Federal Register Vol. 81, No.172,

I. Fifth Public Meeting of the ACCESS Committee

The fifth meeting of the ACCESS Advisory Committee will be held on September 21-23, 2016, from 9:00 a.m. to 5:00 p.m., Eastern Daylight Time. The meeting will be held at the Ritz Carlton, Pentagon City, 1250 Hayes Street, Arlington, VA 22202. At the meeting, the ACCESS Advisory Committee will continue to address whether to require accessible inflight entertainment (IFE) and strengthen accessibility requirements for other in-flight communications, whether to require an accessible lavatory on new single-aisle aircraft over a certain size, and whether to amend the definition of “service animals” that may accompany passengers with a disability on a flight. We expect to negotiate on proposals to amend the Department's disability regulation regarding one or more of these issues. Prior to the meeting, the agenda will be available on the ACCESS Advisory Committee's Web site, www.transportation.gov/access-advisory-committee. Information on how to access advisory committee documents via the FDMC is contained in Section III, below.

The meeting will be open to the public. Attendance will be limited by the size of the meeting room (maximum 150 attendees). Because space is limited, we ask that any member of the public who plans to attend the meeting notify the registration contact, Kyle Ilgenfritz ([email protected]; 703-442-4575 extension 128) at Linkvisum, no later than September 14, 2016. At the discretion of the facilitator and the Committee and time permitting, members of the public are invited to contribute to the discussion and provide oral comments.

Members of the public may submit written comments on the topics to be considered during the meeting by September 15, 2016, to FDMC, Docket Number DOT-OST-2015-0246. You may submit your comments and material online or by fax, mail, or hand delivery, but please use only one of these means. DOT recommends that you include your name and a mailing address, an email address, or a phone number in the body of your document so that DOT can contact you if there are questions regarding your submission.

To submit your comment online, go to http://www.regulations.gov, put the docket number, DOT-OST-2015-0246, in the keyword box, and click “Search.” When the new screen appears, click on the “Comment Now!” button and type your comment into the text box on the following screen. Choose whether you are submitting your comment as an individual or on behalf of a third party and then submit. 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.

To view comments and any documents mentioned in this preamble as being available in the docket, go to www.regulations.gov. Enter the docket number, DOT-OST-2015-0246, in the keyword box, and click “Search.” Next, click the link to “Open Docket Folder” and choose the document to review. 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 DOT West Building, 1200 New Jersey Avenue SE., Washington, DC 20590, between 9 a.m. and 5 p.m., E.T., Monday through Friday, except Federal holidays.

The ACCESS Advisory Committee is established by charter in accordance with the Federal Advisory Committee Act (FACA), 5 U.S.C. App. 2. Secretary of Transportation Anthony Foxx approved the ACCESS Advisory Committee charter on April 6, 2016. The committee's charter sets forth policies for the operation of the advisory committee and is available on the Department's Web site at www.transportation.gov/office-general-counsel/negotiated-regulations/charter.

In accordance with 5 U.S.C. 553(c), DOT solicits comments from the public to better inform its rulemaking process. DOT posts these comments, without edit, including any personal information the commenter provides, to www.regulations.gov, as described in the system of records notice (DOT/ALL-14 FDMS), which can be reviewed at www.dot.gov/privacy.

DOT anticipates that the ACCESS Advisory Committee will have one additional three-day meeting in Washington, DC. The sixth and final meeting is tentatively scheduled for October 12-14. Notices of all future meetings will be published in the Federal Register at least 15 calendar days prior to each meeting.

Notice of this meeting is being provided in accordance with the Federal Advisory Committee Act and the General Services Administration regulations covering management of Federal advisory committees. See 41 CFR part 102-3. Issued under the authority of delegation in 49 CFR 1.27(n).

Under the Federal Hazardous Substances Act (FHSA),1 the Consumer Product Safety Commission (CPSC or Commission) has banned all “[f]ireworks devices intended to produce audible effects . . . if the audible effect is produced by a charge of more than 2 grains of pyrotechnic composition.” 2 Pursuant to staff's Consumer Fireworks Testing Manual (Manual), Commission staff determine whether a fireworks device was intended to produce an audible effect by evaluating the relative intensity of the sound produced by such device (the Sound Test).

Through this publication, the Commission proposes to interpret the “audible effects” provision such that staff will consider the presence of metallic powder less than 100 mesh in particle size within the burst (or break) charge of a fireworks device to mean the device is intended to produce an audible effect, consistent with the American Pyrotechnic Association Standard 87-1 definition.

The Commission notes that this interpretation is not a binding rule and would not change any person's rights, duties, or obligations under the FHSA or any other Act administered by the Commission. The Commission invites comment on this proposed interpretation.

The FHSA empowers the Consumer Product Safety Commission (CPSC or Commission) to, “by regulation[,] declare to be a hazardous substance . . . any substance or mixture of substances” 3 which the Commission finds meets a series of statutory requirements. Under the FHSA, the Commission prohibits, as banned hazardous substances, the introduction into interstate commerce of all

The goal of this ban was to remove from consumer use the kinds of devices that had, as noted in the 1970 Food and Drug Administration (FDA) rulemaking that imposed the ban, “caused eight fatalities (six were teenage or younger) and a large number of serious injuries ranging from puncture wounds to broken bones and shattered hands.” 5

The Commission's rules do not further define or describe “devices intended to produce audible effects,” nor do they define how the Commission will determine whether a product falls under this category. The Manual directs Commission staff to evaluate the relative intensity of any sound produced by a firework device to determine whether such sound is an intended effect or merely incidental to the operation of the device. Any device in the former category must comply with the two grain limitation stated in the regulation.

Since the adoption of the Sound Test, there have been many developments in the fireworks market, including the use of fine-mesh metallic fuels to intensify device operation. Voluntary standards bodies, including the APA, have addressed the use of metallic fuels directly.6

Under the APA standard, “any burst [or break] charge containing metallic powder (such as magnalium or aluminum) less than 100 mesh in particle size, is considered to be intended to produce an audible effect, and is limited to 130 mg [the equivalent of two grains] in [consumer] fireworks.” 7 This provides a bright-line standard with a highly reproducible measure.

Aside from the clarity of its use as an enforcement tool, the APA standard is also familiar to industry. Not only does it reflect the work of a voluntary standard development organization in which industry members participated, it has been incorporated by reference into the Department of Transportation's regulations for the shipment of fireworks.8 Under this interpretation, CPSC will be testing fireworks devices in line with the APA standard when determining which devices are intended to produce an audible effect.

For the foregoing reasons, the Commission proposes to interpret the phrase “Fireworks devices intended to produce audible effects” in a manner consistent with the APA voluntary standard and DOT regulations. Under this interpretation, the Commission will consider the presence in the burst (or break) charge of a fireworks device of metallic powder less than 100 mesh in particle size to mean that the device is intended to produce an audible effect. Likewise, if the device lacks such metallic powder, staff will consider it as not intended to produce an audible effect. This change, as noted above, will not alter the rule or any party's obligations under it in any way, but it will allow the Commission to enforce that rule more efficiently.

The Commission requests comments on all aspects of the proposed interpretation. In particular, given the handmade nature of these products, the Commission requests comments on whether there should be an allowance for contamination at a level that would not pose an injury hazard to fireworks users or bystanders. We seek comments to determine whether we can exercise some flexibility in enforcement. We would not be setting an enforceable contamination allowance but, in an enforcement proceeding, we may consider allowing some contamination if we receive information supporting the position that inadvertent low level contamination by these metals can occur in the manufacturing process.

If so, please provide the CPSC information and data regarding what an appropriate allowance should be.

The Proposal concerns certain provisions of the Annual Report that registered CPOs are required to distribute and submit under Regulation 4.22. Among other things, it would amend these provisions: To permit the use of additional alternative generally accepted accounting principles, standards or practices; to provide for an exemption from the Annual Report audit requirement where the first fiscal year of a pool consists of a period of three months or less from the date of formation of the pool; and to clarify that a CPO must distribute and submit an audited Annual Report at least once during the life of the pool. The comment period for the Proposal is due to expire on September 6, 2016.

By letter dated August 26, 2016, the Managed Funds Association (MFA), a membership organization representing many persons who would be affected by the Proposal, requested a two-week extension of the comment period for the Proposal, such that, as extended, the comment period would expire on September 20, 2016. In support of its request, MFA explained that it is drafting comments in response to the Commission's request for comments on the Proposal and, in this regard, is seeking to provide comments representative of the views of its membership. MFA further explained that it is finding it challenging to ensure that its members have adequate time to review comments for submission by September 6, 2016, in light of previously scheduled family-related commitments which find them out-of-office during the last two weeks of August.

In light of the foregoing, and in response to the MFA request, by this Federal Register release the Commission is extending the comment period for the Proposal for two weeks, until September 20, 2016.

Background

On July 27, 2016, we published a notice of proposed rulemaking entitled “Special Local Regulation; Little Annemessex River and Somers Cove, Crisfield, MD” in the Federal Register (81 FR 17774). The rulemaking concerned the Coast Guard's proposal to establish temporary special local regulations on specified waters of Little Annemessex River and Somers Cove at Crisfield, MD, effective from 5:30 a.m. on September 17, 2016 until 10 a.m. on September 18, 2016. The regulated area included all navigable waters of the Little Annemessex River and Somers Cove, from shoreline to shoreline, bounded to the north by a line drawn from the eastern shoreline of Janes Island at latitude 37°58′39″ N., longitude 075°52′05″ W., and thence eastward to the Crisfield City Dock at latitude 37°58′39″ N., longitude 075°51′50″ W., and bounded to the south by a line drawn from Long Point on Janes Island at latitude 37°58′12″ N., longitude 075°52′42″ W., and thence eastward to Hammock Point at latitude 37°57′58″ N., longitude 075°51′58″ W., located at Crisfield, MD. The regulations were needed to temporarily restrict vessel traffic during the event to provide for the safety of participants, spectators and other transiting vessels.

The Coast Guard is withdrawing this rulemaking because the event has been cancelled.

We issue this notice of withdrawal under the authority of 33 U.S.C. 1233.

Purpose of This Regulatory Action: On December 10, 2015, President Barack Obama signed the ESSA into law. The ESSA reauthorizes the ESEA, which provides Federal funds to improve elementary and secondary education in the Nation's public schools. ESSA builds on the ESEA's legacy as a civil rights law and seeks to ensure every child, regardless of race, national origin, socioeconomic status, background, or zip code, receives the support needed to succeed in school.

As the statute affirms, the purpose of title I, part A of the ESEA is to “provide all children significant opportunity to receive a fair, equitable, and high-quality education, and to close educational achievement gaps.” 1 The requirement that title I, part A funds supplement State and local funds, and not supplant them, is a longstanding provision of ESEA intended to ensure that Federal funds provide the additional educational resources that students and teachers in high-poverty schools need to succeed. Consequently, if title I schools do not receive their fair share of State and local dollars before title I dollars are added, title I, part A funds do not serve their intended purpose of providing additional educational resources. In this situation, instead of providing the extra, supplemental funding needed to serve disadvantaged students, they simply compensate for shortfalls in the State and local funds that title I schools receive. Failure to ensure compliance with the supplement not supplant provisions in the law hurts students in title I schools, who are among those most in need of additional support. This principle is fundamental to the law and to its legacy as a civil rights law.

Data show that approximately 90 percent of local educational agencies (LEAs) provide each title I school as much per pupil as the average of non-title I schools in the LEA. However, in hundreds of LEAs across the country, title I schools are receiving, on average, hundreds of thousands of dollars less in State and local funding than the average non-Title I school. These are critical funds that could be spent on, for example, wrap-around services, high-quality preschool, access to advanced coursework, or incentive pay for educators who choose to work in high-need schools. The general requirement that title I, part A funds supplement and do not supplant State and local funds has been part of title I, part A of the ESEA since 1970. This requirement in the law is intended to provide disadvantaged students with additional resources over and above what they receive through State and local funding streams for education. The requirement arose from the findings of a landmark report published in 1969 with support from the National Association for the Advancement of Colored People (NAACP) Legal Defense and Education Fund titled: Title I of ESEA: Is it Helping Poor Children?. 2 That report revealed case after case of egregious misuses of title I funds by States and LEAs, including one example from Mississippi where a superintendent averred in Federal court that the highest per-pupil expenditure for schools serving black students in the district was about half of the lowest per-pupil expenditure in schools attended primarily by white students. Due in large measure to the findings from this report, the supplement not supplant provisions for title I, part A were added to the law during the 1970 reauthorization of the ESEA. However, in the years subsequent to the inclusion of this critical safeguard, LEAs struggled with ways to demonstrate compliance with the provision in the statute and oftentimes relied on burdensome practices that worked against the intended purpose of title I funding.

The ESSA presents a significant, positive improvement in this respect, as it changed the manner in which an LEA must comply with this requirement. Prior to the passage of the ESSA, the statute lacked a clear standard for how to demonstrate compliance with the supplement not supplant requirement. Most LEAs met the requirement by demonstrating that each cost or service paid for using title I, part A funds was supplemental. This burdensome practice often limited local education officials' ability to spend title I funds in ways that would best meet the needs of low-achieving students. For example, an LEA often pulled students out of their regular classroom to provide remedial services in order to clearly demonstrate that they were supplemental, regardless of whether this was in the best interest of the students receiving those services.

The new ESSA statutory language focuses not on costs and services, but on funds. Specifically, section 1118(b) of the ESEA requires that an LEA “demonstrate that the methodology used to allocate State and local funds to each [title I school] ensures that such school receives all of the State and local funds it would otherwise receive if it were not receiving assistance under [title I].”

Importantly, States and LEAs need not shift resources among schools in order to comply with this provision, but instead may elect to provide additional State and local educational funding to title I schools to ensure compliance with the supplement not supplant provision of the law.

This is the first time that the supplement not supplant requirement contains a statutory directive regarding how an LEA must demonstrate compliance with the requirement. For this reason, the Department proposes these regulations to provide clarity about how LEAs can demonstrate that the distribution of State and local funds satisfies the funds-based compliance test introduced in the law.

At the same time, the ESSA prohibits the Secretary from prescribing the specific methodology an LEA uses to allocate State and local funds to each school, and the proposed regulations would not establish such a specific methodology. Instead, they would clarify that an LEA must publish its methodology for allocating State and local funds and clarify how the LEA can make the demonstration required by this section of the ESEA and ensure that funds under title I, part A are used to supplement, and not supplant, State and local funds, while also providing the flexibility needed to implement the requirement in a meaningful way. The proposed regulations reflect input provided by negotiators during negotiated rulemaking and feedback received from the public subsequent to the final negotiated rulemaking session, while also building upon the non-regulatory guidance the Department issued in 2015 on the supplement not supplant requirement as applied to schoolwide title I, part A programs, which can be accessed at: http://www2.ed.gov/policy/elsec/guid/eseatitleiswguidance.pdf.

Summary of the Major Provisions of This Regulatory Action: For the title I, part A program, we propose new regulations governing supplement not supplant that would:

• Restate the general requirement under section 1118(b)(1) that a State educational agency (SEA) or an LEA use title I, part A funds only to supplement, and not supplant, State and local funds.

• Incorporate the requirement under section 1118(b)(2) of the ESEA that an LEA must demonstrate that the methodology used to allocate State and local funds to each title I school ensures that such school receives all of the State and local funds it would otherwise receive if it were not a title I school.

• Clarify that an LEA may demonstrate compliance with the preceding requirement under the ESEA in a number of ways.

• Provide numerous flexibilities to ensure that an LEA can implement the requirement in a way that reflects local needs, circumstances, and decision-making.

• Clarify the implementation timeline for the proposed regulations.

Costs and Benefits: Although the Department estimates approximately 90 percent of LEAs already meet the requirements of this proposed regulation through the special rule, some LEAs would need to increase funding for some title I schools either by increasing total funding or by redirecting funding within the LEA. Given that some LEAs would need to increase funding for some title I schools, this regulation meets the test for economic significance, as explained in the Regulatory Impact Analysis section of this document, which describes costs, transfers, and benefits of the proposed regulations. We further believe that the proposed regulations would provide a significant benefit by promoting transparency in State and local education spending, and by simplifying and clarifying the test for compliance with the supplement not supplant requirement in the ESEA, which is designed to ensure that Federal education funds provided through the title I, part A program meet their statutory purpose. Please refer to the Regulatory Impact Analysis section of this document for a more detailed discussion of costs and benefits. Consistent with Executive Order 12866, the Office of Management and Budget has determined that this action is economically significant.

Invitation to Comment: We invite you to submit comments regarding these proposed regulations. To ensure that your comments have maximum effect in developing the final regulations, we urge you to identify clearly the specific section or sections of the proposed regulations that each of your comments addresses and to arrange your comments in the same order as the proposed regulations.

We invite you to assist us in complying with the specific requirements of Executive Orders 12866 and 13563 and their overall requirement of reducing regulatory burden that might result from these proposed regulations. Please let us know of any further ways we could reduce potential costs or increase potential benefits while preserving the effective and efficient administration of the Department's programs and activities.

During and after the comment period, you may inspect all public comments about these proposed regulations by accessing Regulations.gov. You may also inspect the comments in person in 3W246, 400 Maryland Ave. SW., Washington, DC, between 8:30 a.m. and 4:00 p.m., Washington, DC time, Monday through Friday of each week except Federal holidays. Please contact the person listed under FOR FURTHER INFORMATION CONTACT.

Particular Issues for Comment: We request comments from the public on any issues related to these proposed regulations. However, we particularly request the public to comment on, and provide additional information regarding, the following issue. Please provide a detailed rationale for your response.

• Whether we should expand the flexibility available to an LEA that chooses to use the special rule, including to expand the categories of expenditures that disproportionately affect the amount of State and local funds allocated on average for non-title I schools, as contemplated in § 200.72(b)(1)(iii)(C).

Assistance to Individuals with Disabilities in Reviewing the Rulemaking Record: On request we will provide an appropriate accommodation or auxiliary aid to an individual with a disability who needs assistance to review the comments or other documents in the public rulemaking record for these proposed regulations. If you want to schedule an appointment for this type of accommodation or auxiliary aid, please contact the person listed under FOR FURTHER INFORMATION CONTACT.

On December 22, 2015, the Department published a request for information in the Federal Register soliciting advice and recommendations from the public on the implementation of title I of the ESEA. We received 369 comments. We also held two public meetings with stakeholders—one on January 11, 2016, in Washington, DC and one on January 19, 2016, in Los Angeles, California—at which we heard from over 100 speakers regarding the development of regulations, guidance, and technical assistance related to the implementation of title I. In addition, Department staff have held more than 200 meetings with education stakeholders and leaders across the country to hear about areas of interest and concern regarding implementation of the new law.

Section 1601(b) of the ESEA requires the Secretary, before publishing proposed regulations for programs authorized by title I, part A of the ESEA, to obtain public involvement in the development of the proposed regulations. After obtaining advice and recommendations from individuals and representatives of groups involved in, or affected by, the proposed regulations, the Secretary must subject any proposed regulations related to standards or assessments under section 1111(b)(2) of the ESEA, as well as the requirement under section 1118(b) that funds under part A be used to supplement, and not supplant, State and local funds, to a negotiated rulemaking process.

On February 4, 2016, the Department published a notice in the Federal Register (81 FR 5969) announcing our intent to establish a negotiated rulemaking committee to develop proposed regulations to implement certain changes made to the ESEA by the ESSA. We announced our intent to establish a negotiating committee to prepare proposed regulations related to the requirement under section 1118(b) of the ESEA that title I, part A funds be used to supplement, and not supplant, non-Federal funds, specifically:

(i) Regarding the methodology an LEA uses to allocate State and local funds to each title I school to ensure compliance with the supplement not supplant requirement; and

(ii) The timeline for compliance.

The committee met in three sessions to develop proposed regulations, which also included proposals related to assessments under section 1111(b)(2) of the ESEA: Session 1, March 21-23, 2016; session 2, April 6-8, 2016; and session 3, April 18-19, 2016.

The committee included the following members:

Tony Evers and Marcus Cheeks, representing State administrators and State boards of education.

Alvin Wilbanks, Derrick Chau, and Thomas Ahart (alternate), representing local administrators and local boards of education.

Aaron Payment and Leslie Harper (alternate), representing tribal leadership.

Lisa Mack and Rita Pin-Ahrens, representing parents and students, including historically underserved students.

Audrey Jackson, Ryan Ruelas, and Mary Cathryn Ricker (alternate), representing teachers.

Lara Evangelista and Aqueelha James, representing principals.

Eric Parker and Richard Pohlman (alternate), representing other school leaders, including charter school leaders.

Lynn Goss and Regina Goings (alternate), representing paraprofessionals.

Delia Pompa, Ron Hager, Liz King (alternate), and Janel George (alternate), representing the civil rights community, including representatives of students with disabilities, English learners, and other historically underserved students.

Kerri Briggs, representing the business community.

Patrick Rooney and Ary Amerikaner (alternate), representing the U.S. Department of Education.

The committee's protocol provided that it would operate by consensus, which meant unanimous agreement; that is, without dissent by any voting member. During its meetings, the committee reviewed and discussed drafts of proposed regulations. At the final meeting in April 2016, the committee did not reach consensus on the proposed regulations relating to the requirement under section 1118(b) of the ESEA that title I, part A funds be used to supplement, and not supplant, State and local funds.

Because consensus was not reached, the Department may use regulatory language developed during the negotiations as the basis for the proposed regulations, or develop new regulatory language for all or a portion of the proposed regulations; and all parties who participated or were represented in the negotiated rulemaking, as well as all members of the public, may comment freely on the proposed regulations. In addition, as required under section 1601(c)(1) of the ESEA, on August 12, 2016, the Department submitted the proposed regulations to the Committee on Health, Education, Labor, and Pensions of the Senate, and the Committee on Education and the Workforce in the House of Representatives for a 15 business-day comment period. The Department will include and seek to address comments received from Congress in the public rulemaking record for these regulations. Further information on the negotiated rulemaking process may be found at: http://www2.ed.gov/policy/elsec/leg/essa/index.html.

The Secretary proposes new regulations in 34 CFR part 200 to implement programs under title I, part A of the ESEA. We discuss substantive issues under the sections of the proposed regulations to which they pertain.

Statute: Section 1118(b) of the ESEA requires that an SEA and LEA use the funds that each receives under part A of title I only to supplement, and not supplant, the funds made available from State and local sources for the education of students in title I schools.

According to the statutory language of the ESEA, to meet the supplement not supplant requirement an LEA must demonstrate that the methodology it selects for allocating State and local funds results in each title I school receiving all of the State and local funds that it would otherwise receive if it were not receiving title I funds. The statute also clarifies that an LEA is not required to: (1) Identify that an individual cost or service supported with funds it receives under title I, part A is supplemental; or (2) provide services through a particular instructional method or in a particular instructional setting. Further, the statute specifically prohibits the Department from prescribing the specific methodology that an LEA must use to allocate State and local funds.

Section 1118(b)(5) establishes December 10, 2017, as the deadline by which an LEA must demonstrate to its SEA compliance with the supplement not supplant requirement. Before December 10, 2017, an LEA may continue to use its existing method for complying with the supplement not supplant requirement.

Current Regulations: None.

Proposed Regulations: The proposed regulations would incorporate new statutory provisions and clarify the basic responsibilities an SEA or LEA has in ensuring that the funds received under title I, part A are used only to supplement, and not to supplant, State and local funds that are made available to support the education of students in title I schools.

Proposed § 200.72(a)(1)(i) would incorporate the statutory requirement that an SEA or LEA must use title I, part A funds only to supplement State and local funds that would, in the absence of title I, part A funds, be made available for the education of students in title I schools. Proposed § 200.72(a)(1)(ii) would establish that an SEA or LEA may not use title I, part A funds to supplant State and local funds.

Proposed § 200.72(a)(2)(i) would make clear that an LEA is not required to identify an individual cost or service supported with funds under title I, part A as supplemental, and proposed § 200.72(a)(2)(ii) would clarify that an LEA is not required to use title I, part A funds to provide services through a particular instructional method or in a particular instructional setting.

Proposed § 200.72(b)(1)(i) would clarify that an LEA must demonstrate annually to its SEA that the methodology it uses to allocate State and local funds to each title I school ensures that each title I school receives all of the State and local funds that it would receive if it were a non-title I school. Under the proposed regulations, an SEA must establish the time and form for the annual LEA demonstration. Also, an LEA would need to publish its methodology in a manner easily accessible to the public.

Proposed § 200.72(b)(1)(ii) would clarify that an LEA must allocate almost all State and local education funds to all of its public schools—regardless of title I status—in a way that meets one of the following tests: (A) The actual distribution of funds is based on the characteristics of students in each school, providing more funding for students with characteristics associated with educational disadvantage including students living in poverty, English learners, students with disabilities, and other such subgroups of students chosen by the LEA; (B) the actual distribution of funds is based on a districtwide formula for allocation of personnel and non-personnel resources, provided that the total amount going to each title I school is at least equal to the sum of the amount of personnel costs expected based on the districtwide average salary for each category of school personnel and the average district-wide per pupil expenditure for non-personnel costs; or (C) the distribution of funds through any other approach that meets a funds-based compliance test established by the SEA that is as rigorous as (A) or (B) and is approved through Federal peer review that relies on peers such as professionals with expertise in school finance, State and local education officials, and individuals who represent the interests of special populations of students. An SEA would not be required to establish such a test. Moreover, an LEA would not be required to use the SEA's test if the LEA complies with one of the other two options or the special rule discussed below.

To meet one of these tests, an LEA may create a specific funding methodology to best address its local context and need. Under any methodology, an LEA may exclude certain funding used for districtwide activities, as provided in proposed § 200.72(b)(2)(iv), provided that each title I school receives a share of those activities equal to or greater than the share it would otherwise receive if it were not a title I school. For example, an LEA might exclude State or local funds used for districtwide administrative costs, to implement a districtwide summer school or preschool program, or personnel providing districtwide services such as curriculum development or data analysis.

In addition, proposed § 200.72(b)(1)(iii) establishes a “special rule” that an LEA may use to meet the compliance test, rather than using one of the three options described above. Recent school-level expenditure data from the 2013-2014 school year show that approximately 90 percent of LEAs currently would meet the special rule. However, in approximately 1,500 LEAs, 5,750 title I schools spend significantly less State and local funding than non-title I schools in the same grade span (e.g., high schools or elementary schools) in the same LEA. Each year, these title I schools receive hundreds of thousands of dollars less in State and local funding than their non-title I counterparts in the same LEA—$440,000 per year, on average, or a median of roughly $200,000 per year.3 These data suggest that in thousands of schools serving high-need students, title I, part A funds are being used, at least in part, to make up for underfunding at the State and local level, rather than providing truly supplemental funds.4

Under the “special rule” option, the LEA simply would demonstrate, regardless of the methodology it uses to allocate State and local funds to title I schools, that it spends an amount of State and local funds on a per-pupil basis in each title I school that is equal to or greater than the average per-pupil amount spent in non-title I schools, using data reported under section 1111(h)(1)(C)(x) of the ESEA. The proposed special rule also would allow for de minimis variations in annual expenditures, such that an LEA would be in compliance with the special rule provision if the amount it spends per pupil in each title I school is no more than 5 percent below the average amount it spends per pupil in non-title I schools. In addition, proposed § 200.72(b)(1)(iii)(B) would allow an LEA using the special rule provision to exclude from the calculation of its per-pupil spending funds spent in a school that enrolls fewer than 100 students, while proposed § 200.72(b)(1)(iii)(C) would allow such an LEA to comply using the special rule provision if a non-title I school serving high proportions of students with disabilities, English learners, or students from low-income families has higher per-pupil expenditures due to serving those students and disproportionately affects the average amount of State and local funds spent in non-title I schools in the LEA or grade span.

Proposed § 200.72(b)(2) provides flexibilities that an LEA may use in demonstrating compliance with the ESEA's supplement not supplant requirement. Specifically:

• Proposed § 200.72(b)(2)(i) would establish that an LEA may comply with the supplement not supplant requirement on a districtwide or grade-span basis (e.g., high schools, elementary schools).

• Proposed § 200.72(b)(2)(ii) would exempt an LEA from complying with the supplement not supplant requirement if it serves only a single school or in any grade span in which it serves only a single school.

• Proposed § 200.72(b)(2)(iii) would clarify that, consistent with section 1118(d) of the ESEA, an LEA may exclude from its demonstration of compliance supplemental State and local funds expended in any school—including a non-title I school—for programs that meet the intent and purposes of title I, part A (e.g., a State-funded program providing additional services only for students most at risk of not meeting challenging State academic standards).

• Proposed § 200.72(b)(2)(iv) would allow an LEA that spends State or local funds for certain districtwide activities to exclude those funds from its demonstration of compliance, provided that each title I school receives a share of those activities equal to or greater than it would otherwise receive if it were not a title I school and that the LEA distributes to schools under paragraph (b)(1) almost all of the State and local funds available to it. It would further clarify that districtwide activities may include, for example, districtwide administrative costs, districtwide programs such as summer school or preschool, and personnel providing districtwide services such as curriculum development or data analyses but may not include personnel or non-personnel resources associated with an individual school.

Proposed § 200.72(b)(3)(i) would clarify the timeline for meeting the new compliance test required by the ESEA. By December 10, 2017, an LEA would be required to either (1) demonstrate to its SEA that its current methodology for allocating State and local funds meets the new supplement not supplant requirement, or (2) provide to its SEA a plan describing how it would meet that requirement no later than the 2019-2020 school year.

Proposed § 200.72(b)(3)(ii) would clarify that, during the transition to the new title I, part A supplement not supplant requirement under the ESEA, an LEA would be able to use either (1) the methodology it will use to comply with the new supplement not supplant requirement, or (2) the methodology it used for complying with the requirement as it existed prior to enactment of the ESSA.

Proposed § 200.72(b)(4) would clarify that nothing in the proposed regulation shall be construed to require the forced or involuntary transfer of school personnel. It would further clarify that, consistent with section 1605 of the ESEA, the proposed regulation would not require equalized per-pupil spending for a State, LEA, or school. It would make clear that nothing in the proposed regulations would require an LEA to adopt a specific methodology to allocate State and local funds to comply with the supplement not supplant requirement. Finally, proposed § 200.72(b)(4) would make clear that nothing in the proposed regulations would alter or otherwise affect the rights, remedies, and procedures afforded to school or LEA employees under Federal, State, or local laws (including applicable regulations or court orders) or under the terms of collective bargaining agreements, memoranda of understanding, or other agreements between such employers and their employees.

Reasons: We propose these regulations to implement the changes made by the ESSA to the supplement not supplant requirement of title I, part A of the ESEA. The proposed regulations would ensure that title I funds are used to fulfill their statutory purpose—that is, to “provide all children significant opportunity to receive a fair, equitable, and high-quality education, and to close educational achievement gaps”—instead of making up for inequitable allocations of State and local funding to title I schools. The proposed regulations also would provide LEAs the flexibility necessary to implement this requirement in a manner that accounts for local needs and circumstances while respecting the core purpose of the statute. Finally, the proposed regulations would clarify that previous burdensome compliance tests—related to justifying individual expenditures of title I funds—are no longer required.

While section 1118(b) of the ESEA establishes that, to comply with the supplement not supplant requirement, an LEA must demonstrate that it uses a methodology to allocate State and local funds that ensures that each title I school receives the same amount of those funds as it would if it were not receiving title I funding, the statute does not indicate how an LEA is to make this demonstration. Some stakeholders, including some members of the negotiating committee, expressed an interest in clear requirements so that LEAs know exactly how they are expected to comply, and so that auditors are not forced to make ad hoc decisions on what constitutes an appropriate demonstration of compliance with the statute that could vary significantly from LEA to LEA and potentially have an unfair impact on students, schools, and LEAs. Some stakeholders expressed support for the Department's proposal during the negotiated rulemaking process that would have required that an LEA receiving title I funds demonstrate that each title I school spend at least as much per pupil in State and local funding as the average spent in non-title I schools in the LEA. However, other negotiators expressed strong concern that this may not be the only appropriate test of compliance with the supplement not supplant requirement. Many of those who expressed such concern also expressed support for the examples in the supplement not supplant section of the Department's 2015 non-regulatory guidance on schoolwide title I, part A programs, from which we drew in the development of this proposed rule. Some negotiators also expressed support for using a proposed rule to simply ensure transparency regarding an LEA's methodology for allocating State and local funds. Finally, some negotiators recommended not regulating on this provision of the law at all.

The proposed regulations would require transparency in how an LEA allocates State and local funds, and would provide LEAs with three distinct options to demonstrate compliance with the requirement, including the two options outlined in the 2015 schoolwide program guidance as well as an SEA-developed funds-based compliance test that would be approved through a Federal peer review process. The first two options would allow for the demonstration of compliance through funds-based methodologies that direct resources to all public schools in an LEA on the basis of student characteristics or through the allocation of staffing and supplies. The third option was added in order to maximize flexibility for innovative approaches, consistent with the funds-based requirement established by the ESSA, that ensure LEAs are using title I funds to supplement State and local funds.

The proposed regulations would require that an LEA distribute almost all State and local funds through one of the three methodologies. This recognizes that some portion of State and local funding may not be allocated through general formulas because it is used for districtwide activities under proposed § 200.72(b)(2)(iv).

The proposed regulations would also provide an LEA the choice of complying with the supplement not supplant requirement via a “special rule” instead of one of the three options described above. The special rule builds upon the Department's proposal from negotiated rulemaking. During the negotiated rulemaking process, the negotiators raised important considerations about special circumstances that would require flexibility when implementing the special rule of the proposed regulations. To address these concerns, proposed § 200.72(b)(1)(iii) would:

• Provide that the special rule is met if the amount an LEA spends per pupil in each title I school is no more than 5 percent below the average amount it spends in non-title I schools, which would enable LEAs to develop and implement a methodology consistent with the supplement not supplant requirement while allowing for small and unpredictable shifts in costs from year to year;

• Allow an LEA electing to use the special rule to exclude the costs of educating students in schools that enroll fewer than 100 students. Data collected by the Department indicate that schools that educate between 1 and 49 students spend about 60 percent more per student than the national average, and schools that educate 50 to 99 students spend about 45 percent more than the national average; 5 and

• Provide an opportunity for an LEA to comply with the special rule if the average per-pupil expenditures in non-title I schools is disproportionately impacted by a school serving a high proportion of students with disabilities, English learners, or students from low-income families. This opportunity is designed to ensure that an LEA may continue providing such additional support in a school that serves a disproportionate proportion of these high-need students and is not receiving title I funds.

The negotiators also identified possible complexities in LEA funding systems that merit additional flexibility. Consequently, all of the options provided in proposed § 200.72(b)(1)(ii) as well as the special rule provision in proposed § 200.72(b)(1)(iii) include flexibilities in § 200.72(b)(2) that would:

• Allow an LEA to demonstrate compliance on a districtwide or grade-span basis, because the costs of operating a high school frequently differ from the costs of operating an elementary school;

• Exempt an LEA with a single school or a single school per grade span from the requirement;

• Consistent with section 1118(d) of the ESEA, allow an LEA to exclude supplemental State or local funds spent for programs that are consistent with the intent and purposes of title I, part A (e.g., a State-funded program providing additional services only for students most at risk of not meeting State standards) from its demonstration of compliance with the ESEA's supplement not supplant requirement; and

• Allow an LEA to exclude funds used for districtwide activities from its demonstration of compliance, provided that the LEA ensures that each title I school receives an equal or greater share of those districtwide activities as it would receive if it were a non-title I school and the LEA distributes to schools under paragraph (b)(1) almost all of the State and local funds available to it.

The Department acknowledges that, in some LEAs, compliance with the new supplement not supplant requirement under the ESEA will require shifts in spending and budgeting practices, and that making these shifts may not be possible before December 10, 2017. Therefore, the proposed regulations would allow an LEA unable to comply by December 10, 2017, to provide and implement a plan to come into compliance by the 2019-2020 school year.

Finally, the Department includes four rules of construction. The first would clarify that these regulations should not be construed to require the forced or involuntary transfer of any school personnel. We encourage an LEA to consider all available options to meet the supplement not supplant requirement under the ESEA, including, for example, improving working conditions in high-poverty and hard-to-staff schools to attract the best and best-paid educators, providing additional compensation or some other incentive to educators in high-poverty and hard-to-staff schools, and increasing wrap-around services or other resources in high-poverty and hard-to-staff schools, such as school counselors, school-based health providers, extended learning time, or high-quality preschool opportunities. Whichever strategies an LEA chooses, the Department encourages the LEA to comply with this requirement through increasing funding focused on high-poverty, hard-to-staff schools.

The second rule of construction would clarify that the proposed regulations do not require equalized spending per-pupil for a State, LEA, or school. The proposed regulations contemplate variations in per-pupil spending across schools—for example, an LEA taking advantage of the special rule provision would likely have (1) variation in spending among title I schools, so long as each was above the average per pupil expenditures for non-title I schools, (2) variation in spending among non-title I schools, which would be averaged to determine the average per pupil expenditures in non-title I schools, (3) variation in spending across grade-spans, and (4) higher spending in very small schools that are exempted from the calculations altogether. Similarly, an LEA choosing to use a weighted student funding formula would have variation across schools depending on the characteristics of each school's student population. And an LEA choosing to allocate personnel and non-personnel resources is likely to have wide variation in spending depending upon the specifics of the district's formula (e.g., whether the formula allocates varied numbers of staff per student in elementary schools compared to high schools; whether the formula “counts” students with disabilities as “1.2” students or “1.4” students). The rule of construction would clarify that an LEA is not limited to formulations that would require spending identical sums of money per pupil in each school. The third rule of construction would make clear that nothing in the proposed regulations would require an LEA to adopt a specific methodology to allocate State and local funds to comply with the supplement not supplant requirement in violation of section 1118(b)(4) of the ESEA.

The fourth rule of construction would clarify that nothing in the proposed regulations would alter or otherwise affect the rights, remedies, and procedures afforded to school or LEA employees under Federal, State, or local laws (including applicable regulations or court orders) or under the terms of collective bargaining agreements, memoranda of understanding, or other agreements between such employers and their employees.

Under Executive Order 12866, the Office of Management and Budget must determine whether this regulatory action is “significant” and, therefore, subject to the requirements of the Executive order and subject to review by the Office of Management and Budget (OMB). Section 3(f) of Executive Order 12866 defines a “significant regulatory action” as an action likely to result in a rule that may—

(1) Have an annual effect on the economy of $100 million or more, or adversely affect a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities in a material way (also referred to as an “economically significant” rule);

(2) Create serious inconsistency or otherwise interfere with an action taken or planned by another agency;

(3) Materially alter the budgetary impacts of entitlement grants, user fees, or loan programs or the rights and obligations of recipients thereof; or

(4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles stated in the Executive order.

This proposed regulatory action is an economically significant regulatory action subject to review by OMB under section 3(f)(1) of Executive Order 12866. This determination is based on the Department's estimate that LEAs currently not able to demonstrate compliance with the supplement not supplant requirements of the proposed rule may have to transfer approximately $800 million in existing State and local education funds to demonstrate such compliance. This potential transfer is deemed an economically significant transfer under section 3(f)(1) of Executive Order 12866.

We have also reviewed these regulations under Executive Order 13563, which supplements and explicitly reaffirms the principles, structures, and definitions governing regulatory review established in Executive Order 12866. To the extent permitted by law, Executive Order 13563 requires that an agency—

(1) Propose or adopt regulations only on a reasoned determination that their benefits justify their costs (recognizing that some benefits and costs are difficult to quantify);

(2) Tailor its regulations to impose the least burden on society, consistent with obtaining regulatory objectives and taking into account—among other things and to the extent practicable—the costs of cumulative regulations;

(3) In choosing among alternative regulatory approaches, select those approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity);

(4) To the extent feasible, specify performance objectives, rather than the behavior or manner of compliance a regulated entity must adopt; and

(5) Identify and assess available alternatives to direct regulation, including economic incentives—such as user fees or marketable permits—to encourage the desired behavior, or provide information that enables the public to make choices.

Executive Order 13563 also requires an agency “to use the best available techniques to quantify anticipated present and future benefits and costs as accurately as possible.” The Office of Information and Regulatory Affairs of OMB has emphasized that these techniques may include “identifying changing future compliance costs that might result from technological innovation or anticipated behavioral changes.”

We are issuing these proposed regulations only on a reasoned determination that their benefits would justify their costs. In choosing among alternative regulatory approaches, we selected those approaches that maximize net benefits. Based on the analysis that follows, the Department believes that these proposed regulations are consistent with the principles in Executive Order 13563.

We also have determined that this regulatory action would not unduly interfere with State, local, and tribal governments in the exercise of their governmental functions.

In accordance with both Executive orders, we have assessed the potential costs and benefits, both quantitative and qualitative, of this regulatory action and have determined that the benefits would justify the costs.

The potential costs associated with the proposed regulations are those resulting from statutory requirements and those we have determined as necessary for administering these programs effectively and efficiently. The proposed regulations would implement new statutory requirements in the ESEA related to demonstrating compliance with the longstanding supplement not supplant requirement. More specifically, under the ESEA, an LEA must “demonstrate that the methodology used to allocate State and local funds for each [title I school] ensures that such school receives all of the State and local funds it would otherwise receive if it were not receiving assistance under [title I, part A].” The proposed regulations would not require a specific methodology for allocating funds, but would require that the methodology selected and used by each LEA results in an actual distribution of funds consistent with the statutory requirement that each school participating in title I, part A receives all of the State and local funds it would otherwise receive if it were not a title I school, while also providing flexibility designed to accommodate local circumstances that might reasonably affect an LEA's ability to meet the supplement not supplant requirement.

The Department estimates that at least 90 percent of LEAs would comply with the proposed regulations without any change in current allocation practices.6 These LEAs would be able to demonstrate compliance through the special rule option, which allows an LEA to choose any methodology that results in the LEA spending an amount of State and local funds per pupil in each title I school that is equal to or greater than the average amount of State and local funds spent per pupil in non-title I schools, using per-pupil expenditure data they will be required to collect and report under section 1111(h)(1)(C)(x) of the ESEA. In general, the Department believes that the flexibility afforded to LEAs by the proposed regulations in demonstrating compliance with the title I, part A supplement not supplant requirement would minimize the administrative costs and burdens of complying with the proposed regulations. The Department also believes that, once fully implemented, the proposed regulations would be significantly less burdensome and costly in comparison to the requirements of current law, which often involve detailed tracking and documentation of individual education expenditures.

The proposed regulations would not require the expenditure of additional State or local funds in title I schools; rather, an LEA could meet one of the proposed compliance tests through the reallocation of existing State and local resources. For example, the Department estimates that the approximately 1,500 LEAs currently spending, on average, more State and local funds in their non-title I schools than their title I schools would need to transfer approximately $800 million in State and local education funds to their title I schools in order to meet the special rule in the proposed regulations. The average percentage of State and local dollars that would need to be reallocated by affected LEAs is estimated to be 1 percent. We note that the total dollars that would be required to be redistributed under the proposed regulations represent just over one-tenth of one percent of the more than $600 billion that State and local communities spend annually on public elementary and secondary education.

Instead of transferring funds, affected LEAs and the States in which they are located may elect to increase State and local expenditures to meet the supplement not supplant requirement of the proposed regulations. If all affected LEAs do this, the total additional funding required is estimated to be approximately $2.2 billion, or an increment of roughly one-third of one percent over current State and local spending on public elementary and secondary schools. The Department notes that while the proposed regulations would not require the expenditure of additional State or local funds to demonstrate compliance, doing so would ensure additional support for students and teachers in title I schools consistent with the supplement not supplant requirement, while avoiding any reduction in financial support for students and teachers in non-title I schools.

The Department does not have sufficient data to support detailed estimates of the impact of using either the districtwide pupil characteristics formula test or the districtwide personnel and non-personnel resource formula test to demonstrate compliance with the proposed supplement not supplant requirement. However, the Department believes that under either approach, the total amount of existing funds that affected LEAs would have to transfer, or the additional expenditure of State or local funds that would be required, would be similar to the estimates provided for the special rule, based on estimating the differences in funding between each title I school and the districtwide average funding. Similarly, the Department cannot provide an estimate of the impact of any State-determined option for compliance, but also believes that the total amount of existing funds that affected districts would have to transfer, or the additional expenditure of State or local funds that would be required, would be similar under this option, given that any such State-determined option must be “as rigorous” as the other options.

States and LEAs would incur certain administrative costs under the proposed regulations. For example, while it is difficult to predict the number of States that would elect to develop their own, alternative compliance tests, the Department estimates that 15 States would incur additional one-time costs of developing or adopting and submitting an alternative funds-based compliance test for Federal peer review and approval that then could be used by LEAs to demonstrate compliance with the proposed supplement not supplant requirements. The Department further estimates that these 15 States would need, on average, 48 hours to prepare and submit such an alternative funds-based compliance test for peer review. At $40 per hour, the average cost per State would be $1,920, resulting in a total cost across the estimated 15 States of $28,800. We expect that States generally would use Federal education program funds they reserve for State administration under title I, part A to cover these one-time costs.

The Department also estimates that the approximately 1,500 LEAs that we estimate currently would not comply with the special rule in the proposed regulations would need, on average, 24 hours to develop or adopt an alternative funds-based compliance test consistent with one of the options in the proposed regulations. We further estimate that, assuming a $35 hourly cost, these LEAs would spend an average of $840 to develop or adopt a test for demonstrating compliance with the proposed supplement not supplant regulations, for a total estimated cost across 1,500 LEAs of $1,260,000. As under the State example, we anticipate that most LEAs would use a portion of Federal program funds received under title I, part A to pay these one-time development costs.

The Department also believes that for most LEAs, adjusting allocations of State and local education resources to demonstrate compliance with the proposed regulations generally would not entail significant new administrative burden because such adjustments could be accomplished through their normal annual budget processes. However, we estimate that approximately one third of LEAs that currently would not comply with the proposed special rule would need to transfer more than 1 percent of State and local funds in order to demonstrate compliance with the proposed regulations, and that these 500 LEAs would need to (1) develop multi-year plans for meeting their selected compliance tests and (2) integrate these plans into their annual budget processes. The Department estimates that these 500 LEAs would need, on average, 28 hours at a cost of $35 per hour to develop and integrate these plans into their annual budget processes, for a total estimated cost of $490,000. We note that there is likely substantial variation around the 28-hour average, with some LEAs potentially requiring significantly more time to develop and implement their compliance plans.

The estimated administrative costs of the proposed regulations, which total less than $2 million for States and LEAs, are a small fraction of the more than $15 billion provided by the title I, part A program. Moreover, these costs are outweighed by the fact that for the vast majority of LEAs (i.e., the more than 90 percent of LEAs that are likely to already comply through the special rule), demonstrating compliance with the proposed regulations would be significantly less complex and burdensome than the supplement not supplant requirements of current law, which typically have involved detailed tracking of education expenditures in order to demonstrate that Federal title I funds are not supplanting State or local funds. Thousands of LEAs no longer would incur the annual costs of tracking, reporting, and auditing individual education expenditures that are the predominant practice for complying with supplement not supplant under current law. For all of these reasons, we believe the proposed regulations generally would not impose significant costs on either States or LEAs, and that for the minority of LEAs that do experience additional, mostly one-time implementation costs, such costs would be substantially offset by reduced administrative burdens once the proposed regulations are fully implemented.

Equally important, the proposed regulations would provide a significant benefit for the vast majority of LEAs by simplifying and clarifying the test for compliance with the supplement not supplant requirement in the ESEA while ensuring that Federal education funds provided through the title I, part A program meet their statutory purpose of providing students in high-poverty schools the extra resources they need to meet challenging State academic standards.

Executive Order 12866 and the Presidential memorandum “Plain Language in Government Writing” require each agency to write regulations that are easy to understand.

The Secretary invites comments on how to make these proposed regulations easier to understand, including answers to questions such as the following:

• Are the requirements in the proposed regulations clearly stated?

• Do the proposed regulations contain technical terms or other wording that interferes with their clarity?

• Does the format of the proposed regulations (grouping and order of sections, use of headings, paragraphing, etc.) aid or reduce their clarity?

• Would the proposed regulations be easier to understand if we divided them into more (but shorter) sections? (A “section” is preceded by the symbol “§ ” and a numbered heading; for example, § 200.72 Supplement Not Supplant.)

• Could the description of the proposed regulations in the SUPPLEMENTARY INFORMATION section of this preamble be more helpful in making the proposed regulations easier to understand? If so, how?

• What else could we do to make the proposed regulations easier to understand?

To send any comments that concern how the Department could make these proposed regulations easier to understand, see the instructions in the ADDRESSES section.

The Secretary certifies that these proposed regulations would not have a significant economic impact on a substantial number of small entities. Under the U.S. Small Business Administration's Size Standards, small entities include small governmental jurisdictions such as cities, towns, or school districts (LEAs) with a population of less than 50,000. Although the majority of LEAs that receive ESEA funds qualify as small entities under this definition, the proposed regulations would not have a significant economic impact on these small LEAs because they would not require the expenditure of additional State and local education funds, only that existing State and local funding be allocated fairly to all schools, including both title I and non-title I schools. The Department believes the benefits of this proposed regulatory action would outweigh the burdens on these small LEAs of complying with the proposed regulations. In particular, the proposed regulations would clarify the supplement not supplant requirements in the ESEA while ensuring that Federal education funds meet their statutory purpose. The proposed regulations recognize the circumstances that small LEAs might face with respect to supplement not supplant requirements, allowing an LEA that uses the “special rule” option to exclude from the calculation of its average per-pupil spending funds spent in a school that enrolls fewer than 100 students. The Secretary invites comments from small LEAs as to whether they believe the proposed regulations would have a significant economic impact on them and, if so, requests evidence to support that belief.

As part of its continuing effort to reduce paperwork and respondent burden, the Department provides the general public and Federal agencies with an opportunity to comment on proposed and continuing collections of information in accordance with the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3506(c)(2)(A)). This helps ensure that: the public understands the Department's collection instructions, respondents can provide the requested data in the desired format, reporting burden (time and financial resources) is minimized, collection instruments are clearly understood, and the Department can properly assess the impact of collection requirements on respondents.

Proposed § 200.72(b)(1)(i)(A) and § 200.72(b)(1)(ii)(C) contains an information collection requirements. Under the PRA, the Department has submitted a copy of these sections to OMB for its review.

A Federal agency may not conduct or sponsor a collection of information unless OMB approves the collection under the PRA and the corresponding information collection instrument displays a currently valid OMB control number. Notwithstanding any other provision of law, no person is required to comply with, or is subject to penalty for failure to comply with, a collection of information if the collection instrument does not display a currently valid OMB control number.

In the final regulations, we will display the control number assigned by OMB to any information collection requirements proposed in this NPRM and adopted in the final regulations.

Proposed § 200.72(b)(1)(i)(A) would require each LEA to annually publish its methodology for allocating State and local funds in a manner easily accessible to the public. We estimate that during the three year period for which we seek information collection approval, 14,000 LEAs would devote five hours to publishing a methodology for allocating State and local funds. Therefore, we estimate for this section a total burden over three years for all respondents would be 70,000 hours, resulting in an average annual burden of 23,333 hours.

Proposed § 200.72(b)(1)(ii)(C) would allow States to—at their discretion—submit an alternate funds-based compliance test for Federal peer review that then could be used by LEAs to demonstrate compliance with the proposed supplement not supplant requirements. We estimate over the three year period for which we seek information collection approval, 15 States would choose to submit an alternate funds-based compliance test for Federal peer review, and that each State would devote 48 hours to preparing and submitting the alternate funds-based compliance test. Therefore, we anticipate the total burden over three years for all respondents would be 720 hours, resulting in an average annual burden of 240 hours for this section. In total, we estimate a burden of 23,573 hours for this proposed regulation.

If you want to comment on the proposed information collection requirements, please send your comments to the Office of Information and Regulatory Affairs, OMB, Attention: Desk Officer for U.S. Department of Education. Send these comments by email to [email protected] or by fax to (202) 395-6974. You may also send a copy of these comments to the Department contact named in the ADDRESSES section of this preamble.

We have prepared an Information Collection Request (ICR) for this collection. In preparing your comments you may want to review the ICR, which is available at www.reginfo.gov. Click on Information Collection Review. This proposed collection is identified as proposed collection 1810-NEW.

We consider your comments on this proposed collection of information in—

• Deciding whether the proposed collection is necessary for the proper performance of our functions, including whether the information will have practical use;

• Evaluating the accuracy of our estimate of the burden of the proposed collection, including the validity of our methodology and assumptions;

• Enhancing the quality, usefulness, and clarity of the information we collect; and

• Minimizing the burden on those who must respond. This includes exploring the use of appropriate automated, electronic, mechanical, or other technological collection techniques.

OMB is required to make a decision concerning the collection of information contained in these proposed regulations between 30 and 60 days after publication of this document in the Federal Register. Therefore, to ensure that OMB gives your comments full consideration, it is important that OMB receives your comments by October 6, 2016. This does not affect the deadline for your comments to us on the proposed regulations.

This program is not subject to Executive Order 12372 and the regulations in 34 CFR part 79.

Executive Order 13132 requires us to ensure meaningful and timely input by State and local elected officials in the development of regulatory policies that have federalism implications. “Federalism implications” means 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. Although we do not believe the proposed regulations would have federalism implications, we encourage State and local elected officials to review and provide comments on these proposed regulations.

Accessible Format: Individuals with disabilities can obtain this document in an accessible format (e.g., Braille, large print, audiotape, or compact disc) on request to the person listed under FOR FURTHER INFORMATION CONTACT.

Electronic Access to This Document: The official version of this document is the document published in the Federal Register. Free Internet access to the official edition of the Federal Register and the Code of Federal Regulations is available via the Federal Digital System at: www.thefederalregister.org/fdsys. At this site you can view this document, as well as all other documents of this Department published in the Federal Register, in text or Portable Document Format (PDF). To use PDF you must have Adobe Acrobat Reader, which is available free at the site.

You may also access documents of the Department published in the Federal Register by using the article search feature at: www.federalregister.gov. Specifically, through the advanced search feature at this site, you can limit your search to documents published by the Department.

For the reasons discussed in the preamble, the Secretary proposes to amend part 200 of title 34 of the Code of Federal Regulations as follows:

On July 17, 2015, the United States Postal Service published a final rule to revise the rules concerning authorization to manufacture and distribute postage evidencing systems and to reflect new revenue assurance practices (80 FR 42392). Postage collection under the new rules will start on March 20, 2017. This document proposes additional changes with regard to revenue assurance which would support our efforts to collect the appropriate revenue on mail pieces in a more automated fashion. If adopted, the proposed clarifying changes would also be implemented on March 20, 2017. The revenue assurance guidelines can be found in 39 CFR 501.16, and on https://ribbs.usps.gov in the site index of Automated Package Verification (APV) documents, named APV Standard Operating Procedure (SOP).

Accordingly, for the reasons stated, the Postal Service proposes to amend 39 CFR part 501 as follows:

Need for Correction

In the ADDRESSES section of a proposed rule (81 FR 58443; August 25, 2016) on page 58443, in the first column, NMFS used an incorrect document identifier number “NOAA-NMFS-2014-0144” rather than the correct document identifier of “NOAA-NMFS-2016-0108” in the Federal e-Rulemaking Portal hyperlink. The ADDRESSES section has been corrected in this document.

The Pacific Coast Groundfish FMP specifies management measures for over 90 different species of rockfish, flatfish, roundfish, sharks, skates, and other species, in Federal waters off the West Coast states. Target species in the commercial fishery include Pacific hake (whiting), sablefish, dover sole, and rockfish, which are harvested by vessels using primarily midwater and bottom trawl gear, but also fish pots and hook and line. The trawl fishery is managed under a catch share program called the Trawl Rationalization Program, which was implemented through Amendment 20 to the FMP in January 2011. The Program consists of an IFQ program for the shorebased trawl fleet (including whiting and non-whiting sectors), and cooperatives for the at-sea mothership and catcher/processor trawl fleets (whiting only). Concurrently, Amendment 21 established long-term allocations of certain groundfish species for the limited entry trawl sectors, which are used to determine what proportion of each species individual cooperatives and vessels can harvest. Annual catch limits are set on a two-year cycle through the biennial harvest specifications process. The 2017-2019 harvest specifications are under development by the Council and NMFS and intended to take effect January 1, 2017.

As part of the catch share program, Amendment 20 implemented requirements for 100 percent monitoring at-sea and dockside in order to ensure accountability for all landings and discards of allocated species. Catcher processors and motherships are required to carry two observers at all times, depending on the length of the vessel, and catcher vessels are required to carry one observer, including while in port until all fish are offloaded. In addition, first receivers, which are processors that are licensed to receive IFQ landings, are required to have catch monitors to monitor 100-percent of IFQ offloads. Vessel owners and first receivers are responsible for obtaining and funding catch share observers and catch monitors as a necessary condition of their participation in the program. However, NMFS subsidized the cost of observers for the first 5 years of the program to assist the industry in transitioning to the catch share program. The amount of the subsidy declined each year and ended in September 2015.

Faced with the costs of 100-percent monitoring, the industry raised concerns about their ability to support these costs and the need for an alternative to meet the monitoring requirements of the program. EM uses cameras and associated sensors to passively record and monitor fishing activities. The video can be reviewed by an analyst onshore at a later time to collect catch and effort information. EM has the potential to reduce monitoring costs because it does not require deploying a person on the vessel and the logistical and travel expenses that generates. EM was tested by the whiting fishery through Exempted Fishing Permits (EFPs) from 2004 to 2011 and by the Pacific States Marine Fisheries Commission (PSMFC) in the whiting fishery and with other gear types in 2012-2014. EM has been successfully deployed in British Columbia, Canada, to monitor fishing operations, and more recently in the U.S. Atlantic highly migratory species (HMS) fishery.

In response to industry's concerns, the Council initiated development of a regulatory amendment in November 2012 to implement an EM program for the shorebased and mothership sectors that would allow catcher vessels to use EM in place of observers to meet the at-sea monitoring requirements of the catch share program. Prior to Amendment 20, the Council had been developing an EM program for the Pacific whiting fishery in Amendment 10, but had set the action aside to prioritize work on the catch share program. The Council incorporated the Amendment 10 program in Amendment 20, making the whiting fishery a maximized retention fishery (all catch, with few exceptions, must be landed), and allowing for EM to be used in place of observers. However, the requirements of the EM program were not sufficiently developed to be implemented with the rest of the catch share program at that time. This regulatory amendment would specify the detailed requirements necessary to implement this provision of Amendment 20 for two components of the trawl fishery—catcher vessels using midwater trawl gear to target whiting in the mothership and shorebased sectors and trawl-permitted vessels using fixed gear to target other species in the shorebased sector. The regulatory amendment originally contemplated measures for all gear types, but the Council chose to postpone measures for bottom trawl and non-whiting midwater trawl vessels to a subsequent action to allow more time for development and analysis.

The Council had completed development of these measures in 2014, but postponed final action and instead approved four EFPs to test the proposed measures in the fishery. These EFPs would be used to provide data to analyze the effectiveness of the measures and to develop detailed requirements and procedures that would be necessary to implement the program. NMFS approved and issued the EFPs in May, 2015. A total of 34 vessels using a range of gear types participated in 2015, and 47 signed up in 2016. The Council reviewed the results of the 2015 EFPs at their meetings during the fall 2015-spring 2016 and took final action on the measures for whiting and fixed gear vessels at their April, 2016 meeting. Implementation of this action is targeted for November, 2016, with the intent for vessels to begin fishing with EM under the regulations in January, 2017.

The measures proposed by the regulatory amendment are described below. To implement these measures NMFS is proposing to revise the trawl fishery regulations in §§ 660.13, 660.19, 660.130, 660.140, and 660.150, to allow for vessel owners to use EM in place of an observer and establishes new regulations in §§ 660.600-660.604 governing its use. The proposed regulations were deemed by the Council to be consistent with the regulatory amendment and necessary to implement such provisions pursuant to section 303(c) of the Magnuson-Stevens Act through an August 16, 2016, letter from the Council Chairman to the NMFS Regional Administrator.

The regulatory amendment proposes to implement an EM program for Pacific whiting catcher vessels in the shorebased and mothership sectors and fixed gear vessels in the shorebased sector of the groundfish fishery. Vessel owners would be able to apply to NMFS to receive an exemption from the 100-percent observer coverage requirement, provided that they use an EM system and follow the catch handling, reporting, and other requirements of the EM program. Vessel owners authorized to use EM would be required to obtain an EM system from a NMFS-permitted service provider, as well as services to install and maintain the EM system, and to process, store, and report EM data to NMFS. Vessel operators would be required to submit a logbook reporting their discards of IFQ species. NMFS would use the logbook data to debit discards of IFQ species from IFQs and cooperative allocations, and use the EM data to audit the logbook data. EM data would also be used to monitor compliance with the requirements of the catch share program. NMFS's incremental costs to administer the EM program would be recoverable through Trawl Program cost recovery fees. The requirements of the program for vessel owners, operators, first receivers, and service providers, are described in more detail in the following sections.

As proposed in the Council's regulatory amendment, vessel owners would be responsible for the costs of procuring EM equipment and services from NMFS-permitted EM service providers. However, NMFS is still developing the standards and protocols that it would use to oversee service providers processing the EM data to ensure adequate data quality. Therefore, NMFS intends to conduct the data processing itself during 2017-2019 through PSMFC, contingent on available appropriations. Provided NMFS has sufficient funding, during 2017-2019 vessel operators would be responsible for procuring EM equipment and maintenance services from EM service providers. The requirement for vessel owners to obtain and fund data processing, storage, and reporting services would take effect January 1, 2020. This phased approach is reflected in the proposed regulations. In addition, because NMFS's ability to fund the video review is contingent upon appropriations which are not guaranteed, NMFS retains the ability in the regulations to implement the requirement for vessel owners to obtain data services earlier. In such a case, NMFS would provide at least six months prior notice to service providers and vessel owners before implementing the requirements.

In the proposed EM program, vessel operators would submit logbook reports which would be used initially to debit discards from IFQ vessel accounts and cooperative allocations. The video would later be reviewed by an analyst to determine an estimate of discards to use to audit the logbook reports. The Council also considered using EM discard estimates as the primary source for debiting discards in the whiting fishery, because it was thought that logbooks would be an unnecessary burden to vessels operators in the whiting fishery where estimating discards from the video is relatively quick. In addition, whiting industry representatives supported reviewing 100-percent of the video, and logbooks are primarily employed to allow a subsample of video to be reviewed in an audit model. However, through the 2015 EFPs, the Council and NMFS realized the value of the logbooks for communication between the vessel operator and the video reviewer about system malfunctions, for data quality assurance, and for aligning discard estimates. Therefore, the Council proposed a logbook audit model for both fixed gear and whiting vessels.

The Council proposes that initially 100 percent of the video be reviewed to audit the logbooks, but that NMFS may modify this percentage over time based on performance and in consultation with the Council. The Council also considered requiring 100 percent of the video to always be reviewed, because it would provide more certainty for discard estimates than extrapolating total discards from a subsample. However, reviewing 100 percent of the video is generally more costly than reviewing a subsample and erodes the potential savings that EM can provide relative to observers. For this reason, other EM programs implemented to date, such as the U.S. Atlantic HMS, British Columbia groundfish, and Australian programs, review a percentage of the video to audit vessel reports. Because an objective of the regulatory amendment was to reduce monitoring costs for the fleet, the Council also selected an audit approach for the west coast EM program. However, the Council also tied the level of review to program performance to ensure that data quality for catch accounting is maintained.

Discards estimated by the EM program, from logbook or EM data, would be debited from IFQs and cooperative allocations. The Council considered other alternatives for whiting trips that would have deducted small amounts of discards from ACLs, sector-wide, or cooperative allocations, preseason using estimates developed from historical observer data. It was believed that allowing video reviewers to ignore many small events during the video review might expedite the video review and reduce data processing costs. However, through the 2015 EFPs, the Council and NMFS learned that whiting hauls can be reviewed very quickly and that eliminating these discard events from review would not result in much cost savings. Therefore, the Council proposed debiting all discards from IFQs and cooperative allocations to provide the strongest incentive to minimize bycatch and discards.

Under the proposed EM program, Pacific halibut discards would be debited using discard mortality rates rather than viability assessments. Currently, observers on IFQ trips conduct viability assessments of all or a subsample of discarded halibut, which are a bycatch species in the groundfish fishery. Observers assign a score to the discarded halibut based on the results of the viability assessment which are used as an indication of whether the halibut is likely to survive after release. Based on the score given, a portion of the halibut's weight, rather than the total weight, may be deducted from a vessel's halibut Individual Bycatch Quota (IBQ). Observers will no longer be present to conduct viability assessments on EM trips, so NMFS would instead use discard mortality rates developed by the International Pacific Halibut Commission (IPHC) to deduct halibut IBQ from vessel accounts (18 percent for pots, 16 percent for longline, and 100 percent for midwater trawl). The West Coast Groundfish Observer Program (WCGOP) currently uses these rates to estimate mortality of halibut caught as bycatch in other west coast fisheries that have less than 100-percent observer coverage. PSMFC is currently conducting a study on bottom trawl trips to determine if viability can be estimated from information that can be collected from EM and logbooks. NMFS may revise the discard mortality rates at a future time to incorporate the results of this project or other new information, in consultation with the IPHC, to continue to use the best scientific information available to estimate halibut mortality.

Although vessel owners would be exempt from the requirement to obtain a catch share observer while using EM, vessel owners would still be required to carry an observer if requested by NMFS. Prior to the catch share program, NMFS deployed WCGOP observers on a percentage of trips in the trawl fishery to collect information for estimating mortality and bycatch, and to collect biological samples and other information. When the catch share program was implemented with a requirement for 100-percent industry-funded observer coverage, NMFS suspended its WCGOP coverage and reallocated these resources to monitor other fisheries; the catch share observers were able to serve dual purposes, collecting the information necessary to monitor compliance with the catch share program as well as other information such as biological samples and bycatch data. With the implementation of EM, NMFS is reinstituting the WCGOP coverage in the trawl fishery for EM trips. The EM program is intended to monitor discards of IFQ species for catch accounting, as well as compliance with the regulations. The EM program is not intended to collect all the other information that an observer collects, such as biological samples and bycatch information. Therefore, NMFS would use WCGOP coverage to continue to collect such information from the trawl fishery for use in groundfish mortality and bycatch estimates, stock assessments, and the standardized bycatch reporting methodology (SBRM). At this time, NMFS intends to deploy WCGOP observers on fixed gear trips, but not whiting trips because bycatch rates in the whiting fishery are low and nearly all catch is delivered and sampled by port samplers and mothership observers. However, NMFS would retain the authority in the regulations to deploy observers on whiting trips in a future fishing year with prior notice, if it was determined to be necessary.

Under the proposed EM program, whiting vessels would continue to fish under the maximized retention requirements implemented in Amendment 20. However, NMFS is proposing to clarify the existing definition of “maximized retention” for the purposes of the EM program to make clear what types of discards are allowed (see proposed 50 CFR 660.604(p)(1)). The following discards would be permitted on whiting trips as “minor operational discards”: Mutilated fish, large animals (longer than 6 feet (1.8 meters) in length), fish spilled from the codend during transfer to the mothership, fish picked from the gear or washed from the deck during cleaning, and fish vented from an overfull codend. Discards of invertebrates, trash, and debris, and discard events outside the control of the vessel operator would also be allowed. Minor operational discards would not include discards as a result from taking more catch than is necessary to fill the hold (a.k.a. “topping off”), which would continue to be prohibited. Minor operational discards would also not include discards of fish from a tow that was not delivered. This occurs when there is not enough catch worth delivering to a mothership, or not of the desired species composition, sometimes called “test tows” or “water tows.” These discards are currently allowed if first sampled by an observer, but in an EM program, an observer would no longer be onboard to sample the catch before discarding. In addition, as no catch from the haul would be delivered to either a mothership or a plant, there would be no species composition to extrapolate to the discarded weight. Because these tows can sometimes include overfished or endangered species, these discards will be prohibited under the EM program. All discards, regardless of the source, would be required to be reported in a discard logbook and included in mortality estimates or debited from allocations (for IFQ species).

This revised definition was not included in the version of the regulations that the Council deemed, because the need for clarification was not clear to NMFS until after the April Council meeting. Therefore, NMFS is proposing to revise the definitions here using its authority under section 305(d) of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), which allows the Secretary of Commerce to implement regulations necessary to ensure that fishery management plans or amendments are carried out consistent with the Magnuson-Stevens Act. NMFS is specifically requesting comment on this proposed definition.

NMFS is also requesting comment on catch retention rules for fixed gear vessels. The Council's regulatory amendment proposed “optimized retention” for fixed gear vessels, in which vessels would be able to discard any species that could be differentiated on camera. The measure provided for the list of allowable discard species to be revised as technology and methods improve through the “routine process” under the FMP (see § 660.60(c)). At the time of the Council's final action, NMFS only had data from the 2015 EFPs in which fixed gear vessels tested maximized retention, retaining all catch until landing. NMFS was proposing to allow fixed gear vessels to test optimized retention in 2016, but the results were not yet available. As a result, the proposed regulations reflect the more conservative, and restrictive, maximized retention rules that were based on 2015 EFP results and that were deemed by the Council (see proposed § 660.604(p)(2)). Under the maximized retention option, fixed gear vessels would be required to retain IFQ species salmon, and non-IFQ rockfish, flatfish, and roundfish.

However, NMFS is also considering the optimized retention option and seeks public comment on both options. Under the optimized retention option, fixed gear vessels may discard all fish, except salmon. NMFS will select a final option, based on public comment and the results of the 2016 EFPs, in the final rule, if the proposed measures are approved. Under either option, fixed gear vessels would be required to retain salmon in order to ensure complete accounting for the incidental take statement (ITS), although fixed gear vessels rarely catch salmon.

The Council proposed a limit on the number of times a vessel may switch between using observers and using EM in the same year. Observer providers and the WCGOP expressed concerns during the development of the regulatory amendment that some vessels may try to maximize their flexibility by using an observer on some trips and EM on others. It may be advantageous for a captain to use an observer where they have higher bycatch of a species they would like to discard, and EM on other trips with lower bycatch. Observer providers and WCGOP try to match the number of trained observers and their distribution across ports to the needs of the fleet. Frequent switching would disrupt deployment planning for observers and potentially result in observers not being available when needed in a particular port. Although it is in a vessel owner's interest to plan ahead with their provider in order to ensure an observer is available to meet their needs, this does not always occur. The Council considered alternatives for limiting switching in order to minimize disruption.

During the Council's consideration of final action for fixed gear, NMFS proposed that vessel owners submit a tentative fishing plan each year that would describe their intentions to use EM or observers for the upcoming fishing year. The WCGOP and observer providers could then use this information for planning purposes. The fishing plan would not be binding on vessel owners, maintaining their operational flexibility, but would provide the information needed for planning observer demand. The Council supported this idea and, therefore, recommended no limit on switching for fixed gear vessels. However, the Council did not make this change to the whiting alternatives and, as a result, the proposed regulations include a limit on switching for whiting vessels (see proposed § 660.604(m). Whiting industry members did not anticipate switching between observers and EM and so did not oppose this measure at the April meeting.

NMFS believes the proposed limit on switching for whiting may be ineffective at preventing disruptions to observer planning, because it would still allow for last-minute switching. NMFS believes requiring whiting vessel owners to submit a tentative fishing plan as for fixed gear vessels would provide the information NMFS needs and with more notice. NMFS believes not revising this alternative for whiting was an oversight by the Council and is concerned there is a not a clear rationale for why this limit should be implemented for whiting, but not fixed gear vessels. Therefore, NMFS is specifically requesting comments on having a limit on switching for the whiting fishery and, if there is a limit, whether twice a year is an appropriate limit (with additional exceptions for EM system malfunctions).

As part of the data services provided to vessel owners by EM service providers beginning in 2020, EM service providers would be required to maintain records and EM data for a minimum of three years (see proposed § 660.603(m)(6)). Vessel owners would be responsible for the costs of this data storage, along with the other services rendered by the EM provider, as a condition of their participation in the program. This measure was discussed at the November 2015 and April 2016 Council meetings. NMFS initially recommended a five year retention period, based on the five year statute of limitations for violations of the Magnuson-Stevens Act, to provide NMFS and law enforcement personnel sufficient time to review discard data reported by vessels and service providers, detect compliance issues, and to determine if any of the video should be retained for additional time and uses. Some industry members are concerned about the costs of storing such a large amount of video data, as well as the potential for enforcement personnel or other entities to access it for other purposes. They would prefer the video data be destroyed after one year, and only the reports resulting from the video review be retained. As a compromise, NMFS proposed and the Council supported a three year retention period in the draft regulations. However, the Council also recommended that NMFS review this requirement before 2020 to determine if it can be reduced. NMFS is specifically requesting comment on whether a one, three, or five year, retention period is appropriate for video data.

Vessel owners interested in using EM would be required to obtain authorization from NMFS. There would be a two-step application process, starting with an initial application that NMFS would use to assess a vessel owner's eligibility (see proposed § 660.604(e)). After reviewing the application, NMFS would notify the vessel owner of their eligibility to use EM and to submit a final application. The final application would include a form signed by a representative of the EM service provider certifying that the EM system was installed according to the performance standards in the regulations (see proposed §§ 660.604(e)(3)(i) and 660.604(j)). The final application would also include a tentative fishing plan (see proposed § 660.604(e)(3)(ii)), which would be used by NMFS to plan WCGOP sampling and observer deployments, and a vessel monitoring plan (VMP), which would document the configuration of equipment and catch handling protocols on that particular vessel (see proposed § 660.604(e)(3)(iii)). NMFS would notify the vessel owner of its final decision after reviewing the final application and, if approved, issue the vessel an EM authorization. If an initial or final application is denied, a vessel owner would be able to appeal NMFS's decision following the permits appeals process at § 660.25(g). The EM authorization would be effective until a change in vessel ownership, until NMFS notifies the owner that they are no longer eligible for it, or if the vessel owner fails to renew it. The EM authorization would be automatically renewed provided a vessel owner submits a renewal form verifying their vessel monitoring plan and providing an updated fishing plan. If a renewal form is not submitted, the authorization would expire on December 31 of that year.

NMFS is proposing that vessel owners that participated in the EM EFPs only be required to complete a renewal form, because NMFS already has vessel monitoring plans and a performance history for these vessels, making a complete application process unnecessary. If approved, NMFS would mail renewal forms to EFP vessel owners upon publication of the final rule. New vessel owners interested in using EM in 2017 would be required to submit an application after publication of the final rule. Draft application materials may be viewed on the West Coast Region's Web site: http://www.westcoast.fisheries.noaa.gov/fisheries/groundfish_catch_shares/electronic_monitoring.html.

NMFS would develop and maintain EM Program Guidelines, which would document best practices and other information that NMFS would use to evaluate vessel monitoring plans submitted by vessel owners (see proposed § 660.600(b)). New applicants for an EM authorization this fall may view draft EM Program Guidelines on the West Coast Region's Web site: http://www.westcoast.fisheries.noaa.gov/fisheries/groundfish_catch_shares/electronic_monitoring.html. The draft guidelines provide guidance and a template for developing individual vessel monitoring plans.

Vessel owners would be able to make changes to the vessel monitoring plan at any time by submitting an amendment to NMFS (see proposed § 660.604(f)). The vessel monitoring plan is intended to be a living document and would be modified over time to reflect changes to the vessel's equipment and operations, provided that NMFS has accepted the amendments in writing.

An operator of a vessel with EM would be required to attend a mandatory training on EM requirements prior to beginning fishing with EM (see proposed § 660.604(b)(5)). NMFS may waive this requirement on a case-by-case basis, such as for those captains that successfully participated in the EM EFP. Vessel operators would also be required to maintain the EM system in good working order, including ensuring the EM system is powered and functioning throughout the trip, keeping cameras clean and unobstructed, and ensuring the system is not tampered with (see proposed § 660.604(l)(1). The vessel operator would be required to declare their intent to use EM to the Office of Law Enforcement (OLE) via the existing declaration process at § 660.13(d)(5) (also see proposed § 660.604(m)). The vessel operator would also be required to notify WCGOP 48-hours before each EM trip for purposes of planning observer coverage (see proposed § 660.604(n)). If selected to carry an observer, the vessel operator would not be able to depart on the trip without the observer, and would be required to accommodate the observer on that trip. The vessel operator would also be required to conduct a system functionality test before each trip to ensure the EM system is working properly before departing (see proposed § 660.604(l)(2)). If the EM system malfunctions, a vessel operator may be prevented from fishing or required to return to port until the EM system is repaired, depending on the nature of the malfunction (see proposed § 660.604(l)(3)). An EM vessel would not be allowed to fish with an EM system that is not able to record fishing activity, unless an observer is onboard. A vessel operator would always be allowed to obtain an observer at their own expense to continue fishing while the EM system is repaired. The vessel operator would also be responsible for ensuring the crew follow the catch handling instructions in the VMP (see proposed § 660.604(r)), for completing a logbook for each trip and submitting logbooks and hard drives to PSMFC according to the deadlines in the regulations (see proposed § 660.604(s)), and maintaining records for a minimum of three years (see proposed § 660.604(t)).

First receivers would be required to sort and dispose of any prohibited or protected species retained by EM vessels (see proposed § 660.604(u)). First receivers already have such disposition requirements for landings from Pacific whiting maximized retention trips. This action would expand the existing whiting sorting and disposition requirements to landings from all EM trips, including fixed gear trips. The first receiver would be required to do the following:

• Record all prohibited species on the electronic fish ticket and provide them to the catch monitor for recording.

• Dispose of prohibited and protected species in a manner that ensures it will not enter a commercial market.

• Sort eulachon and green sturgeon to species and report them on the electronic fish ticket. Whole green sturgeon would be required to be transferred to the NMFS Southwest Fisheries Science Center within 72-hours.

• Report and surrender albatross to the U.S. Fish and Wildlife Service (FWS).

• Report and surrender marine mammals and sea turtles to NMFS.

Neither prohibited nor protected species would be allowed to be retained for personal use, including by a vessel owner or crew member, or first receiver or processing crew member. Prohibited species suitable for human consumption may be donated if appropriate to a surplus food collection and distribution system or nonprofit charitable organization for the purpose of reducing hunger and meeting nutritional needs.

EM service providers interested in supplying EM equipment and services to the fishery would be able to apply to receive a permit from NMFS. A service provider would be able to apply to NMFS by submitting an application package that contains, among other things, information about the company's organizational structure, prior experience, criminal convictions, conflicts of interest, and an EM service plan describing how the EM service provider proposes provide services to the fishery to meet the requirements of the program (see proposed § 660.603(b)). The EM service plan contains a number of components (see proposed § 660.603(b)(1)(vii)), including a description of the applicant's plan for provision of services, communications, procedures for hiring and training staff, and procedures for tracking hard drives, data processing, reporting, archiving EM data. The EM Service Plan would also include detailed descriptions of the EM system to be deployed and software to be used for analysis. An applicant may be required to provide NMFS with copies of the equipment and software for testing and evaluation (see proposed § 660.603(b)(1)(viii)). NMFS would evaluate the application against the regulations and, if approved, issue the provider a permit. If denied, the provider may appeal NMFS's decision using the provider permit appeal process described at § 660.19. The provider permit would be effective until the company changes ownership, NMFS notifies the provider that the permit is no longer valid, or if the provider fails to renew it. A provider's permit would be automatically renewed provided it submits a complete renewal form attesting to the accuracy of the current EM service plan and other information. The EM service provider would be able to modify its service plan by submitting an amendment to NMFS (see proposed § 660.603(c)). The EM service plan is intended to be a living document and would be updated over time to reflect changes to the provider's operations. NMFS would maintain EM Program Guidelines for the EM service plan on its Web site to assist providers in developing their plans (see proposed § 660.600(b)). NMFS has posted draft application materials and EM Program Guidelines on its Web site: http://www.westcoast.fisheries.noaa.gov/fisheries/groundfish_catch_shares/electronic_monitoring.html.

As with observer and catch monitor providers, an EM service provider would be required to be free of any conflicts of interest and to have insurance coverage for their employees that provide services on the vessels (see proposed § 660.603(h)).

EM service providers would be required to provide field and technical support services to vessels with which they have a contract, including installing equipment to meet NMFS's performance standards and providing technical assistance and repair services (see proposed § 660.603(k)). The EM service provider would also be required to provide support to NMFS, including assistance in diagnosing and resolving technical issues and litigation support, free of charge to NMFS (see proposed § 660.603(l)).

Beginning in 2020, or when NMFS transitions video review responsibilities to third party providers, the EM service provider would responsible for processing EM datasets; submitting reports to NMFS of catch data, compliance issues, and technical issues; communicating feedback to vessel operators to improve data quality; maintaining EM program records, including raw video and processed EM datasets; and maintaining the confidentiality and security of EM data (see proposed § 660.603(m)). EM data would be confidential, as are observer data, consistent with Magnuson-Stevens Act requirements. The service provider would be responsible for ensuring its staff are fully trained to successfully execute these duties.

Except for those measures identified above where NMFS is requesting specific comment, NMFS has made a preliminary determination that the measures this proposed rule would implement are consistent with the Pacific Coast Groundfish FMP, Magnuson-Stevens Act and other applicable laws. In making the final determination, NMFS will take into account the data, views, and comments received during the comment period.

This proposed rule has been determined to be not significant for the purposes of Executive Order (E.O.) 12866.

This proposed rule does not contain policies with Federalism or “takings” implications as those terms are defined in E.O. 13132 and E.O. 12630, respectively.

An IRFA was prepared, as required by section 603 of the Regulatory Flexibility Act (RFA). The IRFA, which includes this section of the preamble to this rule and analyses contained in its accompanying EA and RIR/IRFA, describes the economic impact this proposed rule, if adopted, would have on small entities. A description of the action, why it is being considered, and the legal basis for this action are contained at the beginning of this section in the preamble and in the SUMMARY section of the preamble.

This regulatory amendment impacts mainly commercial harvesting entities engaged in the groundfish limited entry trawl fishery. Although this action proposes an EM program for only two components of the limited entry trawl fishery—the Pacific whiting fishery and the fixed gear shorebased IFQ fishery—any limited entry trawl vessel may participate in these components, provided they comply with its requirements, and therefore may be eligible to use EM. In addition, vessels deploying EM are likely to be a subset of the overall trawl fleet, as some vessels would likely choose to continue to use observers. However, as all trawl vessels could potentially use EM in the future, this IRFA analyzes impacts to the entire trawl fleet.

A general description of the limited entry trawl fishery and catch share program is contained in the preamble to this section. Most recent permit information indicates that there are approximately 175 limited entry trawl permits. According to information from the Northwest Fishery Science Center Economic Data Collection Program, in 2014, the fourth year of the catch share program, there were 102 catcher vessels that participated in the West Coast Groundfish Trawl Catch Share program. Catcher vessels generated $85 million in income and 954 jobs from deliveries of fish caught in the catch share program. Catcher vessels spent an average of 62 days fishing in the catch share program and spent an average of 80 additional days fishing in non-catch share fisheries. West Coast catcher vessels deliver to ports in Washington, Oregon, California, and at-sea; the two ports with the highest landings in 2014 were Astoria and Newport, both in Oregon. An average of 2.4 crew members worked aboard each West Coast catcher vessel, each earning an average compensation of $54,500. In 2014, 31 percent of vessels were owner-operated at least part of the year. The average ex-vessel revenue per vessel from participation in the catch share program was $646,000. Average variable cost net revenue (ex-vessel revenue minus variable costs) per vessel was $256,000 from participation in the catch share program, and the fleet-wide variable cost net revenue was $26.2 million. Average total cost net revenue (ex-vessel revenue minus variable costs and fixed costs) per vessel was $127,000 and the fleet-wide total cost net revenue was $12.9 million (NWFSC, 2014; http://www.pcouncil.org/wp-content/uploads/2016/06/G5b_NMFS_Rpt4_MS_ElecVer_JUN2016BB.pdf). These are preliminary results and it should be noted that some industry members have questioned the results of EDC data which is based on cost-earnings surveys where all participants are required to respond to. Via the Pacific Fishery Management Council's Five Year IFQ Trawl Program Review, the NWFSC economists will be meeting with the industry to further validate their results with the industry.

With respect to monitoring costs, the NWFSC 2014 EDC report states the following: “One other change resulting from the implementation of the catch share program was a shift to 100% observer coverage with partial industry funding. Prior to catch shares, there was approximately 20% observer coverage, paid for by NMFS. In order to lessen the cost of transitioning to the required 100 percent observer coverage, catcher vessels received a maximum subsidy of $328.50 per day in 2011 and 2012. This subsidy decreased in 2013 to $256 per day and in 2014 to $216 per day. Catcher vessels spent on average $14,400 on observer coverage (excluding the NMFS subsidy payments) while operating in the catch share program in 2014. In 2011, observer costs represented 0.6% of total costs, and increased to 2.8 percent in 2014. Note that as observer subsidies have decreased over time, the average expenses per vessel have increased. For this reason, the average 2014 costs reported will not reflect the costs currently incurred by the fleet.” It should be noted that the 2015 observer subsidy was about $108 per day. The subsidy program ended in September 2015. Currently the industry is paying about $500 per day for observers.

This rule would apply to those entities that elect to use EM in lieu of observers. In 2015, a total of 36 vessels participated in the EM program. This total includes 20 vessels that participated in the Pacific whiting fishery (11 that participated in both the shorebased and mothership sectors, 9 that fished only in mothership) and 7 fixed gear vessels. This is likely an underestimate of the number of vessels that would use EM in the future. For RFA purposes only, NMFS has established a small business size standard for businesses, including their affiliates, whose primary industry is commercial fishing (see 50 CFR 200.2). A business primarily engaged in commercial fishing (NAICS code 11411) is classified as a small business if it is independently owned and operated, is not dominant in its field of operation (including its affiliates), and has combined annual receipts not in excess of $11 million for all its affiliated operations worldwide. For for-hire fishing and fish processing entities, the Small Business Administration (SBA) defines a small business as one that is: Independently owned and operated; not dominant in its field of operation; has annual receipts not in excess of $7.0 million in the case of for-hire fishing entities; or if it has fewer than 500 employees in the case of fish processors, or 100 employees in the case of fish dealers. When applying for their permits, entities were asked to classify themselves as a small business based on the finfish standard of $20.5 million. Only 5 indicated that they were “large” businesses and thus would continue to be large businesses under the $11.0 million standard. In 2015, ex-vessel revenues for all west coast fisheries for the remaining vessels ranged from $1,000 to $1.4 million. In 2014, “other fisheries revenue” collected on these vessels ranged from $0 to $5.0 million. Based on these ranges, NMFS concludes that the remaining vessels would be considered “small” even after factoring in the possibility of the vessels participating in Alaska fisheries.

This action contains two major alternatives—the Council's preferred alternative and proposed action, to allow vessels in the groundfish fishery to use EM in place of observers, and the no action alternative, which would not create an EM option. The regulatory amendment also considered several sub-options for design elements within the preferred alternative, which are described in the accompanying EA and summarized in the preamble. This rule proposes to implement the Council's preferred alternative.

The proposed action is presenting a choice to fishermen—they can either continue to pay for 100-percent observer coverage or elect to pay for EM (i.e., equipment, maintenance, and video review). Using 2015 EFP cost estimates developed jointly by PSMFC and NMFS, NMFS developed a model for assessing the vessel, fleet, and government costs from the preferred alternative. The results indicate economic impacts on small entities from the preferred alternative would be positive as these entities would have a choice of between hiring an observer and using EM. The current cost of an observer is approximately $500 per day. Presumably, vessel owners would choose between using an observer or EM based on relative costs and operational flexibility. NMFS estimates indicate fixed gear vessels will save approximately $98 per day, mothership catcher vessels $159 per day, and shoreside vessels $330, using EM. Vessels that participated in the EFPs already own EM systems (most whiting vessels and approximately half of the fixed gear vessels), so they may see a greater cost savings compared to new entrants, until such time that the cameras need to be replaced. Annual vessel estimates show fixed gear and mothership catcher vessels saving $3,000 to $4,000 and shoreside whiting vessels saving $24,000 per year, relative to the cost of observers. Annual fleet estimates show similar results.

In addition to the direct costs of the program, vessel owners would be responsible for reimbursing NMFS for its incremental costs for administering the EM program. NMFS collects cost recovery fees to cover the incremental costs of management, data collection, and enforcement of the trawl rationalization program. Fees are limited to a maximum of 3 percent of ex-vessel revenues. NMFS's incremental costs for administering the shorebased sector already exceed 3 percent, so the shorebased sector would not be likely to see an increase in fees from the preferred alternative in the short term. The mothership sector fees are currently 1.25 percent of ex-vessel revenue, so NMFS would be able to recover this sector's portion of EM program costs by increasing the fees.

As mentioned in the preamble to this proposed rule, NMFS intends to conduct the video review itself for 2017-2019, contingent on available funding, while the standards and protocols that would be used to certify and oversee third party service providers are developed. The requirement for industry to fund the video review would take effect in 2020, or earlier if NMFS does not have funding to process the data itself. When video review responsibilities shift to third party providers, NMFS's and PSMFC's responsibilities would be reduced to oversight and quality assurance, which may include auditing the service providers' video review results. To conservatively estimate government costs and corresponding fee increases, NMFS assumes that service providers would review 100 percent of the video and that NMFS would audit 50 percent of the video. Government costs include video review and storage costs, as well as program management costs, statistician costs, database management, and overhead. With the full transition in 2020, NMFS estimates the government costs would be approximately $286,000 per year. Under current fee rates, only the portion of the costs related to the mothership catcher vessel fleet would be recouped by the cost recovery fee, which would result in an increase of 0.02 percent. NMFS estimates that compared to the costs of observers, the preferred alternative would still present a lower cost option for whiting and fixed gear vessels.

Under Alternative 2, seven sub-options were developed to address various aspects of program design. These sub-options are summarized in the preamble to this proposed rule. Generally speaking, the Council's sub-options would either have no effect on the overall cost of the program (sub-options A2, D1, E1), reduce the cost of the program (sub-options E1, B1), or provide industry additional flexibility (sub-options C2, F1, G1-Fixed Gear, G2-Whiting).

There are no significant alternatives to the proposed action that would accomplish the stated objectives and that minimize any significant economic impact of the proposed rule on small entities. Alternatives that were considered and rejected, and the reason the Council or NMFS rejected them, are summarized in Section 3.3 of the EA. The other sub-options considered, and the reasons the Council and NMFS did not propose them, are summarized in the preamble to this proposed rule. As fishermen would be given a choice between two alternative monitoring systems (observers versus EM), this rule is likely to have positive effects on small entities. NMFS believes that the preferred alternative for this rule would not have a significant impact when comparing small versus large businesses in terms of disproportionality and profitability given available information. These regulations are likely to reduce fishing costs for both small and large businesses. Nonetheless, NMFS has prepared this IRFA. Through this proposed rule, NMFS is requesting comments on this conclusion. The proposed action and alternatives are described in detail in the Council's regulatory amendment and the accompanying EA and RIR/IRFA (see ADDRESSES).

The proposed action contains a collection-of-information requirement subject to review and approval by OMB under the Paperwork Reduction Act (PRA). This requirement will be submitted to OMB for approval. The proposed action does not duplicate, overlap, or conflict with any other Federal rules.

This action proposes to adjust notification requirements for groundfish vessels using EM and first receivers receiving catch from EM trips. Vessels would now be required to declare the type of monitoring they will use on a given trip—observer or EM. This change is necessary to provide vessels the flexibility to switch between different types of monitoring, depending on what is most cost effective and efficient for their operation at that time, while allowing NMFS to track which fleets vessels are participating in. The proposed change would only add additional potential answers to an existing question and not affect the number of entities required to comply with the declaration requirement (OMB Control Number 0648-0573). Therefore, the proposed change would not be expected to increase the time or cost burden associated with this requirement. Similarly, the requirement for EM vessels to notify the observer program before each trip would be in place of the existing notification to an individual vessel's observer provider when using a catch share observer, and would not be expected to increase the time or cost burden associated with the existing notification requirements approved under OMB Control Number 0648-0593. The requirement for first receivers to report protected and prohibited species landings was previously approved under OMB Control Number 0648-0619 and this action would not be expected to change the time or cost burden or number of entities associated with this requirement.

This action proposes to require vessel owners to submit an application to NMFS to be approved to use EM in place of an observer. This application would include an application form, the purchase or lease and installation of an EM system, a VMP, and attendance of a mandatory training session. The time burden associated with these requirements is estimated to be approximately 10 hours per vessel owner to prepare and submit the application package, install the EM system, and attend training. The training would be given via webinar to maximize convenience and minimize travel costs for vessel captains. Based on comments from industry participants during the development of the regulations, NMFS is proposing that vessel owners and captains that participated in the EFPs complete an abbreviated application process for 2017 to reduce the time burden to them. The cost of an EM system and installation is estimated at $12,000 per vessel. Approximately half the active vessels in the fleet have already received EM units through their participation in the EFPs and would not need to purchase a new unit to participate in the program. Vessel owners would likely have to purchase new EM units every 5-10 years, depending on the life of the equipment. Vessel owners would also be responsible for maintaining the EM units in good working order, likely through a service contract with a NMFS-permitted EM service provider. NMFS estimates the annual average cost burden per vessel from this requirement to be approximately $5,600.

If denied an EM Authorization, vessel owners would be able to appeal NMFS's decision through the existing appeal process at § 660.25(g). NMFS estimates the time burden associated with preparing and submitting an appeal to be approximately 4 hours per entity, with a cost of $3.00 for copies and postage. Vessel owners would be able to make modifications to their VMPs during the year by submitting a request and amended VMP to NMFS. These requests would be made electronically via email and, therefore, would not be expected to have a cost burden associated with them. NMFS estimates the time burden associated with this requirement from preparing and submitting the request to be 0.5 hours per request per entity.

Vessel owners would be required to renew their EM authorization annually. This is necessary to ensure that the vessel owners' contact information, VMPs, and fishing plans remain up to date. Industry participants raised concerns with the time burden associated with having to complete the application process each year, as was proposed in an earlier draft of the regulations. To address these concerns, NMFS is proposing to instead provide vessel owners with pre-filled renewal forms and their current VMPs to review and certify as correct in a simplified renewal process. NMFS estimates a time burden of approximately 0.5 hours per entity to review and return the pre-filled package.

Vessel operators would be required to complete and submit a logbook for each trip, with an estimated time burden of 10 minutes per submission. The logbooks are provided by NMFS and state agencies, so the cost of requirement mainly derives from postage at $0.46 per submission. To eliminate duplication, NMFS would allow vessel operators to submit a state logbook that contains all the required information. Vessel operators would also be required to submit the hard drive containing video data to NMFS (in 2017-2019) or the EM service provider (2020-beyond) using a method that provides a return receipt. This is necessary for NMFS and vessel operators to be able to track submissions. This requirement has an average cost of $15.00 per submission and a time burden of 10 min to retrieve and package the hard drive for mailing.

EM service providers would be required to apply to receive a permit from NMFS to provide EM services in the fishery. EM service providers would be required to submit an application to NMFS that includes an application form, an EM Service Plan that describes how they plan to provide services to the fishery, and statements of prior experience and qualifications. If requested, the EM service provider may also be required to provide NMFS copies of contracts with vessel owners and standard operating procedures and manuals describing their operations in more detail. In an earlier draft of the regulations, NMFS proposed requirements very similar to those for observer service providers, with minimal requirements for the provider and NMFS training and certifying individual observers. However, at the November 2015 Council meeting EM service providers commented that different service providers may have different models and that this model is not appropriate for EM services providers. Some EM service providers may employ less highly trained analysts to initially review video and a biologist to verify species identification. Whereas another service provider may employ highly trained biologists to do it all. They recommended that the regulations provide more flexibility for different business models. This proposed rule contains an expanded application process, incorporating an EM Service Plan, to provide the flexibility that service providers seek. The addition of an EM Service Plan allows NMFS to consider different business models proposed by different providers as meeting the EM program requirements. However, this requires EM service providers prepare and submit a detailed service plan and other documents, in order to provide NMFS with sufficient information to evaluate them. NMFS estimates the time and cost burden associated with preparing and submitting the permit application to be 47 hours and $30 (for copies and postage). Most likely much of this information would be submitted electronically. If requested by NMFS, EM service providers would be required to provide NMFS two EM units and two copies of any software for EM data analysis for a minimum of 90 days for evaluation. Due to their use by NMFS, the value of the EM units may depreciate and the EM service providers may not be able to resell the EM units for their full value. NMFS estimates the EM providers would be able to recoup 50 percent of the EM unit value at approximately $5,000 per unit. This results in a total cost associated with this requirement at $10,215 per provider (including $215 in materials and postage to send the equipment to NMFS).

An EM service provider would be able to appeal a permit decision to NMFS following the procedures at § 660.19. NMFS estimates the time and cost burden of preparing and submitting an appeal to be 4 hours and $5 per entity. EM service providers would be able to make modifications to their EM Service Plans during the year by submitting a request and amended EM Service Plan to NMFS via email (2 hours per submission). EM service providers would be required to renew their permits annually. At the April 2016 Council meeting, EM service providers requested a longer effective period to provide more stability for planning for future fishing years. Therefore, in this proposed rule NMFS is proposing an abbreviated renewal process in which NMFS would provide pre-filled renewal forms and the current EM Service Plan for the EM service provider to review and certify. This would reduce the time burden for EM service providers, while ensuring NMFS has up-to-date information. NMFS estimates the annual time and cost burden of the renewal to be 1 hour and $5 per entity.

In 2017-2019, EM service providers would be responsible for providing technical assistance and maintenance services to EM vessels. EM service providers would be required to provide technical support to vessels at sea, with an annual time burden of approximately 7 hours per entity. EM service providers and their employees would also be required to report instances of non-compliance by vessel owners and intimidation or harassment of EM technicians to NMFS. The estimated burden for reporting these events is 30 minutes per report (18 hours per entity per year). Employees of EM service providers may be debriefed by NMFS or OLE on technical or compliance issues with an estimated burden of 1 hour per trip (350 hours per entity per year).

Beginning in 2020, EM service providers would also be responsible for reviewing video from trips, preparing and submitting catch data and compliance reports to NMFS, and providing feedback to vessel operators on their catch handling, camera views, etc. NMFS would prepare burden estimates for these requirements for OMB approval and public comment through a Federal Register notice in 2019 or earlier.

Public reporting burden for these requirements includes the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information.

For the reasons stated in the preamble, NMFS proposes to amend 50 CFR part 660 as follows: