimental permits to fishermen to test a modified double cover flap TED with longer flap panels.  This modification to the double cover flap TED was designed by NMFS gear technicians in cooperation with industry.  The modification incorporates the use of flap panels that extend 24 inches (61 cm) past the posterior edge of the TED frame and are sewn down the entire length of the outside edge of each flap panel.  The current double cover flap TED design only allows the flap panels to extend 6 inches (15 cm) past the posterior edge of the TED frame.  Interviews with permitted fishermen have indicated that the new design works well.
        Long Flap Paneled Double Cover Flap TED Testing
        NMFS tested the modified double cover flap TED using testing protocols designed to evaluate a TED's ability to release large turtles.  The protocols were developed during the testing and approval of the double cover flap TED (66 FR 24287, May 14, 2001).  NMFS used the average carapace measurements of 15 nesting female leatherback turtles to construct a pipe-framed model of a leatherback turtle.  This model measured 40 inches wide by 21 inches (102 cm by 53 cm) deep.  The test was performed by a diver swimming repeatedly through the trawl with the model and pushing it through the TED opening.  During these tests, the diver was able to push the model through the opening with ease.  When the model was inverted (simulating the dorsal surface of the turtle oriented against the TED frame), the diver was still able to push the model through the opening with ease.

        The long flap double cover flap TED was also tested for its ability to release wild turtles of a range of sizes using a modified version of the Cape Canaveral testing protocol published in the Federal Register on October 9, 1990, (55 FR 41092).  The 1990 protocol called for the use of a series of double rigged tows, in an area with a high sea turtle concentration (such as the Cape Canaveral Shipping Channel), in which one trawl is a naked net (no TED) and the other includes the experimental TED.  The catch of turtles in the naked net is compared to the captures in the net with the TED installed to determine if the TED was at least 97 percent effective at releasing turtles as required by § 223.207(e)(1).  NMFS has modified this protocol to better protect turtles and to increase its accuracy.  The modifications include the use of two trawls, each rigged with the experimental TED and a video camera mounted by the TED escape opening that can be monitored on board the research vessel.  Once the NMFS technician on board the research vessel sees a turtle encounter the TED, the turtle is given 10 minutes to escape.  If the turtle does not escape within 10 minutes, the trawl is retrieved and the turtle is released.  Any turtle that does not escape within 10 minutes is considered to have been captured.
        Using this modified Cape Canaveral protocol, NMFS tested the modified double cover flap TED off the coast of Georgia between November 13 and November 18, 2003, and in the Cape Canaveral Channel between February 19 through March 12, 2004.  In total, 33 turtles were exposed to this TED with 32 of the turtles escaping within the 10-minute exposure period for a 97 percent success rate.  The turtles exposed to the modified double cover flap TED included one leatherback, seven Kemp's ridleys, and 25 loggerheads.  The single turtle that did not escape within the 10 minute limit was a juvenile loggerhead.
        Provisions of the Proposed Rule
        The proposed rule would allow the use of a double cover flap TED with flap panels that extend between 6 inches (15 cm) but no more than 24 inches (61 cm) past the posterior edge of the grid with the use of edge lines in all areas and at all times where and when TEDs are required.  The proposed rule would only modify the existing requirements for the double cover flap TED in a permissive manner, i.e. fishermen may now use longer flaps and edge lines on double cover flap TEDs, and they are not required to change existing gear.
        Specifically, the proposed rule would allow a single-grid hard TED with the escape opening cut of at least 56 inches (142 cm) wide and 20 inches (51 cm) forward and aft, covered with a split flap composed of two equal size rectangular panels.  Each panel must be no less than 58 inches (147 cm) wide and may overlap each other no more than 15 inches (38 cm).  The panels may only be sewn together along the leading edge of the cut.  The edge of the panels may extend no more than 24 inches (61 cm) past the posterior edge of grid, and may be sewn down the entire length of the outside edge of each flap panel.  To better preserve the shape of the webbing panels over time, edge lines can be used around the edges of the unattached portion of the flap panels to help maintain the shape of the flap.  Edge lines can only be used if the flap panels are sewn down the entire length of the outside edge of each flap panel.
        Classification
        This proposed rule has been determined to be not significant for purposes of Executive Order 12866.
        NMFS prepared a draft environmental assessment/intitial regulatory impact review/Regulatory Flexibility Act analysis (EA/RIR/IRFA) for this proposed rule that evaluates the potential impact on the environment that may result from the proposed rule.  The EA/IRFA/RIR found that the implementation of this proposed rule will not have a significant impact on the quality of the human environment and that the preparation of an environmental impact statement is not necessary.
        It is estimated that 11,244 small vessels (vessels less than or equal to 60 ft (18.3 m)) and 2,368 large vessels (vessels greater than 60 ft (18.3 m)), or a total of 13,572 vessels, operate in the Southeast shrimp fishery.  Among these vessels, approximately 2,600 vessels are currently permitted to operate in the Gulf of Mexico EEZ commercial shrimp trawl fishery.  Small vessels in the Southeast shrimp trawl fishery are estimated to harvest an average of 4,752 lb (2,155 kg) of shrimp valued at $12,435 in gross revenues, requiring average variable cost expenditures of $8,708 and generating a profit of $3,727.  Large vessels in the Southeast shrimp trawl fishery are estimated to harvest an average of 42,656 pounds of shrimp valued at $142,880 in gross revenues, requiring average variable cost expenditures of $126,089 and generating a profit of $16,089.  All participants in the trawl fishery would be affected by the proposed action in that each would have the opportunity to utilize proposed gear modification.  However, the preferred alternative would not impose a requirement to use the proposed longer flaps, nor would the use of double-cover TEDs rather than other certified TED designs be required.  The proposed rule, therefore, would create options and not obligations.  Use of the proposed modified TED will require no special skills other than those currently necessary to operate in the fishery.  No duplicative, overlapping, or conflicting Federal rules have been identified.  All business entities participating in the commercial shrimp fisheries are considered small entities, so the issue of disproportionality does not arise.  The proposed rule will not impose any additional fishing restrictions on participants in the fishery.  The proposed rule would simply allow greater flexibility to select the gear configuration that best suits the operational conditions of the individual shrimping operation.  Thus, current operational behaviors, including when to shrimp, where to shrimp, and how long to shrimp, as well as where product is marketed, can continue unchanged.  Minor costs associated with additional netting necessary to extend the flaps may be incurred.  However, these costs should not impact profitability and, in fact, would only be incurred should the operator determine that the current flap dimensions result in excessive shrimp loss, such that modification would result in a net financial gain.  Thus, no reduction in profits are expected for any small entities.
        The proposed rule is not expected to result in any direct adverse economic impacts on small entities.  The issue of significant alternatives is, therefore, not relevant.  However, two alternatives were considered but not analyzed for their economic impact.  The first was to allow the longer flap, but at a maximum length of something less than 24 inches (60.96 cm).  The second was to allow the longer flap with a maximum length of 24 inches (60.96 cm) but only allow it to be sewn down each side by six inches.  Tests of the long flap double cover flap TED, with a 24-inch (60.96-cm) flap sewn all the way down both sides (the flap configuration of the preferred alternative), have shown that this flap configuration is at least 97 percent effective at releasing sea turtles; therefore, to approve either of these more restrictive alternatives would arbitrarily limit a fisherman's ability to modify his gear.  Therefore the only alternatives considered for further analysis were the preferred action and the no action alternative.  The no action alternative would maintain current flap specifications, thereby continuing reported, but unsubstantiated and unquantified, shrimp loss that results from stretching of the flaps.  This alternative, therefore, would not eliminate the unanticipated shrimp loss associated with current specifications, nor provide gear flexibility as per the NMFS' intent.
        A copy of the EA/RIR/IRFA is available from NMFS (see ADDRESSES).
        The Endangered Species Act provides the statutory basis for this proposed rule.

          List of Subjects in 50 CFR Part 223

        Endangered and threatened species, Exports, Imports, Marine mammals, Transportation.

          Dated: April 12, 2004.
          John Oliver,
          Deputy Assistant Administrator for Operations, National Marine Fisheries Service.

        For the reasons set out in the preamble, 50 CFR part 223 is proposed to be amended as follows:

          PART 223—THREATENED MARINE AND ANADROMOUS SPECIES

        1.  The authority citation for part 223 continues to read as follows:

          Authority:
          16 U.S.C. 1531 et seq.

        2.  In § 223.207, paragraphs (d)(3)(iii) is revised to read as follows:

          § 223.207
          Approved TEDs.

          (d) * * *
          (3) * * *
          (iii) Double cover flap offshore TED flap.  This flap must be composed of two equal size rectangular panels of webbing.  Each panel must be no less than 58 inches (147 cm) wide and may overlap each other no more than 15 inches (38 cm).  The panels may only be sewn together along the leading edge of the cut.  The trailing edge of each panel must not extend more than 24 inches (61 cm) past the posterior edge of the grid (Figure 16 to this part).  Each panel may be sewn down the entire length of the outside edge of each panel.  Chafing webbing described in paragraph (d)(4) of this section may not be used with this type of flap.
          (A) Edge lines. Optional edge lines can be used in conjunction with this flap.  The line must be made of polyethylene with a maximum diameter of 3/8 inches (.95 cm).  A single length of line must be used for each flap panel.  The line must be sewn evenly to the unattached, inside edges and trailing edges, of each flap panel.  When edge lines are installed, the outside edge of each flap panel must be attached along the entire length of the flap panel.
          (B) [Reserved]

        3.  In part 223, Figure 16 is revised to read as follows:
        BILLING CODE 3510-22-S

          EP16AP04.007

      [FR Doc. 04-8698 Filed 4-15-04; 8:45 am]
      BILLING CODE 3510-22-C


        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Part 648
        RIN 0648-BF82
        Magnuson-Stevens Fishery Conservation and Management Act Provisions; Fisheries of the Northeastern United States; Essential Fish Habitat

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

          ACTION:
          Notice of availability of fishery management plan amendment; request for comments.

          SUMMARY:
          The New England Fishery Management Council has submitted the Omnibus Essential Fish Habitat Amendment 2, incorporating an Environmental Impact Statement, for review by the Secretary of Commerce. NMFS is requesting comments from the public on the Omnibus Amendment, which was developed by the Council to revise the essential fish habitat designations for each Council-managed species, designate Habitat Areas of Particular Concern, revise the system of essential fish habitat management areas, address seasonal groundfish spawning spatial management, establish Dedicated Habitat Research Areas, and identify actions that can be modified by framework and other administrative concerns relating to the Amendment. The intended effect of this action is to ensure the Council's fishery management plans comply with the Magnuson-Stevens Fishery Conservation and Management Act's requirements to routinely review and update essential fish habitat designations and to continue to minimize to the extent practicable the adverse effects of fishing on such designated habitat.

          DATES:
          Public comments must be received on or before December 5, 2017.

          ADDRESSES:
          You may submit comments on this document, identified by NOAA-NMFS-2017-0123, by any of the following methods:
          • Electronic Submission: Submit all electronic public comments via the Federal e-Rulemaking Portal. Go to www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2017-0123 click the “Comment Now!” icon, complete the required fields, and enter or attach your comments.
          • Mail: Submit written comments to John K. Bullard, Regional Administrator, NMFS, Greater Atlantic Regional Fisheries Office, 55 Great Republic Drive, Gloucester, MA 01930. Mark the outside of the envelope: “Comments on Omnibus EFH Amendment.”

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

          Copies of the Omnibus Amendment, including its Environmental Impact Statement, preliminary Regulatory Impact Review, and Initial Regulatory Flexibility Analysis (EIS/RIR/IRFA), are available from the New England Fishery Management Council, 50 Water Street, Newburyport, MA 01950. The EIS/RIR/IRFA is also accessible via the Internet at: www.greateratlantic.fisheries.noaa.gov.

          FOR FURTHER INFORMATION CONTACT:

          Moira Kelly, Senior Fishery Program Specialist, (978) 281-9218; fax: (978) 281-9135, Moira.Kelly@noaa.gov.

        SUPPLEMENTARY INFORMATION:

        Background
        The Omnibus Essential Fish Habitat Amendment 2 (Omnibus EFH Amendment) was initiated to review and update the essential fish habitat (EFH) designations, the habitat area of particular concern (HAPC) designations, and the habitat-related spatial management program for the New England Fishery Management Council's suite of fishery management plans (FMP). Omnibus EFH Amendment was developed over several years, with the first half dedicated to updating the EFH designations and consideration of HAPCs. The remainder of the development was focused on revising the system of year-round closed areas, which restrict some types of fishing gear in order to protect vulnerable habitat and establish a system of Dedicated Habitat Research Areas (DHRAs). Prior to consideration of management area changes, the Council determined it was important to consider revisions to the year-round groundfish closures together because of the substantial overlap with the habitat management closures.
        The Council established 10 goals and 14 objectives to guide the development of this action. Goals 1-8 were established in 2004, at the onset of the Amendment's development, and focus on identification of EFH, fishing and non-fishing activities that may adversely affect EFH, and the development of measures and management programs to conserve, protect, and enhance EFH and to minimize to the extent practicable the adverse effects of fishing on EFH. The additional goals (9 and 10) were developed after the Council voted to incorporate revision of the groundfish closures in the Amendment. These goals are focused on enhancing groundfish productivity and maximizing the societal net benefits from groundfish.
        The 14 objectives map to 1 or more of the Amendment's goals and provide more specific guidance on how to achieve that goal. For example, the objectives include identifying new data sources upon which to base the EFH designations (Objective A), developing analytical tools for EFH designation, minimization of adverse impacts, and monitoring the effectiveness of measures (Objective D; Goals 1, 3, and 5). Other objectives include modifying fishing methods to reduce impacts (Objective E; Goal 4), supporting the restoration of degraded habitat (Objective F; Goal 4), improved groundfish spawning protection, including protection of localized spawning contingents, and improved protection of critical groundfish habitats (Goals 9 and 10). Please see Volume 1, Section 3 of the in the EIS for more details on the goals and objectives of this Amendment.
        Proposed Measures
        1. Essential Fish Habitat Designations
        The Council proposes to update the EFH designations for all species and all life stages for which more recent information is available. EFH is defined as those waters and substrate necessary to fish for spawning, breeding, feeding, or growth to maturity. EFH designations consist of two complementary elements, the text descriptions, and the map representations. Any specific area is only considered EFH if it is displayed in the EFH map and meets the conditions defined in the text description. Thus, the two components of EFH must be used in conjunction with one another when applying EFH designations to fishery management, EFH consultation, or other questions.
        A full description of the updated designations, including maps of the designations, can be found in Volume 2 of the EIS. In addition, a thorough discussion of the methods and approaches used to assemble the designations is provided in the EIS. The quality and quantity of information varied by species, so a single approach for all Council-managed species and lifestage is not possible. The Council relied upon the best available scientific information for each species.
        2. Habitat Areas of Particular Concern
        Habitat Areas of Particular Concern (HAPC) are intended to highlight specific areas of EFH that require additional consideration. HAPC designations should be based on one or more of the following criteria: (1) The importance of the ecological function provided by the habitat, including both the historical and current ecological function; (2) the extent to which the habitat is sensitive to human-induced environmental degradation; (3) whether, and to what extent, development activities are, or will be, stressing the habitat type; and (4) the rarity of the habitat type (50 CFR 600.815(a)(8)). The Council considered proposals from the public using additional criteria in designating HAPCs, including whether the designation would improve fisheries management in the exclusive economic zone, include EFH for more than one Council-managed species, include juvenile cod EFH, and meet more than one of the regulatory HAPC criteria listed above. Discussion of the areas considered and the eight criteria listed above can be found in Volume 2 of the EIS.

        The Council is recommending that the current Atlantic Salmon HAPC and the Northern Edge Juvenile Cod HAPC remain as designated because they continue to meet the criteria listed above. In addition, the Council is recommending the following areas as new HAPCs: Inshore Juvenile Cod HAPC; Great South Channel Juvenile Cod HAPC; Cashes Ledge HAPC; Jeffreys Ledge/Stellwagen Bank HAPC; Bear and Retriever Seamounts; and eleven canyon/canyon complexes (Heezen; Lydonia, Gilbert, and Oceanographers; Hydrographer; Veatch; Alvin, and Atlantis; Hudson; Toms, Middle Toms, and Hendrickson; Wilmington; Baltimore; Washington; and Norfolk). Maps and coordinates for the HAPC designations can be found in Volume 2 of the EIS.
        3. Spatial Management for Adverse Effects Minimization
        The Magnuson-Stevens Act requires that fishery management plans evaluate and minimize, to the extent practicable, the adverse effects of fishing on designated EFH. The evaluation should consider the effects of each fishing activity on each type of habitat found with EFH. Councils must prevent, mitigate, or minimize any adverse effects from fishing on EFH, to the extent practicable, if there is evidence that a fishing activity adversely affects EFH in a manner that is more than minimal and not temporary in nature. To that end, the Council is recommending the following habitat management areas (HMA) and restrictions. Full descriptions, including maps and coordinates of the Council's recommendations, can be found in Volume 3 of the EIS.
        In the Eastern Gulf of Maine, the Council recommends establishing the Small Eastern Maine HMA, closed to all mobile bottom-tending gears.
        In the Central Gulf of Maine, the Council recommends maintaining the existing Cashes Ledge Groundfish Closure Area, with its current fishing restrictions and exemptions; modifying the existing Jeffreys Bank and Cashes Ledge Habitat Closure Areas, with their current fishing restrictions and exemptions; establishing the Fippennies Ledge HMA, closed to mobile bottom-tending gear; and establishing the Ammen Rock HMA, closed to all fishing except lobster traps.
        In the Western Gulf of Maine, the Council recommends maintaining the existing Western Gulf of Maine Habitat Closure Area, closed to mobile bottom-tending gears, and modifying the eastern boundary of the Western Gulf of Maine Closure Area to align with the habitat closure area, while maintaining the current fishing restrictions and requirements for both areas. The Council also recommends creating an exemption area within the northwest corner of those closures for shrimp trawls and designating the existing Roller Gear Restricted Area requirements as a habitat protection measure.
        On Georges Bank, the Council recommends removing the year-round and habitat closures of Closed Areas I and II and replacing them with three new areas: (1) The Georges Shoal 2 HMA, closed to mobile bottom-tending gear, with a one-year delay in closure to hydraulic clam dredges; (2) the Northern Edge Reduced Impact HMA, closed to mobile bottom-tending gear, with two exceptions described below; and (3) the Northern Edge Mobile Bottom-Tending Gear HMA, closed to mobile bottom-tending gear without any exceptions. Exemptions to the Reduced Impact HMA are scallop dredge fishing in accordance with the scallop rotational area program, and trawl fishing to the west of the existing western boundary of Closed Area II (67°20′ W. long.), in what is now the Eastern Georges Bank Special Access Program. In addition, any portions of the Closed Area II groundfish closed area north of 41°30′ N. lat. would be closed to scallop fishing between June 15 and October 31 of each year. The remainder of the existing Closed Area I Habitat and Groundfish Closure Areas and Closed Area II Groundfish Closure Area would be opened, except for seasonal spawning protection as described below.
        In the Great South Channel, the Council recommends establishing the Great South Channel HMA, closed to mobile bottom-tending gear. Closure to hydraulic clam dredges would be delayed for one year, outside of the northeast corner of the area. The Council also recommends establishing two HMAs on Cox Ledge, closed to hydraulic clam dredges, and requiring no ground cables on trawls fishing in the areas. The Nantucket Lightship Habitat Closure Area and the Nantucket Lightship Closed Area would be removed.
        4. Groundfish Spawning Protections
        In the Gulf of Maine, the Council recommends establishing the Massachusetts Bay Cod Spawning Protection Area from November through January of each year and closing statistical block 125 for the first half of April each year (the “Spring Massachusetts Bay Spawning Protection Area.”) The Massachusetts Bay Spawning Protection Area would be closed to all vessels, except those that do not have a Federal Northeast multispecies permit and are fishing exclusively in state waters; that are fishing with exempted gears (Pelagic hook and line, pelagic longline, spears, rakes, diving gear, cast nets, tongs, harpoons, weirs, dipnets, stop nets, pound nets, pelagic gillnets, pots and traps, shrimp trawls (with a properly configured grate), and surfclam and ocean quahog dredges); charter/party or recreational fishing vessels, provided that pelagic hook and line gear is used, and there is no retention of regulated species or ocean pout; and vessels that are transiting. The Spring Massachusetts Bay Spawning Protection Area would be closed to all vessels, except vessels that do not have a Federal Northeast multispecies permit and are fishing exclusively in state waters; vessels fishing with exempted gears (Pelagic hook and line, pelagic longline, spears, rakes, diving gear, cast nets, tongs, harpoons, weirs, dipnets, stop nets, pound nets, pelagic gillnets, pots and traps, shrimp trawls (with a properly configured grate), and surfclam and ocean quahog dredges); vessels participating in the mid-water trawl exempted fishery; vessels participating in the purse seine exempted fishery, sea scallop dredge gear when under a scallop day-at-sea; vessels lawfully in a scallop dredge exemption area; vessels that are transiting; charter and party vessels; and recreational vessels.
        On Georges Bank, the Council recommends converting the existing groundfish closure area, Closed Area II, and the existing habitat area, Closed Area I North, into seasonal closures. Both areas would be closed from February 1 through April 15 of each year to all commercial and recreational gears that catch groundfish, except scallop dredges, vessels fishing with exempted gears, vessels participating in the mid-water trawl fishery, and vessels that are transiting.
        5. Dedicated Habitat Research Areas
        Dedicated Habitat Research Areas (DHRAs) are intended to facilitate more focused research on fishing gear impacts on habitat or other issues related to habitat and fisheries productivity. The Council is recommending two DHRAs in this amendment. The Stellwagen DHRA would be implemented with the same restrictions as the Western Gulf of Maine closed areas described above. The Georges Bank DHRA, which is the same footprint as the current Closed Area I South Habitat Closure Area, would be closed to mobile bottom-tending gear.

        The Council is recommending these DHRAs in combination with a three-year sunset provision. If approved, three years after implementation, the Regional Administrator would initiate a review of the DHRAs and the research activity being conducted within them. If no research has been conducted or initiated to further the Council's habitat-related questions, the Regional Administrator may, after consultation with the Council, remove the DHRA designation.

        6. Framework and Administrative Actions
        The Council is recommending three administrative actions as part of the Omnibus EFH Amendment. First, additional spatial management measures, including designation or removal of HMAs and changes to fishing restrictions within HMAs, would be added to the list of frameworkable items for all fisheries. Second, a strategic process would be established to routinely evaluate the boundaries, scope, characteristics, and timing of the habitat and spawning protection areas, including a technical review that evaluates the performance of these areas at 10-year intervals following implementation. A list of questions to guide this review are provided in Volume 3 of the EIS. Third, building on what the Council learned during the review of the performance of existing closed areas and the development of new EFH management in this amendment, the Council would identify and periodically revise research priorities to improve habitat and spawning area monitoring.
        Public Comment Instructions

        Public comments on the Omnibus EFH Amendment and its incorporated documents may be submitted through the end of the comment period stated in this notice of availability. A proposed rule to implement the Amendment, including draft regulatory text, will be published in the Federal Register for public comment. Public comments on the proposed rule received by the end of the comment period provided in this notice of availability will be considered in the approval/disapproval decision on the amendment. All comments received by December 5, 2017, whether specifically directed to the Omnibus EFH Amendment or the proposed rule for this amendment, will be considered in the approval/disapproval decision on the Omnibus EFH Amendment. Comments received after that date will not be considered in the decision to approve or disapprove the Amendment. To be considered, comments must be received by close of business on the last day of the comment period.

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

          Dated: October 3, 2017.
          Alan D. Risenhoover,
          Director, Office of Sustainable Fisheries, National Marine Fisheries Service.

      [FR Doc. 2017-21560 Filed 10-5-17; 8:45 am]
       BILLING CODE 3510-22-P