Federal Register Vol. 82, No.55,

A proposed rule was published in the Federal Register on November 25, 2016 (81 FR 85164) that would revise the grade standards to permit certification of red colored walnuts. Such a change would facilitate the marketing of increasingly popular red varieties of walnuts in both domestic and export markets.

The 60-day comment period provided in the proposed rule closed January 24, 2017. The comment period for the proposed rule is reopened until April 24, 2017. AMS is reopening the public comment period for 30 days to ensure that interested persons have sufficient time to review and comment on the proposed rule.

Comments Invited

We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2017-0130; Directorate Identifier 2016-NM-058-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD based on those comments.

We will post all comments we receive, without change, to http://www.regulations.gov, including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive about this proposed AD.

The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2013-0255, dated October 23, 2013 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for all Dassault Aviation Model MYSTERE-FALCON 50 airplanes and FALCON 2000 airplanes. The MCAI states:

You may examine the MCAI in the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2017-0130.

Dassault has issued the following service information:

• Dassault Service Bulletin F50-510, Revision 2, dated December 20, 2012; and Dassault Service Bulletin F2000-382, Revision 2, dated May 12, 2011. This service information describes procedures for an inspection of the brake hoses to identify whether brake hoses having certain part numbers are installed, and installation of protective wraps on the brake hoses or installation of certain brake hoses that are fitted with Dacron sleeves. These documents are distinct since they apply to different airplane models.

• Dassault Service Bulletin F50-518, dated April 14, 2011; and Dassault Service Bulletin F2000-368, dated May 29, 2009. This service information describes replacement of certain brake hoses. These documents are distinct since they apply to different airplane models.

This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all pertinent information and determined an unsafe condition exists and is likely to exist or develop on other products of these same type designs.

We estimate that this proposed AD affects 302 airplanes of U.S. registry.

We estimate the following costs to comply with this proposed AD:

We estimate the following costs to do any necessary installations and replacements that would be required based on the results of the proposed inspection. We have no way of determining the number of airplanes that might need these installations and replacements:

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.

We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.

For the reasons discussed above, I certify this proposed regulation:

1. Is not a “significant regulatory action” under Executive Order 12866;

2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979);

3. Will not affect intrastate aviation in Alaska; and

4. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:

Comments Invited

We invite you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2017-0131; Directorate Identifier 2016-NM-186-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD because of those comments.

We will post all comments we receive, without change, to http://www.regulations.gov, including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive about this proposed AD.

We have received a report of fatigue cracking found in a certain fuselage frame, Station (STA) 947.5 on the right side, common to the water tank support intercostal clip located between certain stringers, S-24R and S-25R. Ten cracks were reported on airplanes having line numbers 2566 through 3132. Those airplanes had accumulated between 39,400 and 51,745 total flight cycles. The reported cracks were between 0.184 and 1.125 inch long. These cracks were found to be caused by fatigue caused by cyclic loading of the fuselage, and out-of-plane bending of the frame caused by the water tank loads. Fatigue cracking, if not corrected, could grow in size and result in a severed frame. Multiple adjacent severed frames would result in reduced structural integrity of the airplane.

We reviewed Boeing Alert Service Bulletin 737-53A1357, dated August 9, 2016. The service information describes procedures for inspections for any cracking of a certain fuselage frame, and repair if necessary. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

We are proposing this AD because we evaluated all the relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of the same type design.

This proposed AD would require accomplishing the actions specified in the service information described previously. For information on the procedures and compliance times, see this service information at http://www.regulations.gov by searching for and locating Docket No. FAA-2017-0131.

We estimate that this proposed AD affects 140 airplanes of U.S. registry. We estimate the following costs to comply with this proposed AD:

We estimate the following costs to do any necessary repairs that would be required based on the results of the proposed inspection. We have no way of determining the number of aircraft that might need this repair:

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.

We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.

For the reasons discussed above, I certify this proposed regulation:

(1) Is not a “significant regulatory action” under Executive Order 12866,

(2) Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),

(3) Will not affect intrastate aviation in Alaska, and

(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:

Comments Invited

We invite you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2016-9387; Directorate Identifier 2016-NM-182-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD based on those comments.

We will post all comments we receive, without change, to http://www.regulations.gov, including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive about this proposed AD.

Transport Canada Civil Aviation (TCCA), which is the aviation authority for Canada, has issued Canadian Airworthiness Directive CF-2016-26, dated September 14, 2016 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for certain Bombardier, Inc. Model BD-100-1A10 airplanes. The MCAI states:

Required actions include modifying the equipment racks. You may examine the MCAI in the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-9387.

We reviewed Bombardier Service Bulletin 100-25-39, dated October 26, 2015; and Bombardier Service Bulletin 350-25-002, dated October 26, 2015. This service information describes procedures for modifying the equipment racks. These documents are distinct since they apply to airplanes having different serial numbers. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all pertinent information and determined an unsafe condition exists and is likely to exist or develop on other products of the same type design.

We estimate that this proposed AD affects 161 airplanes of U.S. registry.

We estimate the following costs to comply with this proposed AD:

According to the manufacturer, some of the costs of this proposed AD may be covered under warranty, thereby reducing the cost impact on affected individuals. We do not control warranty coverage for affected individuals. As a result, we have included all costs in our cost estimate.

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.

We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.

For the reasons discussed above, I certify this proposed regulation:

1. Is not a “significant regulatory action” under Executive Order 12866;

2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979);

3. Will not affect intrastate aviation in Alaska; and

4. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:

Authority for This Rulemaking

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it would amend Class E airspace at Soldotna Airport, Soldotna, AK, to conform the airspace to the size necessary for the current arrivals.

Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal. Communications should identify both docket numbers and be submitted in triplicate to the address listed above. Persons wishing the FAA to acknowledge receipt of their comments on this notice must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. FAA-2016-9588/Airspace Docket No. 16-AAL-5.” The postcard will be date/time stamped and returned to the commenter.

All communications received before the specified closing date for comments will be considered before taking action on the proposed rule. The proposal contained in this notice may be changed in light of the comments received. A report summarizing each substantive public contact with FAA personnel concerned with this rulemaking will be filed in the docket.

An electronic copy of this document may be downloaded through the Internet at http://www.regulations.gov. Recently published rulemaking documents can also be accessed through the FAA's Web page at http://www.faa.gov/air_traffic/publications/airspace_amendments/.

You may review the public docket containing the proposal, any comments received, and any final disposition in person in the Dockets Office (see the ADDRESSES section for the address and phone number) between 9:00 a.m. and 5:00 p.m., Monday through Friday, except federal holidays. An informal docket may also be examined during normal business hours at the Northwest Mountain Regional Office of the Federal Aviation Administration, Air Traffic Organization, Western Service Center, Operations Support Group, 1601 Lind Avenue SW., Renton, WA 98057.

This document proposes to amend FAA Order 7400.11A, Airspace Designations and Reporting Points, dated August 3, 2016, and effective September 15, 2016. FAA Order 7400.11A is publicly available as listed in the ADDRESSES section of this document. FAA Order 7400.11A lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

The FAA is proposing an amendment to Title 14 Code of Federal Regulations (14 CFR) Part 71 by modifying Class E airspace extending upward from 700 feet above the surface at Soldotna Airport, Soldotna, AK. This proposed action is necessary because the airspace as configured exceeds the minimum size required for the current arrivals. The portion of airspace within a 10.1-mile radius of the Soldotna Airport and within 4 miles either side of the 270 degree bearing of the Soldotna NDB would be revised from 4 miles to 2.4 miles and the reference to the NDB would be changed to the Soldotna Airport. The portion of airspace extending from the 10.1-mile radius to 21 miles west of the Soldotna Airport would be modified to 11 miles west of the airport. The portion of airspace within 4 miles south of the 090 degree bearing of the Soldotna Airport would be revised to 3.5 miles.

Class E airspace designations are published in paragraph 6004, 6005, and 6006, of FAA Order 7400.11A, dated August 3, 2016, and effective September 15, 2016, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designations listed in this document will be published subsequently in the Order.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current, is non-controversial and unlikely to result in adverse or negative comments. It, therefore: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule, when promulgated, would not have a significant economic impact on a substantial number of small entities under the Environmental Review.

This proposal will criteria of the Regulatory Flexibility Act.be subject to an environmental analysis in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures” prior to any FAA final regulatory action.

Accordingly, pursuant to the authority delegated to me, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:

Authority for This Rulemaking

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it would amend Class E airspace at Bishop Airport, Bishop, CA.

Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal. Communications should identify both docket numbers and be submitted in triplicate to the address listed above. Persons wishing the FAA to acknowledge receipt of their comments on this notice must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. FAA-2016-9474/Airspace Docket No. 16-ANM-24”. The postcard will be date/time stamped and returned to the commenter.

All communications received before the specified closing date for comments will be considered before taking action on the proposed rule. The proposal contained in this notice may be changed in light of the comments received. A report summarizing each substantive public contact with FAA personnel concerned with this rulemaking will be filed in the docket.

An electronic copy of this document may be downloaded through the Internet at http://www.regulations.gov. Recently published rulemaking documents can also be accessed through the FAA's Web page at http://www.faa.gov/air_traffic/publications/airspace_amendments/.

You may review the public docket containing the proposal, any comments received, and any final disposition in person in the Dockets Office (see the ADDRESSES section for the address and phone number) between 9:00 a.m. and 5:00 p.m., Monday through Friday, except federal holidays. An informal docket may also be examined during normal business hours at the Northwest Mountain Regional Office of the Federal Aviation Administration, Air Traffic Organization, Western Service Center, Operations Support Group, 1601 Lind Avenue SW., Renton, WA 98057.

This document proposes to amend FAA Order 7400.11A, Airspace Designations and Reporting Points, dated August 3, 2016, and effective September 15, 2016. FAA Order 7400.11A is publicly available as listed in the ADDRESSES section of this document. FAA Order 7400.11A lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

The FAA is proposing an amendment to Title 14 Code of Federal Regulations (14 CFR) Part 71 by modifying Class E surface area airspace, modifying Class E airspace extending upward from 700 feet above the surface, and establishing Class E surface area airspace designated as an extension, at Bishop Airport (formerly Eastern Sierra Regional Airport), Bishop, CA.

Class E surface area airspace would be modified to within a 5-mile radius (from a 4.2-mile radius) of Bishop Airport, with 2 segments extending from the 5-mile radius to 6.9 miles northwest of the airport, and 9.6 miles north-northwest of the airport, respectively.

Class E airspace extending upward from 700 feet above the surface would be modified to within a 6.7-mile radius of Bishop Airport, with a 7.2-mile wide segment extending to 11.5 miles northeast of the airport. Also, the Class E airspace extending upward from 1,200 feet above the surface would be reduced to a small area southeast of the airport as the current configuration largely duplicates the Coaldale, NV, Class E en route airspace area. Additionally, Class E airspace extending upward from 12,500 feet MSL would be removed, as this airspace supports no current IFR operations.

These airspace modifications are necessary for the safety and management of IFR operations in standard instrument approach and departure procedures at the airport. The airport name would be changed to be in concert with the FAA's aeronautical database.

Class E airspace designations are published in paragraph 6002, 6004, and 6005, respectively, of FAA Order 7400.11A, dated August 3, 2016, and effective September 15, 2016, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designations listed in this document will be published subsequently in the Order.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current, is non-controversial and unlikely to result in adverse or negative comments. It, therefore: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule, when promulgated, would not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

This proposal will be subject to an environmental analysis in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures” prior to any FAA final regulatory action.

Accordingly, pursuant to the authority delegated to me, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:

This notice of intent is issued pursuant to the temporary scheduling provisions of 21 U.S.C. 811(h). DEA intends to issue a temporary order to add 4-fluoroisobutyryl fentanyl to Schedule I under the Controlled Substances Act.1 The temporary scheduling order will be published in the Federal Register, but that order will not be issued before April 24, 2017.

The Drug Enforcement Administration (DEA) implements and enforces titles II and III of the Comprehensive Drug Abuse Prevention and Control Act of 1970, as amended. 21 U.S.C. 801-971. Titles II and III are referred to as the “Controlled Substances Act” and the “Controlled Substances Import and Export Act,” respectively, and are collectively referred to as the “Controlled Substances Act” or the “CSA” for the purpose of this action. The DEA publishes the implementing regulations for these statutes in title 21 of the Code of Federal Regulations (CFR), chapter II. The CSA and its implementing regulations are designed to prevent, detect, and eliminate the diversion of controlled substances and listed chemicals into the illicit market while providing for the legitimate medical, scientific, research, and industrial needs of the United States. Controlled substances have the potential for abuse and dependence and are controlled to protect the public health and safety.

Under the CSA, each controlled substance is classified into one of five schedules based upon its potential for abuse, its currently accepted medical use in treatment in the United States, and the degree of dependence the drug or other substance may cause. 21 U.S.C. 812. The initial schedules of controlled substances established by Congress are found at 21 U.S.C. 812(c), and the current list of all scheduled substances is published at 21 CFR part 1308.

Section 201 of the CSA, 21 U.S.C. 811, provides the Attorney General with the authority to temporarily place a substance into Schedule I of the CSA for two years without regard to the requirements of 21 U.S.C. 811(b) if he finds that such action is necessary to avoid imminent hazard to the public safety. 21 U.S.C. 811(h)(1). In addition, if proceedings to control a substance are initiated under 21 U.S.C. 811(a)(1), the Attorney General may extend the temporary scheduling for up to one year. 21 U.S.C. 811(h)(2).

Where the necessary findings are made, a substance may be temporarily scheduled if it is not listed in any other schedule under section 202 of the CSA, 21 U.S.C. 812, or if there is no exemption or approval in effect for the substance under section 505 of the Federal Food, Drug, and Cosmetic Act (FDCA), 21 U.S.C. 355. 21 U.S.C. 811(h)(1); 21 CFR part 1308. The Attorney General has delegated scheduling authority under 21 U.S.C. 811 to the Administrator of the DEA. 28 CFR 0.100.

Section 201(h)(4) of the CSA, 21 U.S.C. 811(h)(4), requires the Administrator to notify the Secretary of the Department of Health and Human Services (HHS) of his intention to temporarily place a substance into Schedule I of the CSA.2 The Administrator transmitted notice of his intent to place 4-fluoroisobutyryl fentanyl in Schedule I on a temporary basis to the Assistant Secretary by letter dated January 5, 2017. The Assistant Secretary responded to this notice by letter dated January 17, 2017, and advised that based on a review by the Food and Drug Administration (FDA), there are currently no investigational new drug applications or approved new drug applications for 4-fluoroisobutyryl fentanyl. The Assistant Secretary also stated that the HHS has no objection to the temporary placement of 4-fluoroisobutyryl fentanyl into Schedule I of the CSA. 4-Fluoroisobutyryl fentanyl is not currently listed in any schedule under the CSA, and no exemptions or approvals are in effect for 4-fluoroisobutyryl fentanyl under section 505 of the FDCA, 21 U.S.C. 355. The DEA has found that the control of 4-fluoroisobutyryl fentanyl in Schedule I on a temporary basis is necessary to avoid an imminent hazard to the public safety.

To find that placing a substance temporarily into Schedule I of the CSA is necessary to avoid an imminent hazard to the public safety, the Administrator is required to consider three of the eight factors set forth in 21 U.S.C. 811(c): The substance's history and current pattern of abuse; the scope, duration and significance of abuse; and what, if any, risk there is to the public health. 21 U.S.C. 811(h)(3). Consideration of these factors includes actual abuse, diversion from legitimate channels, and clandestine importation, manufacture, or distribution. 21 U.S.C. 811(h)(3).

A substance meeting the statutory requirements for temporary scheduling may only be placed in Schedule I. 21 U.S.C. 811(h)(1). Substances in Schedule I are those that have a high potential for abuse, no currently accepted medical use in treatment in the United States, and a lack of accepted safety for use under medical supervision. 21 U.S.C. 812(b)(1).

The chemical structure of 4-fluoroisobutyryl fentanyl was first described in 1999 in the scientific literature. No approved medical use has been identified for 4-fluoroisobutyryl fentanyl, nor has it been approved by the FDA for human consumption. The recent identification of 4-fluoroisobutyryl fentanyl in drug evidence and the identification of this substance in association with fatal overdose events indicate that this substance is being abused for its opioid properties.

Available data and information for 4-fluoroisobutyryl fentanyl, summarized below, indicate that this synthetic opioid has a high potential for abuse, no currently accepted medical use in treatment in the United States, and a lack of accepted safety for use under medical supervision. The DEA's three-factor analysis is available in its entirety under “Supporting and Related Material” of the public docket for this action at www.regulations.gov under Docket Number DEA-452.

The recreational abuse of fentanyl-like substances continues to be a significant concern. These substances are distributed to users, often with unpredictable outcomes. 4-Fluoroisobutyryl fentanyl has recently been encountered by law enforcement and public health officials and the adverse health effects and outcomes are demonstrated by fatal overdose cases. The documented negative effects of 4-fluoroisobutyryl fentanyl are consistent with those of other opioids. On October 1, 2014, the DEA implemented STARLiMS (a web-based, commercial laboratory information management system) to replace the System to Retrieve Information from Drug Evidence (STRIDE) as its laboratory drug evidence data system of record. DEA laboratory data submitted after September 30, 2014, are reposited in STARLiMS. Data from STRIDE and STARLiMS were queried on December 21, 2016. STARLiMS registered 21 reports containing 4-fluoroisobutyryl fentanyl, all reported in 2016, from Florida, Maryland, Mississippi, New Jersey, New York, Texas, and the District of Columbia. According to STARLiMS, the first laboratory submission of 4-fluoroisobutyryl fentanyl occurred in March 2016 in Maryland. The DEA is not aware of any laboratory identifications of 4-fluoroisobutyryl fentanyl prior to 2016.

The National Forensic Laboratory Information System (NFLIS) is a national drug forensic laboratory reporting system that systematically collects results from drug chemistry analyses conducted by other federal, state and local forensic laboratories across the country. According to NFLIS, the only report of 4-fluoroisobutyryl fentanyl from state or local forensic laboratories was recorded in August 2016 in Pennsylvania. Due to normal lag time in reporting, NFLIS data from August through November 2016 is incomplete.3

Evidence suggests that the pattern of abuse of fentanyl analogues, including 4-fluoroisobutyryl fentanyl, parallels that of heroin and prescription opioid analgesics. Seizures of 4-fluoroisobutyryl fentanyl have been encountered in powder form and packaged similar to that of heroin. 4-Fluoroisobutyryl fentanyl has been encountered as a single substance as well as in combination with other substances of abuse, including heroin, fentanyl, furanyl fentanyl, methamphetamine, and cocaine. 4-Fluoroisobutyryl fentanyl has been connected to fatal overdoses, in which insufflation and intravenous routes of administration are documented.

Reports collected by the DEA demonstrate 4-fluoroisobutyryl fentanyl is being abused for its opioid properties. This abuse of 4-fluoroisobutyryl fentanyl has resulted in morbidity and mortality (see DEA 3-Factor Analysis for full discussion). The DEA has received reports for at least 62 confirmed fatalities associated with 4-fluoroisobutyryl fentanyl. Information on these deaths, occurring as early as August 2016, was collected from post-mortem toxicology and medical examiner reports by the DEA. These deaths were reported from, and occurred in, Maryland. NFLIS and STARLiMS have a total of 22 drug reports in which 4-fluoroisobutyryl fentanyl was identified in drug exhibits submitted to forensic laboratories in 2016 from law enforcement encounters in Florida, Maryland, Mississippi, New Jersey, New York, Pennsylvania, Texas, and the District of Columbia. It is likely that the prevalence of 4-fluoroisobutyryl fentanyl in opioid analgesic-related emergency room admissions and deaths is underreported as standard immunoassays may not differentiate this substance from fentanyl.

The population likely to abuse 4-fluoroisobutyryl fentanyl overlaps with the population abusing prescription opioid analgesics and heroin. This is evidenced by the routes of drug administration and drug use history documented in 4-fluoroisobutyryl fentanyl fatal overdose cases. Because abusers of 4-fluoroisobutyryl fentanyl are likely to obtain this substance through unregulated sources, the identity, purity, and quantity are uncertain and inconsistent, thus posing significant adverse health risks to the end user. Individuals who initiate (i.e. use a drug for the first time) 4-fluoroisobutyryl fentanyl abuse are likely to be at risk of developing substance use disorder, overdose, and death similar to that of other opioid analgesics (e.g., fentanyl, morphine, etc.).

4-Fluoroisobutyryl fentanyl exhibits pharmacological profiles similar to that of fentanyl and other μ-opioid receptor agonists. The toxic effects of 4-fluoroisobutyryl fentanyl in humans are demonstrated by overdose fatalities involving this substance. Abusers of 4-fluoroisobutyryl fentanyl may not know the origin, identity, or purity of this substance, thus posing significant adverse health risks when compared to abuse of pharmaceutical preparations of opioid analgesics, such as morphine and oxycodone.

Based on information received by the DEA, the abuse of 4-fluoroisobutyryl fentanyl leads to the same qualitative public health risks as heroin, fentanyl and other opioid analgesic substances. As with any non-medically approved opioid, the health and safety risks for users are great. The public health risks attendant to the abuse of heroin and opioid analgesics are well established and have resulted in large numbers of drug treatment admissions, emergency department visits, and fatal overdoses.

4-Fluoroisobutyryl fentanyl has been associated with numerous fatalities. At least 62 confirmed overdose deaths involving 4-fluoroisobutyryl fentanyl abuse have been reported from Maryland in 2016. As the data demonstrates, the potential for fatal and non-fatal overdoses exists for 4-fluoroisobutyryl fentanyl and 4-fluoroisobutyryl fentanyl poses an imminent hazard to the public safety.

In accordance with 21 U.S.C. 811(h)(3), based on the available data and information, summarized above, the continued uncontrolled manufacture, distribution, reverse distribution, importation, exportation, conduct of research and chemical analysis, possession, and abuse of 4-fluoroisobutyryl fentanyl poses an imminent hazard to the public safety. The DEA is not aware of any currently accepted medical uses for 4-fluoroisobutyryl fentanyl in the United States. A substance meeting the statutory requirements for temporary scheduling, 21 U.S.C. 811(h)(1), may only be placed in Schedule I. Substances in Schedule I are those that have a high potential for abuse, no currently accepted medical use in treatment in the United States, and a lack of accepted safety for use under medical supervision. Available data and information for 4-fluoroisobutyryl fentanyl indicate that this substance has a high potential for abuse, no currently accepted medical use in treatment in the United States, and a lack of accepted safety for use under medical supervision. As required by section 201(h)(4) of the CSA, 21 U.S.C. 811(h)(4), the Administrator, through a letter dated January 5, 2017, notified the Assistant Secretary of the DEA's intention to temporarily place this substance in Schedule I.

This notice of intent initiates a temporary scheduling process and provides the 30-day notice pursuant to section 201(h) of the CSA, 21 U.S.C. 811(h), of DEA's intent to issue a temporary scheduling order. In accordance with the provisions of section 201(h) of the CSA, 21 U.S.C. 811(h), the Administrator considered available data and information, herein set forth the grounds for his determination that it is necessary to temporarily schedule 4-fluoroisobutyryl fentanyl in Schedule I of the CSA, and finds that placement of this synthetic opioid substance into Schedule I of the CSA is necessary in order to avoid an imminent hazard to the public safety.

The temporary placement of 4-fluoroisobutyryl fentanyl into schedule I of the CSA will take effect upon publication of a temporary scheduling order, which will not be issued before April 24, 2017. Because the Administrator hereby finds that it is necessary to temporarily place 4-fluoroisobutyryl fentanyl into Schedule I to avoid an imminent hazard to the public safety, the temporary order scheduling this substance will be effective on the date that order is published in the Federal Register, and will be in effect for a period of two years, with a possible extension of one additional year, pending completion of the regular (permanent) scheduling process. 21 U.S.C. 811(h)(1) and (2). It is the intention of the Administrator to issue a temporary scheduling order as soon as possible after the expiration of 30 days from the date of publication of this notice. Upon publication of the temporary order, 4-fluoroisobutyryl fentanyl will then be subject to the regulatory controls and administrative, civil, and criminal sanctions applicable to the manufacture, distribution, reverse distribution, importation, exportation, research, conduct of instructional activities and chemical analysis, and possession of a Schedule I controlled substance.

The CSA sets forth specific criteria for scheduling a drug or other substance. Regular scheduling actions in accordance with 21 U.S.C. 811(a) are subject to formal rulemaking procedures done “on the record after opportunity for a hearing” conducted pursuant to the provisions of 5 U.S.C. 556 and 557. 21 U.S.C. 811. The regular scheduling process of formal rulemaking affords interested parties with appropriate process and the government with any additional relevant information needed to make a determination. Final decisions that conclude the regular scheduling process of formal rulemaking are subject to judicial review. 21 U.S.C. 877. Temporary scheduling orders are not subject to judicial review. 21 U.S.C. 811(h)(6).

Section 201(h) of the CSA, 21 U.S.C. 811(h), provides for a temporary scheduling action where such action is necessary to avoid an imminent hazard to the public safety. As provided in this subsection, the Attorney General may, by order, schedule a substance in Schedule I on a temporary basis. Such an order may not be issued before the expiration of 30 days from (1) the publication of a notice in the Federal Register of the intention to issue such order and the grounds upon which such order is to be issued, and (2) the date that notice of the proposed temporary scheduling order is transmitted to the Assistant Secretary of HHS. 21 U.S.C. 811(h)(1).

Inasmuch as section 201(h) of the CSA directs that temporary scheduling actions be issued by order and sets forth the procedures by which such orders are to be issued, the DEA believes that the notice and comment requirements of section 553 of the Administrative Procedure Act (APA), 5 U.S.C. 553, do not apply to this notice of intent. In the alternative, even assuming that this notice of intent might be subject to section 553 of the APA, the Administrator finds that there is good cause to forgo the notice and comment requirements of section 553, as any further delays in the process for issuance of temporary scheduling orders would be impracticable and contrary to the public interest in view of the manifest urgency to avoid an imminent hazard to the public safety.

Although the DEA believes this notice of intent to issue a temporary scheduling order is not subject to the notice and comment requirements of section 553 of the APA, the DEA notes that in accordance with 21 U.S.C. 811(h)(4), the Administrator will take into consideration any comments submitted by the Assistant Secretary with regard to the proposed temporary scheduling order.

Further, the DEA believes that this temporary scheduling action is not a “rule” as defined by 5 U.S.C. 601(2), and, accordingly, is not subject to the requirements of the Regulatory Flexibility Act (RFA). The requirements for the preparation of an initial regulatory flexibility analysis in 5 U.S.C. 603(a) are not applicable where, as here, the DEA is not required by section 553 of the APA or any other law to publish a general notice of proposed rulemaking.

Additionally, this action is not a significant regulatory action as defined by Executive Order 12866 (Regulatory Planning and Review), section 3(f), and, accordingly, this action has not been reviewed by the Office of Management and Budget.

This action will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with Executive Order 13132 (Federalism) it is determined that this action does not have sufficient federalism implications to warrant the preparation of a Federalism Assessment.

For the reasons set out above, the DEA proposes to amend 21 CFR part 1308 as follows:

In the final rules section of this Federal Register, the EPA is approving the State's SIP submittal as a direct rule without prior proposal because the Agency views this as noncontroversial submittal and anticipates no adverse comments. A detailed rationale for the approval is set forth in the direct final rule. If no relevant adverse comments are received in response to this action no further activity is contemplated. If the EPA receives relevant adverse comments, the direct final rule will be withdrawn and all public comments received will be addressed in a subsequent final rule based on this proposed rule. The EPA will not institute a second comment period. Any parties interested in commenting on this action should do so at this time.

For additional information, see the direct final rule which is located in the rules section of this Federal Register.

I. General Information A. Does this action apply to me?

You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include:

• Crop production (NAICS code 111).

• Animal production (NAICS code 112).

• Food manufacturing (NAICS code 311).

• Pesticide manufacturing (NAICS code 32532).

If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under FOR FURTHER INFORMATION CONTACT for the division listed at the end of the pesticide petition summary of interest.

1. Submitting CBI. Do not submit this information to EPA through regulations.gov or email. Clearly mark the part or all of the information that you claim to be CBI. For CBI information in a disk or CD-ROM that you mail to EPA, mark the outside of the disk or CD-ROM as CBI and then identify electronically within the disk or CD-ROM the specific information that is claimed as CBI. In addition to one complete version of the comment that includes information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2.

2. Tips for preparing your comments. When preparing and submitting your comments, see the commenting tips at http://www.epa.gov/dockets/comments.html.

3. Environmental justice. EPA seeks to achieve environmental justice, the fair treatment and meaningful involvement of any group, including minority and/or low-income populations, in the development, implementation, and enforcement of environmental laws, regulations, and policies. To help address potential environmental justice issues, the Agency seeks information on any groups or segments of the population who, as a result of their location, cultural practices, or other factors, may have atypical or disproportionately high and adverse human health impacts or environmental effects from exposure to the pesticides discussed in this document, compared to the general population.

EPA is announcing its receipt of several pesticide petitions filed under section 408 of the Federal Food, Drug, and Cosmetic Act (FFDCA), 21 U.S.C. 346a, requesting the establishment or modification of regulations in 40 CFR part 174 and part 180 for residues of pesticide chemicals in or on various food commodities. The Agency is taking public comment on the requests before responding to the petitioners. EPA is not proposing any particular action at this time. EPA has determined that the pesticide petitions described in this document contain the data or information prescribed in FFDCA section 408(d)(2), 21 U.S.C. 346a(d)(2); however, EPA has not fully evaluated the sufficiency of the submitted data at this time or whether the data support granting of the pesticide petitions. After considering the public comments, EPA intends to evaluate whether and what action may be warranted. Additional data may be needed before EPA can make a final determination on these pesticide petitions.

Pursuant to 40 CFR 180.7(f), a summary of each of the petitions that are the subject of this document, prepared by the petitioner, is included in a docket EPA has created for each rulemaking. The docket for each of the petitions is available at http://www.regulations.gov.

As specified in FFDCA section 408(d)(3), 21 U.S.C. 346a(d)(3), EPA is publishing notice of the petitions so that the public has an opportunity to comment on these requests for the establishment or modification of regulations for residues of pesticides in or on food commodities. Further information on the petitions may be obtained through the petition summaries referenced in this unit.

1. PP 5E8439. (EPA-HQ-OPP-2016-0066). Dow AgroSciences, LLC, 9330 Zionsville Road Indianapolis, IN 46268, requests to establish a tolerance in 40 CFR part 180.638 for residues of the herbicide, pyroxsulam, in or on teff, grain at 0.01 ppm, teff, forage at 0.06 ppm, teff, hay at 0.01 ppm, and teff, straw at 0.03 ppm. The Dow AgroSciences Method GRM 04/17 is used to measure and evaluate the chemical residues of pyroxsulam in wheat commodities. Contact: RD.

2. PP 6E8496. (EPA-HQ-OPP-2016-0516). Interregional Research Project No.4 (IR-4), 500 College Road East, Suite 201W, Princeton, NJ 08540, requests to establish tolerances in 40 CFR part 180.478 for residues of the herbicide rimsulfuron, N-[[(4,6-dimethoxy-2-pyrimidinyl)amino] carbonyl]-3-(ethylsulfonyl)-2-pyridinesulfonamide, including its metabolites and degradates, in or on berry, low growing, except strawberry, subgroup 13-07H at 0.01 parts per million (ppm), fruit, citrus, group 10-10 at 0.01 ppm, fruit, pome, group 11-10 at 0.01 ppm, fruit, stone, group 12-12 at 0.01 ppm, nut, tree, group 14-12 at 0.01 ppm, vegetable, tuberous and corm, subgroup 1C at 0.1 ppm, fruit, small, vine climbing, except fuzzy kiwifruit, subgroup 13-07F at 0.01 ppm, and tolerances with regional restrictions in or on fescue, forage at 0.01 ppm; fescue, hay at 0.01 ppm; ryegrass, perennial, hay at 0.01 ppm, and ryegrass, perennial, forage at 0.01 ppm. Analytical methodology, high-pressure liquid chromatography with Electrospray Ionization/tandem Mass Spectrometry (ESI-MS/MS) detection, is available for enforcement purposes. The two methods are “Analytical Method for the Determination of Rimsulfuron in Watery and Dry Crop Matrices by High Performance Liquid Chromatography (HPLC)/ESI-MS/MS”, DuPont Report 15033 and “Analytical Method for the Determination of Rimsulfuron in Oily Crop Matrices by HPLC/ESI-MS/MS”, DuPont Report 15027. The limit of quantitation for rimsulfuron with these methods, in raw agricultural commodities and in processed fractions, is 0.01 ppm. Contact RD

3. PP 6E8510. (EPA-HQ-OPP-2016-0651). Interregional Research Project No.4 (IR-4), 500 College Road East, Suite 201W, Princeton, NJ 08540, requests to establish tolerances in 40 CFR part 180.458 for residues of the sum of the herbicide clethodim, 2-[(1E)-1-[[[(2E)-3-chloro-2-propenyl]oxy]imino]propyl]-5-[2-(ethylthio)propyl]-3-hydroxy-2-cyclohexen-1-one, and its metabolites containing the 5-(2-ethylthiopropyl)cyclohexene-3-one and 5-(2-ethylthiopropyl)-5-hydroxycyclohexene-3-one moieties and their sulphoxides and sulphones, calculated as the stoichiometric equivalent of clethodim, in or on in or on the raw agricultural commodities: almond, hulls at 0.2 parts per million (ppm); brassica, leafy greens, subgroup 4-16B at 3.0 ppm; leaf petiole vegetable subgroup 22B at 0.60 ppm; leafy greens subgroup 4-16A at 2.0 ppm; nut, tree, group 14-12 at 0.2 ppm; okra at 1.5 ppm; onion, green, subgroup 3-07B at 2.0 ppm; stalk and stem vegetable subgroup 22A at 1.7 ppm; vegetable, brassica, head and stem, group 5-16 at 3.0 ppm; and vegetable, fruiting, group 8-10, except okra at 1.0 ppm. Practical analytical methods for detecting and measuring levels of clethodim have been developed and validated in/on all appropriate agricultural commodities and respective processing fractions. The LOQ of clethodim in the methods is 0.2 ppm, which will allow monitoring of food with residues at the levels proposed for the tolerances. Contact: RD.

4. PP 6F8512. (EPA-HQ-OPP-2016-0649). Nisso America Inc., on behalf of Nippon Soda Co., Ltd., 88 Pine Street, 14th Floor, New York, NY 10005, requests to establish tolerances in 40 CFR part 180.667 for residues of the fungicide, cyflufenamid, in or on cherry (crop sub-group 12-12A) at 0.6 ppm, fruiting vegetables (crop group 8-10) at 0.2 ppm, and hops at 5.0 ppm. A method was developed using solvent extraction of cyflufenamid from crops and analyzing sample extracts by LC/MS/MS. Contact: RD.

1. PP 6E8496. (EPA-HQ-OPP-2016-0516). Inter-regional Research Project No.4 (IR-4), 500 College Road East, Suite 201W, Princeton, NJ 08540, requests to amend the tolerance(s) in 40 CFR part 180.478 upon establishment of tolerances under PP 6E8496 of “New Tolerances” referenced above, by removing existing tolerances for residues of the herbicide rimsulfuron, N-[[(4,6-dimethoxy-2-pyrimidinyl)amino] carbonyl]-3-(ethylsulfonyl)-2-pyridinesulfonamide, including its metabolites and degradates in or on fruit, citrus, group 10 at 0.01 ppm; fruit, pome group 11 at 0.01 ppm; fruit, stone group 12 at 0.01 ppm; grape at 0.01 ppm; nut, tree group 14 at 0.01 ppm; pistachio at 0.01 ppm; and potato at 0.10 ppm. Analytical methodology, high-pressure liquid chromatography with ESI-MS/MS detection, is available for enforcement purposes. The two methods are “Analytical Method for the Determination of Rimsulfuron in Watery and Dry Crop Matrices by HPLC/ESI-MS/MS”, DuPont Report 15033 and “Analytical Method for the Determination of Rimsulfuron in Oily Crop Matrices by HPLC/ESI-MS/MS”, DuPont Report 15027. The limit of quantitation for rimsulfuron with these methods, in raw agricultural commodities and in processed fractions, is 0.01 ppm. Contact RD

2. PP 6E8510. (EPA-HQ-OPP-2016-0651). Inter-regional Research Project No.4 (IR-4), 500 College Road East, Suite 201W, Princeton, NJ 08540, requests to amend the tolerance(s) in 40 CFR part 180.458 upon establishment of tolerances under “New Tolerances” PP 6E8510 referenced above, by removing established tolerances superseded by this action for residues of the sum of the herbicide clethodim, 2-[(1E)-1-[[[(2E)-3-chloro-2-propenyl]oxy]imino]propyl]-5-[2-(ethylthio)propyl]-3-hydroxy-2-cyclohexen-1-one, and its metabolites containing the 5-(2-ethylthiopropyl)cyclohexene-3-one and 5-(2-ethylthiopropyl)-5-hydroxycyclohexene-3-one moieties and their sulphoxides and sulphones, calculated as the stoichiometric equivalent of clethodim in or on the raw agricultural commodities asparagus at 1.7 ppm; brassica, head and stem, subgroup 5A at 3.0 ppm; brassica, leafy greens, subgroup 5B at 3.0 ppm; leaf petioles subgroup 4B at 0.60 ppm; leafy greens subgroup 4A at 2.0 ppm; onion, green at 2.0 ppm; turnip, greens at 3.0 ppm; and vegetable, fruiting, group 8-10 at 1.0 ppm. Practical analytical methods for detecting and measuring levels of clethodim have been developed and validated in/on all appropriate agricultural commodities and respective processing fractions. The Limit of Quantitation (LOQ) of clethodim in the methods is 0.2 ppm, which will allow monitoring of food with residues at the levels proposed for the tolerances. Contact: RD.

1. PP 6G8523. (EPA-HQ-OPP-2014-0457). J.R. Simplot Company, 5369 W. Irving St., Boise, ID 83706, requests to amend an exemption from the requirement of a tolerance in 40 CFR 174.534 for residues of the plant-incorporated protectant (PIP) VNT1 protein in or on potato. The petitioner believes no analytical method is needed for enforcement purposes because the VNT1 protein concentration is lower than the detectable limit of 100 parts per billion (ppb) in tubers. As the expression levels of the VNT1 protein are below detection limits, it is impractical to demonstrate methods for detecting and measuring the levels of the pesticide residues. Contact: BPPD.

On January 21, 2016, FMCSA published an NPRM proposing revisions to the current methodology for issuance of a SFD for motor carriers as required by 49 U.S.C. 31144 (81 FR 3562).

The essential elements of the proposed rule included determining safety fitness from not only a comprehensive compliance investigation, but also considering roadside inspections data. Adding roadside inspections to the proposal included a minimum number of inspections and violations to be used for the SFD, as well as providing failure standards, and elimination of the current three-tier rating system (i.e., satisfactory—conditional—unsatisfactory). Also, the NPRM proposed revising the SFD appeals process and establishing implementation and transition provisions for a final rule.

The Agency received 153 initial comment period submissions and 17 reply comment period submissions in response to the NPRM. After considering the comments, FMCSA announced that, rather than move to a final rule, a SNPRM would be the next step in the rulemaking process.1

In the NPRM, FMCSA proposed to eliminate the current three ratings of satisfactory, conditional and unsatisfactory. Instead, the Agency proposed only one rating of “unfit.” Commenters including John Brannum, C.H. Robinson, Greyhound Lines, Advocates for Highway and Auto Safety (Advocates), Road Safe America, Truck Safety Coalition and the American Association for Justice supported the termination of the three-tier rating system. These commenters supported the fact that this change would not allow conditional carriers to operate without improving their operations and would make it much clearer for the shipping community to determine which carriers may or may not operate. Specifically, C. H. Robinson noted it has long recommended a two-tiered structure that more clearly signals to shippers, and other industry stakeholders, which carriers should not be hired due to safety concerns. It said all stakeholders seek clear direction from FMCSA, and FMCSA desires stakeholders to properly use data collected by FMCSA. David Gee, an owner of a motor carrier and a broker, commented that the Agency should use the rulemaking to affirm that the shipper and broker community can rely upon the agency's ultimate safety fitness determination in making carrier selections free from state law negligence suits. Greyhound stated it agrees that the change will do away with the misperception that a “satisfactory” rating is a sign of operational approval.

However, commenters including the National Motor Freight Traffic Association (NMFTA), Minnesota Trucking Association, School Bus, Inc., National School Transportation Association, and the American Trucking Associations, Inc. (ATA), opposed the proposed change. ATA wrote that the proposal to remove the term “safety rating” may have negative, perhaps unanticipated, consequences. Specifically, ATA explained that there will be no means to distinguish fleets whose safety management controls have been verified during compliance reviews (i.e. those labeled “Satisfactory”) from fleets that have not been reviewed. Second, there will be no means to separate fleets with documented deficiencies (i.e. those labeled “Conditional”) from all other fleets not labeled “Unfit.” In addition to the inequity this creates for fleets that have earned a “Satisfactory” rating, ATA believes it does a disservice to third parties and the general public who should be alerted to the fleets with documented problems. ATA also proposed that FMCSA should allow fleets that have been investigated to maintain their satisfactory ratings; this idea was echoed by NMFTA and the Intermodal Association of North America.

Further, ATA suggested that FMCSA consider three labels: Assessed—Unfit, Assessed—Not Unfit, and Not Assessed. ATA noted that a tiered naming convention such as this could help eliminate confusion and leave third parties better informed.

Some commenters also asserted that FMCSA, contrary to the position expressed in the NPRM, had a statutory duty to determine the fitness of all motor carriers, not just those that are unfit. These commenters claimed that the provisions of 49 U.S.C. 31144 require such actions.

Advocates expressed concern that, as proposed, one of the assessment methods would only reach the worst 1 percent or 4 percent of carriers, depending on the various categories. Advocates believe that the failure standards were “artificially selected” based on the Agency's resources “instead of making safety the highest priority.” Advocates recommended that the SFD process should identify each and every motor carrier that is unsafe and needs to be determined “Unfit.” Contrarily, to support the Agency's proposal, the International Brotherhood of Teamsters offered that the Agency should only be expected to determine the safety fitness of as many carriers as possible, given existing resources.

Advocates further commented that if the agency plans to use the absolute performance measure based on a snapshot of data to establish the thresholds, there must be a plan to continually update this data to encourage improvements in safety on par with increases in on-road safety, both within the industry and on-road in general.

Knight Transportation agreed with the Agency's proposal that carrier fitness should not be based on relative peer performance. NMFTA added that the assignment of absolute failure standards for the individual categories would provide a carrier with a better method to track and assess its safety compliance based on the roadside inspections, and sooner identify an area which might require additional attention. The International Brotherhood of Teamsters noted that, under the proposed methodology, carriers will benefit from being judged solely on their own performance rather than other companies' safety performance. Intermodal Association of North America also believes that moving to an absolute measurement approach is an improved method over the existing, relative measurements of the Compliance, Safety, and Accountability program.

The American Bus Association questioned how FMCSA can issue a regulatory proposal to change the long standing safety fitness determination process for motor carriers, without providing the failure standards in the NPRM.

C.H. Robinson commended the decision to move away from a percentile ranking and establish firm, fixed safety data targets as represented by the “absolute measure” thresholds that began to be published in August 2014. C.H. Robinson found, however, that FMCSA has not educated stakeholders well about how absolute measures are formulated and specifically why absolute measures vary greatly across peer groups. C.H. Robinson suggests FMCSA fully explain absolute measures to shippers, brokers and other stakeholders, to reduce the risk that small business carriers will be adversely impacted. C.H. Robinson believes the potential adverse impact to small carriers regarding this confusion is significant.

In addition, the Alliance for Safe, Efficient and Competitive Truck Transportation (ASCETT) noted that, with declining inspection rates, continued evidence of enforcement anomalies, electronic logging devices (ELDs) and speed limiters, a new NPRM and opportunity for notice and comment is needed. ASCETT further commented that the Agency will have to recalibrate the failure measures through rulemaking to justify new enforcement thresholds. However, ASCETT questioned if the recalibrations would be worth the expense.

Some commenters noted that applying the methodologies to more current data would change the population of carriers that would be identified as proposed unfit. Commenters noted that the number of inspections has decreased since 2011. Additionally, some commenters pointed out that by the end of 2017, ELDs will be mandatory. This change will alter the violations in the Hours of Service category. Also, these commenters stated that if speed limiters become mandated for heavy vehicles this would result in changes to violations.

Some commenters alleged that some costs associated with declaring additional carriers “unfit” were not considered in the economic analysis. According to these commenters, other costs to consider in addition to those currently in the economic analysis include: Impacts to non-driver staff; costs for improving performance to come into compliance (e.g., attorney, consultant, and employee training costs); costs for administrative appeals; damage to business reputation and creditworthiness; lost sales; opportunity costs of time away from the business; lost revenue to suppliers (such as fuel suppliers); lost capital utilization if vehicles are taken off the market unnecessarily; defaults on loans; repossession of equipment; and personal bankruptcy of owners.

Three commenters suggested that FMCSA should consider changes to the proposed rule for small entities, including retaining the “corrective action plan” provision in the current regulation. In addition, some commenters recommended that FMCSA allow for reduced reporting requirements and timetables for small carriers.

On February 15, 2017, a letter from 62 national and regional organizations of motor carriers urged Secretary of Transportation Elaine L. Chao to withdraw the NPRM; a copy of the letter has been added to the docket.

The organizations argued that the proposed rule utilizes SMS data and methodologies, which Congress directed the National Academies of Science to review in the Fixing America's Surface Transportation Act, Public Law 114-94 (FAST Act) (Dec. 4, 2015). The National Academies of Science final report is expected in June 2017. The organizations representing motor property and passenger carriers believe it is ill-advised to develop a new SFD system until the report is received and any necessary reforms are made through corrective actions to the foundational data and methodologies that support safety fitness determinations. While the petitioners support the goal of an easily understandable, rational SFD system, they believe the NPRM should be withdrawn at this time.

Based on the current record, including comments received in response to the NPRM and the February 2017 correspondence to Secretary Chao, FMCSA has decided to withdraw the January 2016 NPRM and, accordingly, cancels the plans to develop a SNPRM as announced by the Agency on January 12, 2017. If FMCSA determines changes to the safety fitness determination process are still necessary and advisable in the future, a new rulemaking would be initiated that will incorporate any appropriate recommendations from the National Academies of Science and the comments received through this rulemaking. The NPRM concerning motor carrier safety fitness determinations is withdrawn.

This proposed rule is accessible via the Internet at the Office of the Federal Register Web site at https://www.federalregister.gov. Background information and documents are available at the NMFS West Coast Region Web site at http://www.westcoast.fisheries.noaa.gov/fisheries/management/whiting/pacific_whiting.html and at the Pacific Fishery Management Council's Web site at http://www.pcouncil.org/.

The regulations at 50 CFR 660.50(d) address the implementation of the treaty rights that Pacific Coast treaty Indian tribes have to harvest groundfish in their usual and accustomed fishing areas in U.S. waters. Section 660.50(d) provides that an allocation or regulation specific to the tribes shall be initiated by a written request from a Pacific Coast treaty Indian tribe with treaty fishing rights in the area covered by the FMP at the beginning of the biennial harvest specifications and management measures process. The Secretary will develop tribal allocations and regulations in consultation with the affected tribe(s) and, insofar as possible, with tribal consensus. The procedures that NMFS employs in implementing tribal treaty rights under the FMP were designed to provide a framework process by which NMFS can accommodate tribal treaty rights by setting aside appropriate amounts of fish in conjunction with the Pacific Fishery Management Council process for determining harvest specifications and management measures.

Since the FMP has been in place, NMFS has been allocating a portion of the U.S. TAC (called Optimum Yield (OY) or Annual Catch Limit (ACL) prior to 2012) of Pacific whiting to the tribal fishery, following the process established in 50 CFR 660.50(d). The tribal allocation is subtracted from the U.S. Pacific whiting TAC before allocation to the non-tribal sectors.

There are four tribes that can participate in the tribal Pacific whiting fishery: The Hoh Tribe, the Makah Tribe, the Quileute Tribe and the Quinault Indian Nation (collectively, the “Treaty Tribes”). The Hoh Tribe has not expressed an interest in participating to date. The Quileute Tribe and Quinault Indian Nation have expressed interest in commencing participation in the Pacific whiting fishery. However, to date, only the Makah Tribe has prosecuted a tribal fishery for Pacific whiting, having harvested Pacific whiting since 1996 using midwater trawl gear. Tribal allocations have been based on discussions with the Tribes regarding their intent for those fishing years. Table 1 below provides a history of U.S. TACs and annual tribal allocation in metric tons (mt).

In 2009, NMFS, the states of Washington and Oregon, and the Treaty Tribes started a process to determine the long-term tribal allocation for Pacific whiting; however, no long-term allocation has been determined. In order to ensure Treaty Tribes continue to receive allocations, this rule proposes the 2017 tribal allocation of Pacific whiting. This interim allocation is not intended to set precedent for future allocations.

In exchanges between NMFS and the Treaty Tribes during January 2017, the Makah Tribe indicated their intent to participate in the tribal Pacific whiting fishery in 2017, and requested 17.5 percent of the U.S. TAC. The Quileute Tribe and the Quinault Indian Nation indicated that they are not planning to participate in 2017. NMFS proposes a tribal allocation that accommodates the Makah request, specifically 17.5 percent of the U.S. TAC. NMFS believes that the current scientific information regarding the distribution and abundance of the coastal Pacific whiting stock suggests that the 17.5 percent is within the range of the tribal treaty right to Pacific whiting.

The Joint Management Committee, which was established pursuant to the Agreement between the Government of the United States of America and the Government of Canada on Pacific Hake/Whiting (the Agreement), is anticipated to recommend the coastwide and corresponding U.S./Canada TACs no later than March 25, 2017. The U.S. TAC is 73.88 percent of the coastwide TAC. Until this TAC is set, NMFS cannot propose a specific amount for the tribal allocation. The Pacific whiting fishery typically begins in May, and the final rule establishing the Pacific whiting specifications for 2017 is anticipated to be published by early May. Therefore, in order to provide for public input on the tribal allocation, NMFS is issuing this proposed rule without the final 2017 TAC. However, to provide a basis for public input, NMFS is describing a range of potential tribal allocations in this proposed rule, applying the proposed approach for determining the tribal allocation to a range of potential TACs derived from past harvest levels.

In order to project a range of potential tribal allocations for 2017, NMFS is applying its proposed approach for determining the tribal allocation to the range of U.S. TACs over the last 10 years, 2007 through 2016 (plus or minus 25 percent to capture variability in stock abundance). The range of U.S. TACs in that time period was 135,939 mt (2009) to 367,553 mt (2016). Applying the 25 percent variability results in a range of potential TACs of 101,954 mt to 459,441 mt for 2017. Therefore, using the proposed allocation rate of 17.5 percent, the potential range of the tribal allocation for 2017 would between 17,842 and 80,402 mt.

This proposed rule would be implemented under authority of section 305(d) of the Magnuson-Stevens Act, which gives the Secretary responsibility to “carry out any fishery management plan or amendment approved or prepared by him, in accordance with the provisions of this Act.” With this proposed rule, NMFS, acting on behalf of the Secretary, would ensure that the FMP is implemented in a manner consistent with treaty rights of four Treaty Tribes to fish in their “usual and accustomed grounds and stations” in common with non-tribal citizens. See United States v. Washington, 384 F. Supp. 313 (W.D. 1974).

NMFS has preliminarily determined that the management measures for the 2017 Pacific whiting tribal fishery are consistent with the national standards of the 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.

The Office of Management and Budget has determined that this proposed rule is not significant for purposes of Executive Order 12866.

As required by section 603 of the Regulatory Flexibility Act (RFA), an Initial Regulatory Flexibility Analysis (IRFA) was prepared. The IRFA describes the economic impact this proposed rule, if adopted, would have on small entities. A summary of the analysis follows. A copy of this analysis is available from NMFS.

Under the RFA, the term “small entities” includes small businesses, small organizations, and small governmental jurisdictions. A small organization is any nonprofit enterprise that is independently owned and operated and is not dominant in its field. Small governmental jurisdictions such as governments of cities, counties, towns, townships, villages, school districts, or special districts are considered small jurisdictions if their populations are less than 50,000 (5 U.S.C. 601). The Small Business Administration has established size criteria for entities involved in the fishing industry (13 CFR 121.201). A wholesale business primarily engaged in servicing the fishing industry is a small business if it employs 100 or fewer persons on a full time, part time, temporary, or other basis, at all its affiliated operations worldwide. A business primarily engaged in seafood processing is a small business if it is independently owned and operated, not dominant in its field of operation, and employs 750 or fewer persons on a full time, part time, temporary, or other basis, at all its affiliated operations worldwide. For purposes of this rulemaking, NMFS is applying the seafood processor standard to catcher processors (C/Ps) because like mothership (MS) processor vessels, Pacific whiting C/Ps earn the majority of the revenue from processed seafood product. For RFA purposes only, NMFS has established a small business size standard for businesses, including their affiliates, whose primary industry is commercial fishing (50 CFR 200.2, December 29, 2015). A business primarily engaged in commercial fishing (NAICS code 11411) is classified by NMFS as a small business if it is independently owned and operated, is not dominant in its field of operation (including affiliates), and has combined annual receipts not in excess of $11 million for all its affiliated operations worldwide.

This proposed rule would affect how Pacific whiting is allocated to the following sectors/programs: Tribal, Shorebased Individual Fishing Quota (IFQ) Program Trawl Fishery, MS Coop Program—Whiting At-sea Trawl Fishery, and C/P Coop Program—Whiting At-sea Trawl Fishery. The amount of Pacific whiting allocated to these sectors is based on the U.S. TAC.

Currently, the Shorebased IFQ Program is composed of 172 Quota Share permits/accounts, 152 vessel accounts, and 44 first receivers, only a portion of which participate in the Pacific whiting fishery, listed below. These regulations also directly affect participants in the MS Coop Program, a general term to describe the limited access program that applies to eligible harvesters and processors in the MS sector of the Pacific whiting at-sea trawl fishery. The MS Coop program currently consists of six MS processor permits, and a catcher vessel fleet currently composed of a single coop, with 34 Mothership/Catcher Vessel (MS/CV) endorsed permits (with three permits each having two catch history assignments). These regulations also directly affect the C/P Coop Program, composed of 10 C/P endorsed permits owned by three companies that have formed a single coop. These co-ops are considered large entities from several perspectives; they have participants that are large entities, have in total more than 750 employees worldwide including affiliates. Although there are three non-tribal sectors, many companies participate in two sectors and some participate in all three sectors. As part of the permit application processes for the non-tribal fisheries, based on the NMFS and Small Business Administration size criteria described above, permit applicants were asked if they considered themselves a small business, and they are asked to provide detailed ownership information. After accounting for cross participation, multiple QS account holders, and affiliation through ownership, NMFS estimates that there are 103 non-tribal entities directly affected by these proposed regulations, 89 of which are considered small businesses. We also expect one tribal entity to fish in 2017. Tribes are not considered small entities for the purposes of RFA. Impacts to tribes are nevertheless considered in this analysis.

This rule will allocate fish between tribal and non-tribal harvesters (a mixture of small and large businesses). Tribal fisheries consist of a mixture of fishing activities that are similar to the activities that non-tribal fisheries undertake. Tribal harvests may be delivered to both shoreside plants and motherships for processing. These processing facilities also process fish harvested by non-tribal fisheries. The effect of the tribal allocation on non-tribal fisheries will depend on the level of tribal harvests relative to their allocation and the reapportionment process. If the tribes do not harvest their entire allocation, there are opportunities during the year to reapportion unharvested tribal amounts to the non-tribal fleets. For example, in 2016 NMFS reapportioned 34,000 mt of the original 64,322 mt tribal allocation. This reapportionment was based on conversations with the tribes and the best information available at the time, which indicated that this amount would not limit tribal harvest opportunities for the remainder of the year. In 2016, the tribal Pacific whiting catch was approximately 2,500 mt in a fishery that spanned late August to mid-October. This reapportioning process allows unharvested tribal allocations of Pacific whiting to be fished by the non-tribal fleets, benefitting both large and small entities. Following are the revised Pacific whiting allocations for 2016 after the reapportionment: The Tribal allocation was 30,322 mt; the C/P Coop allocation was 114,149 mt; the MS Coop allocation was 80,575 mt; and the Shorebased IFQ Program allocation was 141,007 mt.

For the years 2011 to 2016, the total Pacific whiting fishery (tribal and non-tribal) averaged harvests of approximately 292,000 mt annually. As the U.S. Pacific whiting TAC has been highly variable during this time, so have harvests and ex-vessel revenues. The prices for Pacific whiting are largely determined by the world market because most of the Pacific whiting harvested in the U.S. is exported.

In the last year for which detailed economic information is available, the MS fleet had $46.4 million in wholesale revenue, generated $42 million in income and supported 926 jobs on the west coast from Pacific whiting (2014 Economic Data Collection (EDC) Mothership Report). The C/P fleet, which had $99.2 million in wholesale revenue in 2014, generated $142 million in income and supported 1,895 jobs on the west coast from Pacific whiting (2014 Economic Data Collection (EDC) C/P Report). In 2014, eight shoreside Pacific whiting companies processed 61,000 mt of Pacific whiting, for a wholesale revenue of $71 million.

Impacts to Makah catcher vessels who elect to participate in the tribal fishery are measured with an estimate of ex-vessel revenue. In lieu of more complete information on tribal deliveries, total ex-vessel revenue is estimated with the 2016 average IFQ ex-vessel price of Pacific whiting, which was $165 per mt. At that price, the proposed 2017 Tribal allocation (potentially 17,842-80,402 mt) would have an ex-vessel value between $2.9 million and $13.2 million.

NMFS considered two alternatives for this action: The “No-Action” alternative and the “Proposed Action” alternative. NMFS did not consider a broader range of alternatives to the proposed allocation. The tribal allocation is based primarily on the requests of the tribes. These requests reflect the level of participation in the fishery that will allow them to exercise their treaty right to fish for Pacific whiting. Under the Proposed Action alternative, NMFS proposes to set the tribal allocation percentage at 17.5 percent, as requested by the tribes. This would yield a tribal allocation of between 17,842 and 80,402 mt for 2017. Consideration of a percentage lower than the tribal request of 17.5 percent is not appropriate in this instance. As a matter of policy, NMFS has historically supported the harvest levels requested by the tribes. Based on the information available to NMFS, the tribal request is within their tribal treaty rights. A higher percentage would arguably also be within the scope of the treaty right. However, a higher percentage would unnecessarily limit the non-tribal fishery.

Under the No-Action alternative, NMFS would not make an allocation to the tribal sector. This alternative was considered, but the regulatory framework provides for a tribal allocation on an annual basis only. Therefore, the no-action alternative would result in no allocation of Pacific whiting to the tribal sector in 2017, which would be inconsistent with NMFS' responsibility to manage the fishery consistent with the tribes' treaty rights. Given that there is a tribal request for allocation in 2017, this alternative received no further consideration.

NMFS believes this proposed rule would not adversely affect small entities. The reapportioning process allows unharvested tribal allocations of Pacific whiting to be fished by the non-tribal fleets, benefitting both large and small entities. NMFS has prepared an IRFA and is requesting comments on this conclusion (see ADDRESSES).

There are no reporting, recordkeeping or other compliance requirements in the proposed rule.

No Federal rules have been identified that duplicate, overlap, or conflict with this action.

Pursuant to Executive Order 13175, this proposed rule was developed after meaningful consultation and collaboration with tribal officials from the area covered by the FMP. Consistent with the Magnuson-Stevens Act at 16 U.S.C. 1852(b)(5), one of the voting members of the Pacific Council is a representative of an Indian tribe with federally recognized fishing rights from the area of the Council's jurisdiction. In addition, NMFS has coordinated specifically with the tribes interested in the Pacific whiting fishery regarding the issues addressed by this rule.

For the reasons set out in the preamble, 50 CFR part 660 is proposed to be amended as follows:

NMFS manages the groundfish fisheries in the exclusive economic zone under the FMPs. The North Pacific Fishery Management Council (Council) prepared the FMPs under the authority of the Magnuson-Stevens Act, 16 U.S.C. 1801 et seq. Regulations governing U.S. fisheries and implementing the FMPs appear at 50 CFR parts 600 and 679.

Management of the Pacific halibut fisheries in and off Alaska is governed by an international agreement, the Convention Between the United States of America and Canada for the Preservation of the Halibut Fishery of the Northern Pacific Ocean and Bering Sea (Convention), which was signed in Ottawa, Canada, on March 2, 1953, and was amended by the Protocol Amending the Convention, signed in Washington, DC, on March 29, 1979. The Convention is implemented in the United States by the Northern Pacific Halibut Act of 1982.

This proposed rule would implement Amendments 114/104 to the FMPs. The Council has submitted Amendments 114/104 for review by the Secretary of Commerce, and a Notice of Availability (NOA) of these amendments was published in the Federal Register on March 10, 2017, with comments invited through May 9, 2017 (82 FR 13302).

This proposed rule and Amendments 114/104 to the FMPs amend the Council's fisheries research plan prepared under the authority of section 313 of the Magnuson-Stevens Act. NMFS published regulations implementing the plan on November 21, 2012 (77 FR 70062). The Secretary implemented the fisheries research plan through the North Pacific Observer Program. Its purpose is to collect data necessary for the conservation, management, and scientific understanding of the groundfish and halibut fisheries off Alaska. Magnuson-Stevens Act section 313 requires NMFS to provide a 60-day public comment period on the proposed rule and conduct a public hearing in each state represented on the Council for the purpose of receiving public comment on the proposed regulations. The states represented on the Council are Alaska, Oregon, and Washington. NMFS will conduct a public hearing in each of these states (see DATES).

People wanting to make an oral statement for the record at the public hearing are encouraged to provide a written copy of their statement and present it to NMFS at the hearing. If attendance at the public hearing is large, the time allotted for individual oral statements may be limited. Oral and written statements receive equal consideration. There are no limits on the length of written comments submitted to NMFS.

Respondents do not need to submit the same comments on the NOA, this proposed rule, and at a public hearing. All relevant written and oral comments received by the end of the applicable comment period, whether specifically directed to the FMP amendments, this proposed rule, or both, will be considered by NMFS in the approval/disapproval decision for Amendments 114/104 and addressed in the response to comments in the final decision.

The North Pacific Observer Program (Observer Program) is an integral component in the management of North Pacific fisheries. The Observer Program was created with the implementation of the Magnuson-Stevens Act in the mid-1970s and has evolved from primarily observing foreign fleets to observing domestic fleets. The Observer Program provides the regulatory framework for NMFS-certified observers (observers) to be deployed on board vessels to obtain information necessary for the conservation and management of the groundfish and halibut fisheries. The information collected by observers contributes to the best available scientific information used to manage the fisheries in furtherance of the purposes and national standards of the Magnuson-Stevens Act. Observers collect biological samples and information on total catch, including bycatch, and interactions with protected species. Managers use data collected by observers to manage groundfish catch and bycatch limits established in regulation and to document fishery interactions with protected resources. Managers also use data collected by observers to inform the development of management measures that minimize bycatch and reduce fishery interactions with protected resources. Scientists use observer-collected data for stock assessments and marine ecosystem research.

In 2013, the Council and NMFS restructured the Observer Program to address longstanding concerns about statistical bias of observer-collected data and cost inequality among fishery participants with the funding and deployment structure under the previous Observer Program (77 FR 70062, November 21, 2012). The restructured Observer Program established two observer coverage categories: Partial and full. All groundfish and halibut vessels and processors are included in one of these two categories. NMFS requires fishing sectors in the full coverage category to have all operations observed. The full coverage category includes most catcher/processors, all motherships, and those catcher vessels participating in a catch share program with a transferrable prohibited species catch (PSC) limit. Owners of vessels or processors in the full coverage category must arrange and pay for required observer coverage from a permitted observer provider. This proposed rule would not change the full coverage category.

The partial coverage category includes fishing sectors (vessels and processors) that are not required to have an observer at all times. The partial coverage category includes catcher vessels, shoreside processors, and stationary floating processors when they are not participating in a catch share program with a transferrable PSC limit. Small catcher/processors that meet certain criteria are also in the partial coverage category.

NMFS contracts with an observer provider and determines when and where observers are deployed, based on a scientific sampling design, in the partial coverage category. Each year, NMFS develops an annual deployment plan (ADP) that describes how NMFS plans to deploy observers to vessels and processors in the partial coverage category in the upcoming year.

The ADP describes the scientific sampling design NMFS uses to generate unbiased estimates of total and retained catch, and catch composition in the groundfish and halibut fisheries. The ADP provides flexibility to improve deployment to meet scientifically based estimation needs while accommodating the realities of a dynamic fiscal environment. NMFS's goal is to achieve a representative sample of fishing events, and to do this without exceeding funds collected through the observer fee. This is accomplished by the random deployment of observers in the partial coverage category. NMFS adjusts the ADP each year after a scientific evaluation of data collected under the Observer Program to evaluate the impact of changes in observer deployment and to identify areas where improvements are needed to collect the data necessary to conserve and manage the groundfish and halibut fisheries.

To summarize the ADP process, each year in October, NMFS develops a draft ADP that describes how NMFS plans to deploy observers to vessels in the partial coverage category in the upcoming year. The draft ADP describes the deployment methods NMFS plans to use to collect observer data on discarded and retained catch, including the information used to estimate catch composition and marine mammal and seabird interactions in the groundfish and halibut fisheries. The draft ADP also describes how NMFS will deploy observers to shoreside processing plants or stationary floating processors in the partial coverage category. The Council reviews the draft ADP and considers public comment when developing its recommendations about the draft ADP. The Council may recommend adjustments to observer deployment to prioritize data collection based on conservation and management needs. After NMFS conducts a scientific evaluation of the Council's recommendations, NMFS adjusts the draft ADP as appropriate and finalizes the ADP in December for release prior to the start of the fishing year. NMFS posts the ADP on the NMFS Alaska Region Web site (http://alaskafisheries.noaa.gov).

Each year, NMFS also develops an Annual Report that evaluates how well various aspects of the program are achieving program goals, identifies areas where improvements are needed, and includes preliminary recommendations regarding the upcoming ADP. The Council and its Scientific and Statistical Committee (SSC) review the Annual Report in June. This timing allows NMFS and the Council to consider the results of past performance in developing the ADP for the following year. NMFS posts the Annual Report on the NMFS Alaska Region Web site (http://alaskafisheries.noaa.gov).

The Observer Declare and Deploy System (ODDS) is an Internet-based interface that provides information about observer deployment on vessels in the partial coverage category and facilitates communication among the owner or operator of a vessel in the partial coverage category, NMFS, and NMFS' contracted observer provider. Owners and operators of vessels in the partial coverage category enter information about upcoming fishing trips into ODDS and receive information about whether a trip has been selected for observer coverage.

The restructured Observer Program created a new system of fees to pay for the cost of implementing observer coverage in the partial coverage category. Vessels and processors included in the partial coverage category pay a fee of 1.25 percent of the ex-vessel value of fishery landings to NMFS to fund the deployment of observers in the partial coverage category. Under section 313 of the Magnuson-Stevens Act, the fees shall not exceed 2 percent of the fishery ex-vessel value.

The restructured Observer Program expanded the vessels subject to observer coverage to include groundfish vessels less than 60 ft LOA and halibut vessels that had not been previously required to carry an observer. Expanding observer coverage to the approximately 950 previously unobserved vessels improved NMFS' ability to estimate total catch in all Federal fisheries in the North Pacific.

Even before implementing the restructured Observer Program, many vessel owners and operators new to the Observer Program were opposed to carrying an observer (77 FR 70062, November 21, 2012). Vessel owners and operators explained that there is limited space on board for an additional person or limited space in the vessel's life raft.

Some vessel owners, operators, and industry representatives advocated for the use of EM instead of having an observer on board their vessels (77 FR 70062, November 21, 2012). To address their concerns, the Council and NMFS have been actively engaged in developing EM as a tool to collect fishery data in the nontrawl fisheries. Over the past several years, NMFS and industry participants have undertaken cooperative research to test the applicability and reliability of EM systems. An EM system uses cameras, video storage devices, and associated sensors to record and monitor fishing activities.

In 2013, NMFS developed, and the Council adopted, the Strategic Plan for Electronic Monitoring and Electronic Reporting in the North Pacific to guide integration of monitoring technologies into North Pacific fisheries management and provide goals and benchmarks to evaluate attainment of goals (available on the Alaska Fisheries Science Center Web site at http://www.afsc.noaa.gov/Publications/AFSC-TM/NOAA-TM-AFSC-276.pdf).

In 2014, the Council appointed the EM Workgroup to develop an EM program to integrate into the Observer Program. The EM Workgroup provides a forum for stakeholders, including the commercial fishery participants, NMFS, Alaska Department of Fish and Game, and EM service providers, to cooperatively and collaboratively design, test, and develop EM systems, and to identify key decision points related to operationalizing and integrating EM systems into the Observer Program in a strategic manner. The EM Workgroup developed a cooperative research program to inform evaluation of multiple EM program design options and consider various EM integration approaches to achieve management needs.

The cooperative research includes analytical and fieldwork components to address the following four elements: Deployment of EM systems for operational testing, research and development of EM technologies, development of infrastructure to support EM implementation, and analyses to support EM implementation. This approach enabled the EM Workgroup to identify and resolve implementation issues associated with integrating EM into the Observer Program. Data and analysis produced on costs, data quality, risks, operational procedures, and vessel compatibility informed decisions on implementation phases, future investments in technology, and the tools that will best meet NMFS, Council, and stakeholder management objectives. The cooperative research program was implemented through research projects and pre-implementation plans in 2015, 2016, and 2017. The cooperative research to date has shown that data from EM systems can effectively identify almost all of the species or species groupings required for management, that the systems are sufficiently reliable, and that image quality is generally high. Additional information on the work of the EM Workgroup is provided in the Analysis (see ADDRESSES).

Based on input received from the EM Workgroup, and through the Council process, the Council and NMFS developed this proposed action to provide an option for participants in the partial coverage category using nontrawl gear to choose to be in the EM selection pool instead of an observer selection pool. EM selection pool means the defined group of vessels from which NMFS will randomly select the vessels required to use an EM system.

In recommending this action, the Council used the term “fixed gear” to describe vessels using pot or longline gear. The Council's use of this term is broader than the definition of fixed gear in Federal regulations at § 679.2, which defines fixed gear as including only hook-and-line gear and pot gear in the halibut or sablefish fishery. The Council intended for EM to be an option available to vessels using any type of gear other than trawl gear, and not to limit the potential use of EM to only those vessels using hook-and-line gear or pot gear in the halibut or sablefish fishery. To meet the intent of the Council, this proposed rule uses “nontrawl gear” except when quoting the Council in this preamble, or when specifically referring to fixed gear used in the halibut and sablefish fisheries. Federal regulations at § 679.2 define nontrawl gear as pot and longline gear. Longline gear is defined at § 679.2 as including hook-and-line, jig, troll, and handline or the taking of fish by means of such a device. The Council focused the cooperative research on hook-and-line gear and pot gear. Additional cooperative research would be necessary to expand EM to other gear types, as explained in section 3.5 of the Analysis (see ADDRESSES).

In December 2016, the Council adopted Amendments 114/104. The Council and NMFS developed EM for data collection for the nontrawl gear fisheries to address their desire for an alternative way to collect fisheries data in consideration of the operating requirements in these fisheries. EM systems can collect at-sea data for NMFS to estimate discards of fish, including halibut, and mortality of seabirds. EM has the potential to reduce economic and operational costs associated with deploying human observers throughout coastal Alaska. EM has the potential to reduce monitoring costs relative to observer coverage because it does not require deploying a person on the vessel and eliminates the logistical and travel expenses that this deployment generates. Through the use of EM, it may be possible to cost effectively obtain at-sea data from a broader cross-section of the nontrawl gear fleet and increase NMFS' and the Council's flexibility to respond to the scientific and management needs of these fisheries. The Council's statement of purpose and need follows:

This proposed rule would establish the process and structure for use of an EM system to monitor catch and bycatch on those vessels using nontrawl gear in the partial coverage category of the Observer Program that choose to be in the EM selection pool. An EM system uses cameras, video storage devices, and associated sensors to record and monitor fishing activities. To implement EM, NMFS would set up a contract or grant with one or multiple EM service providers to install and service EM equipment, and to collect and review EM data. The contract or grant would specify hardware and field service specifications, EM data review requirements, and data and archiving requirements. “EM service provider” means any person, including their employees or agents, that NMFS contracts with to provide EM services, or to review, interpret, or analyze EM data.

EM data would supplement observer data from other nontrawl gear vessels. Some data necessary for catch estimation, fishery management, and stock assessment cannot be collected from EM systems. NMFS would obtain this data from observers on board other nontrawl gear vessels that are fishing in similar areas and at similar time periods. The Council and NMFS would make EM system and observer deployment decisions following the sampling design in the ADP, and subsequently analyze the deployment data in the Annual Report.

NMFS and the Council would define the criteria in the ADP for vessels to be eligible to participate in EM. The criteria for being in the EM selection pool may include, but are not limited to, gear type, vessel length, area fished, number of trips or total catch, sector, target fishery, and home or landing port.

Participation in the EM selection pool would be voluntary. Any owner or operator of a vessel that meets the EM selection pool criteria could annually request to be in the EM selection pool using the process established in this proposed rule if they are willing to comply with the provisions established under this proposed rule. While there are additional responsibilities for the owner or operator of a vessel in the EM selection pool to install and maintain the EM system, NMFS' intent is largely to allow the vessel to continue its normal fishing practice and allow the cameras to capture data observations that an EM service provider then extracts onshore through video review.

NMFS intends to use discretionary appropriated funds from its budget for EM system deployment until observer fees are available to fund EM system deployment and NMFS issues a contract with one or more EM service providers. Once observer fee proceeds are available and the contract is issued, NMFS would use the observer fee proceeds collected from partial coverage category participants to pay for both EM system deployment and observer deployment in the partial coverage category. Section 313 of the Magnuson-Stevens Act authorizes the Council to use the fees collected under that section to pay for the cost of implementing the fisheries research plan, including stationing EM systems on vessels and for inputting collected data. The annual decision to apportion fees between observer deployment and EM system deployment would be made by the Council and NMFS during the ADP process.

Through the ADP process, the Council and NMFS will consider how to optimize observer and EM system deployment for fisheries in the partial coverage category each year, based on an analysis of the costs, budget, monitoring goals, and fishing effort in the partial coverage category. The ADP process is explained above under North Pacific Observer Program. Work is ongoing to develop the necessary annual analysis for determining the criteria for the EM selection pool and balancing EM system deployment with deployment of observers within budget limits.

The amount of fee revenues collected would determine the level of costs that NMFS could incur to deploy EM systems and to deploy observers. The Analysis provides a detailed discussion of the potential costs of EM system deployment (see ADDRESSES). Since the fee is based on the ex-vessel value of harvested fish, which fluctuates annually, the amount of funding available for deploying observers and EM systems will also fluctuate. NMFS would need to adjust observer coverage and EM coverage levels to align anticipated annual costs with available fee revenue. NMFS and the Council may also modify the criteria for participating in the EM selection pool to control costs. In consultation with the Council, NMFS would allocate funds between EM and observers to achieve the most precision for the least cost. The specific deployment decisions, including the eligibility criteria for vessels to participate in EM, could vary from year to year based on the analysis conducted through the ADP process. Through using this existing scientific process for EM system deployment, NMFS would gather reliable data necessary for the conservation, management, and scientific understanding of the fisheries covered by the fisheries research plan.

Because it is likely that NMFS would establish a contract for multiple years and some of the deployment decisions have a significant impact on EM service provider costs (for example, the number and location of primary service ports), NMFS and the Council may make some deployment decisions for the duration of the contract, rather than annually in the ADP. Similarly, NMFS anticipates that the EM system will change over time as technological improvements are made. These technological changes could be accommodated in the contract or grant.

An important part of the ADP analysis will be identifying and understanding gaps in observer data when a portion of the partial coverage vessels participates in the EM selection pool. Appendix 1 of the Analysis (see ADDRESSES) provides an example of the type of analysis that would be conducted annually to ensure that sufficient observers are deployed to maintain representative data (such as biological samples and average weights) that cannot be collected with an EM system.

This proposed rule would implement the requirements described below to allow owners or operators of vessels using nontrawl gear to choose to use an EM system in place of an observer.

This proposed rule would establish the process by which vessel owners or operators could join the EM selection pool (see proposed § 679.51(f)(1)). Owners or operators of vessels that use nontrawl gear and are in the partial coverage category could request to be in the EM selection pool. Each year, vessel owners would have the opportunity to join or leave the EM selection pool through an application available through ODDS. Vessel owners that want to be in the EM selection pool would need to request in ODDS to participate in EM by November 1 to use EM in the following calendar year. NMFS would notify the vessel owner through ODDS whether that vessel has been approved or denied for the EM selection pool. NMFS would deny vessels if those vessels did not meet the EM selection pool criteria specified in the regulations and described in the ADP. Vessel owners would have the opportunity to appeal NMFS' decision denying the request to be in the EM selection pool (see proposed § 679.51(f)(1)(vii)).

The November 1 deadline would balance the interest of potential EM participants to have an opportunity to review the draft ADP available in October and its description of the EM selection pool before joining the EM selection pool with NMFS' interest in determining the number and types of vessels assigned to the EM selection pool before finalizing the ADP in December.

NMFS would approve a request for placement in the EM selection pool based on criteria specified in the regulations and described in the ADP. Criteria may include, but are not limited to, availability of EM systems, vessel gear type, vessel length, area fished, number of trips or total catch, sector, target fishery, and home or landing port. NMFS, in consultation with the Council, will establish the EM selection pool criteria based on the scientific sampling design, budget and cost considerations, and data collection goals.

Once NMFS has approved a vessel for participation in the EM selection pool, that vessel would be in the EM selection pool for the entire calendar year following the November 1 application deadline. The vessel would remain in the EM selection pool each subsequent year until the vessel owner or operator requests to leave or NMFS removes the vessel from the EM selection pool because it no longer meets the EM selection pool criteria or NMFS disapproves the vessel monitoring plan (VMP). A VMP is the document that describes how fishing operations on the vessel will be conducted and how the EM system and associated equipment will be configured to meet the data collection objectives and purpose.

Vessels would either be in the EM selection pool or in an observer selection pool. Vessels would not be subject to both EM coverage and observer coverage.

The vessel owner or operator would use ODDS to submit a request to leave the EM selection pool by November 1 for the following calendar year (see proposed § 679.51(f)(1)(ix)).

NMFS may also remove a vessel from the EM selection pool for the following calendar year. NMFS would remove a vessel if NMFS disapproves the vessel's VMP or if the vessel no longer meets the EM selection pool criteria. Vessels would not be able to leave the EM selection pool during a calendar year in order to maintain the sampling design used for that year.

Once a vessel is approved for the EM selection pool, the vessel owner or operator would make the vessel available to the NMFS-contracted EM service provider for installation of all required EM system components. During the installation, it would be the vessel owner's responsibility to assist the EM service provider with planning the best wiring routes and installing sensors that interface with the vessel's equipment, such as hydraulic oil pressure and engine oil pressure. The specifications for the EM components that would be installed would be defined in the contract between NMFS and the EM service provider. The EM service provider would install cameras in locations that meet the catch accounting objectives annually specified in the ADP.

If a vessel already has an EM system, it could use that EM system or it could modify that EM system as necessary to meet the specifications in the VMP. That vessel owner or operator would need to work with the EM service provider to develop and submit a VMP to NMFS Alaska Region. For example, a vessel may have an existing EM system on board because that vessel participates in another federally managed fishery that has an EM program.

Once approved for the EM selection pool and prior to registering a fishing trip in ODDS, the vessel owner or operator must develop a VMP with the EM service provider and submit it to NMFS for approval (see proposed § 679.51(f)(4)). A vessel in the EM selection pool would be required to have a copy of a valid NMFS-approved VMP on board before that vessel goes fishing. If NMFS does not approve the VMP, NMFS will issue an IAD to the vessel owner or operator that will explain the basis for the disapproval. The vessel owner or operator may file an administrative appeal under the administrative appeals procedures set out at 15 CFR part 906.

The vessel owner or operator would work with the EM service provider to develop a VMP. The VMP would describe how fishing operations on the vessel are conducted, including how gear is set, how catch is brought on board, and where catch is retained and discarded. The VMP would also describe how the EM system and associated equipment would be configured to meet the data collection objectives and purpose of the EM program, including camera locations to cover all fishing activities, any sensors to detect fishing activities, and any special catch handling requirements to ensure the data collection objectives can be met. The VMP would also include methods to troubleshoot the EM system and instructions for ensuring the EM system is functioning properly. These required components of the VMP would be detailed in the VMP template and in the contract between NMFS and the EM service provider.

NMFS would provide a VMP template for guidance to the EM service provider and the vessel owner or operator on the elements NMFS would require in the final approved VMP. NMFS would make this VMP template available on the NMFS Alaska Region Web site at https://alaskafisheries.noaa.gov/. This VMP template would be available annually prior to the November 1 deadline to participate in the EM selection pool to allow vessel owners and operators an opportunity to review the requirements for the upcoming year. For informational purposes, the 2017 pre-implementation VMP is available on the North Pacific Fishery Management Council Web site at https://npfmc.org/.

Once the VMP is complete and the vessel owner or operator agrees to comply with the components of the VMP, the vessel owner or operator must sign and submit the VMP to NMFS via email or other electronic means. NMFS would review the VMP for completeness and may request additional clarification. If the VMP meets the requirements established in the VMP template, NMFS would approve the VMP for the calendar year. The vessel owner or operator would be required to keep a copy of the VMP aboard the vessel and make it available to NOAA Office of Law Enforcement (NOAA OLE) or other NMFS-authorized officer or personnel upon request.

After reviewing the data from a fishing trip selected for EM coverage, NMFS may determine that the approved camera location(s) in the VMP or fishing activities conducted by the vessel crew outlined in the VMP do not allow for the data collection necessary for catch accounting. Additionally, the vessel operator may want to have a camera moved if it impedes his or her ability to fish, or the operator may reconfigure the vessel to change fishing activities during the season that would warrant changes to the VMP. Whether requested by the vessel owner or operator or by NMFS, the vessel owner or operator would be required to make any changes to the VMP with the assistance of the EM service provider. The NMFS contract with the EM service provider would describe the permissible changes. These permissible changes would likely be limited to actions that enhanced data collection or maintained the same quality of data in cases where camera locations impede the ability to fish or vessel reconfigurations occur. These amendments to the VMP would be signed and submitted to NMFS. The vessel would be allowed to begin another fishing trip, provided that NMFS has received the VMP amendments in writing. If the amended VMP did not meet the data collection needs, NMFS would inform the EM service provider and the vessel owner or operator that the VMP would need to be updated before another trip selected for EM coverage could begin.

Once in the EM selection pool and after the vessel has an approved VMP, the vessel operator would register fishing trips in ODDS (see proposed § 679.51(f)(2)). ODDS would notify the vessel operator when the vessel is selected to use the EM system and instructions would be provided in ODDS. The ADP would specify the EM selection rate—the portion of trips that are sampled—for each calendar year. NMFS and the Council may change the EM selection rate from one calendar year to the next to achieve efficiency, cost savings, and data collection goals. EM selection rates would not change during a calendar year.

Vessel owners or operators would be required to maintain the EM system in 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 § 679.51(f)(5)). The vessel owner or operator would also need to ensure that power is maintained to the EM system at all times when the vessel is underway or the engine is operating. The vessel operator would also be required to conduct a system function test before each trip to ensure the EM system is working properly before departing.

Before each set is retrieved the vessel operator would need to verify that all components of the EM system are functioning. Instructions for completing this verification would be provided in the vessel's VMP.

Vessel owners or operators would be prohibited from tampering with the EM system or harassing the EM service provider. Additional prohibitions exist to ensure the EM system functions and the data from the systems is usable for fisheries management (see proposed § 679.7(j)).

The VMP would list EM system malfunctions that are considered high priority to the data collection objectives and those malfunctions that are considered low priority to the data collection objectives. The VMP would also provide guidance about the procedures to follow if either of these types of malfunctions were detected. The proposed regulations describe the responsibilities of the vessel owner or operator in case an EM system malfunctions (see proposed § 679.51(f)(5)(vi)).

If a high priority malfunction were detected during the pre-departure function test, the vessel would be required to remain in port for up to 72 hours to allow an EM service provider time to conduct repairs. Remaining in port for up to 72 hours would allow time for an EM service provider to travel to most remote ports in Alaska and give him or her the necessary time needed to conduct repairs. If the repairs could not be completed within this time frame, NMFS would release the vessel from EM coverage for that trip and the vessel operator would be allowed to depart. However, the vessel owner or operator would be required to repair the malfunction prior to departing on a subsequent fishing trip, and the vessel would automatically be selected for EM coverage for that fishing trip.

If a low priority malfunction were detected during the pre-departure function test, the vessel operator would be allowed to depart on the selected trip as long as the procedures for low priority malfunctions described in the vessel's VMP were followed. At the end of the trip the vessel operator would be required to work with the EM service provider to repair the malfunction. The vessel operator could not depart on another trip selected for EM coverage with this malfunction unless the vessel operator had contacted the EM service provider.

If an EM system malfunction were to occur during a fishing trip selected for EM coverage, prior to retrieving the set the vessel operator would be required to attempt to correct the problem using the provisions described in the vessel's VMP. If the malfunction could not be repaired at sea, the vessel operator would be required to contact the EM service provider at the end of the trip. The malfunction would need to be repaired before the vessel could depart on another fishing trip selected for EM coverage (see proposed § 679.51(f)(5)). This requirement mirrors the pre-departure function test requirements.

At the end of the fishing trip selected for EM coverage, the vessel owner or operator would close the trip in ODDS and follow the instructions in ODDS. The vessel owner or operator would be required to submit the video data storage devices to NMFS within 2 business days of completing the fishing trip selected for EM coverage, using a method that requires a signature for delivery and provides notification of delivery. Additional documentation described in the vessel's VMP would need to be submitted along with the video data storage devices. Specific instructions for shipping video data storage devices would be included in the vessel's VMP (see proposed § 679.51(f)(5)(vii)). The video storage devices would need to be submitted within 2 business days so that timely review of the data could occur and be provided for the management of the fishery.

Currently, under § 679.7(f)(4), unless a vessel has an observer aboard and maintains the applicable daily logbook, the vessel cannot retain halibut or sablefish in excess of the total amount of unharvested IFQ or CDQ applicable to that vessel for the IFQ regulatory area in which the vessel is operating and that is currently held by all IFQ or CDQ permit holders aboard the vessel. This proposed rule would expand the exception to a vessel in the EM selection pool. This proposed rule provides that the owner or operator of a vessel in the EM selection pool, that complies with the requirements of § 679.51(f)(6) and maintains the applicable daily logbook, could retain halibut or sablefish in excess of the total amount of unharvested IFQ or CDQ applicable to that vessel for the IFQ regulatory area in which the vessel is operating and that is currently held by all IFQ or CDQ permit holders aboard the vessel. If a vessel is not part of the EM selection pool and is not selected for observer coverage for that fishing trip, the vessel owner or operator would continue to be prohibited from retaining halibut or sablefish in excess of the total amount of unharvested IFQ or CDQ applicable to that vessel for the IFQ regulatory area in which the vessel is operating.

Under proposed § 679.51(f)(6), a vessel owner or operator in the EM selection pool would use ODDS to identify when he or she intends to fish in multiple areas and to commit to using a functioning EM system on the whole trip, even if the vessel was not selected for EM coverage. The vessel owner or operator would be required to meet all the same responsibilities as if the vessel's fishing trip had been selected for EM coverage in ODDS. These include having a copy of a valid NMFS-approved VMP on board before the vessel goes fishing, maintaining the EM system in working order, and submitting the required information at the end of the trip. All these requirements are described in more detail above.

Because the EM system in this instance would be used as a compliance monitoring tool, some additional regulatory requirements would apply to the vessel owner and operator. The EM system would be required to be powered continuously during the entire fishing trip. The vessel owner or operator would need to describe in the VMP the alternative methods the vessel would use to show that the vessel had not moved or fished if the vessel owner or operator intends to power down the EM system during periods of non-fishing, such as at night when the vessel crew is sleeping. These alternative methods could include using VMS or installing a sensor that records when the engine is powered down.

Additionally, if during a fishing trip an EM system malfunction occurred that did not allow recording of essential information about where the vessel was fishing and what amount of halibut or sablefish catch was coming aboard, the vessel operator would be required to cease fishing immediately and to contact NOAA OLE. This requirement is necessary because information about the location of fishing and the amount caught in each area is paramount to allowing vessels to fish in multiple areas using the EM system exception at § 679.7(f)(4).

NMFS proposes to revise regulations for clarity and efficiency, as follows—

• Remove expired regulations at §§ 679.7(j) and 679.23(d)(5), and remove § 679.23(d)(4), which was previously removed and reserved. Section 679.7(j) was only applicable through December 31, 2002 (67 FR 64315; October 18, 2002). Section 679.23(d)(5) was only applicable through July 17, 2001 (66 FR 31845; June 13, 2001). This proposed rule would revise § 679.7(j) to list prohibitions to ensure the EM system functions and the data from the systems are usable for fisheries management.

• Correct regulation citations in § 679.21(a)(2)(ii) and (a)(3) that cross reference paragraphs that NMFS moved in previous rulemaking.

• Remove the word “observer” from the phrase “partial observer coverage category” in § 679.51(a)(1) because, with this proposed rule, the partial coverage category would include EM and observers.

• Revise § 679.51(a)(1)(ii)(B) to remove reference to vessel and trip selection pools because, with this proposed rule, NMFS is adding the EM selection pool.

• Remove § 679.51(a)(1)(iii)(D)(2) because this proposed rule would replace that EM provision.

• Remove the expired deadline for the Bering Sea and Aleutian Islands (BSAI) trawl catcher vessel placement in the full observer coverage category at § 679.51(a)(4)(iii).

Pursuant to sections 304(b) and 305(d) of the Magnuson-Stevens Act, the NMFS Assistant Administrator has determined that this proposed rule is consistent with the FMPs, other provisions of the Magnuson-Stevens Act, and other applicable law, subject to further consideration of comments received during the public comment period.

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

An RIR was prepared to assess all costs and benefits of available regulatory alternatives. A copy of this analysis is available from NMFS (see ADDRESSES). The Council recommended Amendments 114/104 based on those measures that maximized net benefits to the Nation. Specific aspects of the economic analysis are discussed below in the Initial Regulatory Flexibility Analysis section.

This IRFA was prepared for this proposed rule, as required by section 603 of the Regulatory Flexibility Act (RFA), to describe why this action is being proposed; the objectives and legal basis for the proposed rule; the number of small entities to which the proposed rule would apply; any projected reporting, recordkeeping, or other compliance requirements of the proposed rule; any overlapping, duplicative, or conflicting Federal rules; and any significant alternatives to the proposed rule that would accomplish the stated objectives, consistent with applicable statutes, and that would minimize any significant adverse economic impacts of the proposed rule on small entities. Descriptions of the proposed action, its purpose, and the legal basis are contained earlier in this preamble and are not repeated here.

The entities directly regulated by this action are those entities that harvest groundfish and halibut using nontrawl gear and are subject to observer coverage in the partial coverage category of the Observer Program. These directly regulated entities include vessels that fished with nontrawl gear in State waters only if those vessels had an Federal Fisheries Permit (FFP), which makes them subject to Federal observer regulations. Since participation in the EM selection pool is voluntary, only those vessels that choose to participate in the EM selection pool would be directly regulated by this proposed rule.

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.

The estimated number of vessels that use nontrawl gear in the partial coverage category that are small entities might be overstated. Conversely, the number of non-small entities might be understated. The RFA requires a consideration of affiliations between entities for the purpose of assessing whether an entity is classified as small. The estimates below do not take into account all affiliations between entities. There is not a strict one-to-one correlation between vessels and entities; many persons and firms are known to have ownership interests in more than one vessel, and many of these vessels with different ownership are otherwise affiliated with each other. Vessels that have types of affiliation that are not tracked in available data (i.e., ownership of multiple vessels or affiliation with processors) may be misclassified as a small entity.

In 2015, 981 vessels (i.e., harvesting entities) participated in the groundfish and halibut fisheries directly regulated by the proposed action. Those 981 catcher vessels include 255 vessels that only operated in State waters and possessed an FFP; all of those 255 vessels are classified as small entities. According to data provided by the Alaska Fisheries Information Network, the analysts estimate that 950 of the 981 harvesting entities are classified as small entities. All of the 31 vessels that are classified as non-small entities were members of harvesting cooperatives whose combined gross receipts were greater than $11.0 million in 2015, the most recent year for which complete revenue data is available. Each of the 31 vessels classified as non-small entities is affiliated with a crab cooperative, six are affiliated with a Central GOA Rockfish Program cooperative, two are affiliated with an American Fisheries Act cooperative, and one is affiliated through ownership with the freezer longline cooperative (some entities are affiliated with more than one cooperative across different North Pacific fisheries).

Table 1 provides a count of small and non-small entities (i.e., vessels). The first row shows all vessels with FFPs that fished with nontrawl gear in 2015. The second row is limited to vessels that fished in Federal waters. The bottom four rows shows the number of entities by gear type and area fished. Those rows should not be summed vertically because vessels that fished with both gear types or in both management areas would be double-counted. No vessel less than 40 ft LOA is classified as a non-small entity, and only one vessel less than 57.5 ft LOA is classified as a non-small entity.

This proposed rule adds additional reporting, recordkeeping, and other compliance requirements for vessels that choose to participate in the EM selection pool and vessels that choose to use the exemption in § 679.7(f)(4) to harvest IFQ or CDQ halibut and sablefish. No small entity is subject to reporting requirements that are in addition to or different from the requirements that apply to all directly regulated entities.

No unique professional skills are needed for the vessel owners or operators to comply with the reporting and recordkeeping requirements associated with this proposed rule. Vessel owners or operators would request to be placed in the EM selection pool using ODDS, a tool already used by directly regulated small entities. If they choose to participate in the EM selection pool, vessel owners and operators would be required to assist with the installation of the EM system and conduct basic maintenance to ensure the EM equipment remains functional. Vessel operators would meet with an EM service technician to develop a VMP for their vessel, in which the operator's responsibilities will be clearly defined. These responsibilities can generally be fulfilled by a crewmember of the vessel who already is fulfilling similar functions during fishing activity. The vessel owner or operator would be required to submit the VMP to NMFS for approval.

Vessel owners or operators in the EM selection pool that choose to use the proposed exemption in § 679.7(f)(4) would need to notify NMFS using ODDS when they intend to fish in multiple areas and commit to using a functioning EM system on the whole trip, even if the vessel was not selected for EM coverage. The vessel owner or operator would be required to meet all of the same responsibilities as if the vessel had been selected for EM system coverage for that trip in ODDS. Because the EM system in this instance would be used as a compliance monitoring tool, some additional requirements would apply. If an EM system malfunction occurs during a fishing trip in a manner that does not allow essential information about where the vessel was fishing and what amount of IFQ or CDQ catch was coming aboard to be recorded, the vessel operator would be required to cease fishing immediately and to contact NOAA OLE. Information about the locations fished and the amount caught in each area is paramount to allowing vessels to fish in multiple areas using this exception; therefore, such a requirement is necessary.

No duplication, overlap, or conflict between this proposed action and existing Federal rules has been identified.

No significant alternatives were identified that would accomplish the stated objectives, are consistent with applicable statutes, and that would minimize any significant economic impact of the proposed rule on small entities. The Council and NMFS considered three alternatives. Alternative 1, the no action alternative, would not allow vessels to use an EM system instead of an observer. Alternative 2 would allow the use of EM for catch estimation on vessels in the EM selection pool and allow EM as a monitoring tool when fishing IFQ in multiple areas. Alternative 3 would allow the use of EM for compliance monitoring of vessel operator logbooks used for catch estimation.

The preferred alternative, Alternative 2, was designed to minimize the impacts to small entities from the status quo requirement to carry an observer when selected under the partial coverage category. Alternative 2 provides vessels that meet specific criteria the choice to join the EM selection pool instead of observer selection. Vessels in the EM selection pool would be required to use EM when randomly selected. Relative to Alternative 1 (no action), Alternative 2 provides nontrawl gear catcher vessel operators with the opportunity to participate in fishery monitoring and comply with the Observer Program regulations without carrying a human observer. Alternative 2 could also open new avenues to improve fishery data by collecting at-sea discard information from vessels less than 40 ft LOA, which is not currently gathered.

This proposed rule would not increase the fees that NMFS collects from directly regulated entities. The Analysis prepared for this action identifies the operational costs of participating in the EM program (see ADDRESSES). Directly regulated small entities that individually judge the operational costs of participating in the EM program to be burdensome could continue fishing under the existing human observer selection protocols, with no change in the amount of fees that they would be assessed.

Relative to Alternative 2, Alternative 3 would increase recordkeeping burdens on small entities by requiring skippers to fill out catch logbooks while operating their vessels and could also necessitate expanded dockside monitoring to verify logbooks, which could slow down shoreside operations and potentially increase overall costs at the programmatic level.

This proposed rule contains collection-of-information requirements subject to review and approval by the Office of Management and Budget (OMB) under the Paperwork Reduction Act. These requirements have been submitted to OMB for approval under OMB control number 0648-0318 (North Pacific Observer Program). The public reporting burden for the collection-of-information requirements in this proposed rule includes the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information.

The proposed rule would allow vessel owners or operators to use the existing ODDS to submit a request to be placed in the EM selection pool. In addition, the proposed rule would allow vessel owners or operators in the EM selection pool to submit a request to be removed from the EM selection pool. Public reporting burden per response for these new options in ODDS is estimated to average 5 minutes. If NMFS denies a request to place a vessel in the EM selection pool, the vessel owner may submit an administrative appeal to NMFS. Public reporting burden per response for an administrative appeal is estimated to average 4 hours.

The proposed rule would require all vessel owners and operators in the EM selection pool to register a fishing trip in ODDS. Public reporting burden per response to register a fishing trip in ODDS if a vessel is assigned to the EM selection pool is estimated to average 15 minutes.

The proposed rule would require vessels owners who request to be placed in the EM selection pool to submit a VMP to NMFS. Public reporting burden per response for the VMP is estimated to average 48 hours.

The proposed rule would require all vessel owners and operators in the EM selection pool to close the fishing trip in ODDS. Public reporting burden per response to close a fishing trip in ODDS is estimated to average 5 minutes.

The proposed rule also would require vessel owners selected to carry EM to submit video data storage devices and associated documentation to the EM data reviewer within 2 business days of the end of the fishing trip. Public reporting burden per response is estimated to average 1 hour.

Vessel owners or operators wanting to use EM to fish under the proposed exception in § 679.7(f)(4) would be required to notify NMFS through ODDS. Public reporting burden per response to register a fishing trip in ODDS is estimated to average 15 minutes. The addition of the option to indicate that the vessel will to use EM to fish under the exception in § 679.7(f)(4) during an upcoming fishing trip is not expected to increase the average response time to register a trip in ODDS.

Public comment is sought regarding (1) whether this proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (2) the accuracy of the burden estimate; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information, including through the use of automated collection techniques or other forms of information technology. Send comments on these or any other aspects of the collection of information to NMFS Alaska Region at the ADDRESSES above, email to [email protected], or fax to (202) 395-5806.

For the reasons set out in the preamble, 50 CFR part 679 is proposed to be amended as follows: