Notices. Response to petitions for rulemaking; notice of proposed rulemaking
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BILLING CODE 6560-50-P DEPARTMENT OF TRANSPORTATION National Highway Traffic Safety Administration 49 CFR Part 571 [Docket No. NHTSA 2006-24497] RIN 2127-AI93 Federal Motor Vehicle Safety Standards; Occupant Protection in Interior Impact AGENCY: National Highway Traffic Safety Administration (NHTSA), Department of Transportation (DOT). ACTION: Response to petitions for rulemaking; notice of proposed rulemaking. SUMMARY: Our safety standard on occupant protection in interior impact requires, in part, that light vehicles provide head protection when an occupant's head strikes upper interior components, such as pillars, side rails, headers, and the roof during a crash.
For altered vehicles and vehicles built in two or more stages, these requirements become effective September 1, 2006. The Recreation Vehicle Industry Association and the National Truck Equipment Association petitioned the agency to permanently exclude certain types of altered vehicles and vehicles manufactured in two or more stages from these requirements. This document responds to these petitions for rulemaking and proposes certain amendments to the standard. Based on a careful consideration of both the safety benefits of the upper interior protection requirements, and practicability concerns relating to vehicles built in two or more stages and certain altered vehicles, we are proposing to limit these requirements to only the front seating positions of those vehicles.
Further, we tentatively conclude that it is appropriate to exclude a narrow group of multi-stage vehicles delivered to the final stage manufacturer without an occupant compartment, because of impracticability concerns. We are also proposing to delay the effective date of the head impact protection requirements as they apply to final stage manufacturers and alterers until September 1, 2008. DATES: You should submit your comments early enough to ensure that Docket Management System receives them not later than June 23, 2006.
ADDRESSES: You may submit comments [identified by DOT Docket Number at the beginning of this document] by any of the following methods: • Web site: *http://dms.dot.gov.* Follow the instructions for submitting comments on the DOT electronic docket site. • Fax: 1-202-493-2251. • Mail: Docket Management System; U.S. Department of Transportation, 400 7th Street, SW., Room PL-401, Washington, DC 20590. • Hand Delivery: Room PL-401 on the plaza level of the Nassif Building, 400 7th Street, SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal Holidays. • Federal eRulemaking Portal:
Go to *http://www.regulations.gov.* Follow the online instructions for submitting comments. *Instructions:* All submissions must include the agency name and docket number or Regulatory Identification Number
(RIN)for this rulemaking. For detailed instructions on submitting comments and additional information on the rulemaking process, see the Public Participation heading of the SUPPLEMENTARY INFORMATION section of this document. Note that all comments received will be posted without change to *http://dms.dot.gov,* including any personal information provided. Please see the Privacy Act heading under Regulatory Notices. *Docket:* For access to the docket to read background documents or comments received, go to *http://dms.dot.gov* at any time or to Room PL-01 on the plaza level of the Nassif Building, 400 7th Street, SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal Holidays. FOR FURTHER INFORMATION CONTACT: The following persons at the National Highway Traffic Safety Administration, 400 7th Street, SW., Washington, DC 20590: *For technical and policy issues:* Lori Summers, Office of Crashworthiness Standards, telephone:
(202)366-4917, facsimile:
(202)366-4329, E-mail: *Lori.Summers@dot.gov.* *For legal issues:* George Feygin, Office of the Chief Counsel, telephone:
(202)366-2992, facsimile:
(202)366-3820, E-mail *George.Feygin@dot.gov.* SUPPLEMENTARY INFORMATION: Table of Contents I. Background A. 1995 Final Rule Upgrading FMVSS No. 201 B. Subsequent Amendments to FMVSS No. 201 II. Petitions for Rulemaking A. Recreation Vehicle Industry Association Petition for Rulemaking B. National Truck Equipment Association Petition for Rulemaking III. The Agency's New Approach to Vehicles Built in Two or More Stages and Altered Vehicles A. “Pass-Through” Certification B. The Agency's Authority To Exclude Multi-Stage Vehicles From FMVSSs C. New Temporary Exemption Procedures Available to Final Stage Manufacturers and Alterers IV. Response to the RVIA and NTEA Petitions for Rulemaking A. Proposal To Limit the Occupant Compartment Area Subject to the FMH Impact Requirements in Ambulances, Motor Homes, and Other Vehicles Manufactured in Two or More Stages, and Altered Vehicles B. Proposal To Exclude Vehicles Manufactured in Two or More Stages, Other Than Motor Homes, Chassis Cabs, Cutaway Vans, and Other Incomplete Vehicles With a Furnished Front Compartment, From FMH Impact Requirements C. Question Regarding Multistage Vehicles With Raised Roofs D. Additional Relief Is Not Warranted V. Effective Date VI. Submission of Comments VII. Regulatory Analyses and Notices VIII. Proposed Regulatory Text I. Background A. 1995 Final Rule Upgrading FMVSS No. 201 On August 18, 1995, the National Highway Traffic Safety Administration (NHTSA) issued a final rule (August 1995 final rule) amending Federal Motor Vehicle Safety Standard (FMVSS) No. 201, “Occupant Protection in Interior Impact,” to provide enhanced head impact protection. 1 The August 1995 final rule required passenger cars, and trucks, buses and multipurpose passenger vehicles
(MPVs)with a gross vehicle weight rating
(GVWR)of 4,536 kilograms (10,000 pounds) or less, to provide protection when an occupant's head strikes upper interior components, including pillars, side rails, headers, and the roof, during a crash. The new head protection requirements were necessary because even in vehicles equipped with air bags, head impacts with upper interior components resulted in a significant number of occupant injuries and fatalities. 1 *See* 60 FR 43031, Aug. 18, 1995; Docket No. NHTSA-1996-1762-1. The August 1995 final rule significantly expanded the scope of FMVSS No. 201. Previously, the standard applied to the instrument panel, seat backs, interior compartment doors, arm rests and sun visors, but not to interior components such as pillars and headers. The final rule set minimum performance requirements for these upper interior components by establishing target areas that must be padded or otherwise have energy absorbing properties to minimize head injury in the event of a crash. The final rule added procedures for a new in-vehicle component test in which a free-motion head form
(FMH)is fired at certain target locations on the upper interior of a vehicle at an impact speed of 24 km/h (15 mph). Targets that are located on or within 50 mm (2 inches) of dynamically deployable upper interior head protection systems (air bags systems) can, at the option of the manufacturer, be impacted at the reduced speed of 19 km/h (12 mph). Data collected from an FMH impact are translated into a Head Injury Criterion (HIC(d)) score. The resultant HIC(d) must not exceed 1000. The FMH impact requirements excluded targets located on convertible roof frames or roof linkage mechanisms, targets located at least 24 inches rearward of the rearmost designated seating position, and targets located at least 24 inches rearward of the driver's seating position in an ambulance or a motor home. Walk-in van-type vehicles were also excluded from the new requirements because upper interior components on those vehicles are located much higher compared to other vehicles, and head impacts against these components are unlikely for belted occupants. 2 2 The current exclusions are specified in S6.3 of 49 CFR 571.201. The 1995 final rule provided manufacturers with three alternate phase-in schedules for complying with the FMH impact requirements. At this time, all vehicles except altered vehicles and vehicles manufactured in two-or-more stages are required to comply with the FMH impact requirements. 3 As discussed below, the effective date for altered vehicles and vehicles manufactured in two or more stages to comply with these requirements is presently September 1, 2006. 4 3 We note that under S6.3(d), walk-in van-type vehicles are permanently excluded from the FMH impact requirements. 4 *See* S6.1.4 of 49 CFR 571.201. B. Subsequent Amendments to FMVSS No. 201 On April 8, 1997, the agency responded to petitions for reconsideration of the 1995 final rule. 5 Among other things, the agency delayed the effective date of the FMH impact requirements for vehicles manufactured in two or more stages until September 1, 2002. The agency also excluded buses with a GVWR of more than 3,856 kg (8,500 pounds) from the FMH impact requirements because we were concerned that these requirements were prohibitively costly for that class of vehicles. 6 Finally, the agency denied a petition to exclude police vehicles from the FMH impact requirements because the petitioner did not present evidence to indicate that police equipment required different treatment from interior attachments present in other vehicles subjected to testing. 5 *See* 62 FR 16718, April 8, 1997. 6 *See id* at 16720. In 2002, in response to petitions (described in detail in the next section) to permanently exclude altered vehicles and vehicles manufactured in two or more stages from the FMH impact requirements, the agency issued an interim final rule, delaying the effective date of these requirements as they apply to altered vehicles and vehicles manufactured in two or more stages until September 1, 2003. 7 On August 28, 2003, the agency further delayed the effective date of the FMH impact requirements for altered vehicles and vehicles manufactured in two or more stages until September 1, 2006. 8 The issue of permanent exclusion of these types of vehicles is being addressed in the subsequent sections of this notice. 9 7 *See* 67 FR 41348, June 18, 2002. 8 *See* 68 FR 51706, August 28, 2003. 9 We note that there have been other, more recent amendments to the requirements of FMVSS No. 201. However, their content had no relevance to this NPRM. II. Petitions for Rulemaking This document addresses petitions for rulemaking submitted by the Recreation Vehicle Industry Association
(RVIA)and the National Truck Equipment Association (NTEA). The member companies of RVIA and NTEA are generally considered final-stage manufacturers and alterers. That is, they purchase incomplete vehicles from major manufacturers to serve as the basis for specialty vehicles (manufactured in two or more stages) for certain uses and markets, or alter completed vehicles prior to first retail sale. As such, the petitioners' members face a variety of challenges in certifying that their vehicles meet applicable safety standards. We note that with respect to vehicles manufactured in two or more stages, some multi-stage vehicles are built from chassis-cabs with a completed occupant compartment. Others are built from less complete vehicles, often necessitating the addition by the final-stage manufacturer of its own occupant compartment. The final stage manufacturer is responsible for certification of the completed vehicle, although, as discussed below, it can often “pass-through” by incomplete vehicle manufacturer. A. Recreation Vehicle Industry Association Petition for Rulemaking On October 4, 2001, the RVIA submitted a petition for rulemaking requesting that “van conversions, altered vehicles, and motor homes” with a GVWR of 10,000 pounds or less be excluded from the requirements of the August 1995 final rule. 10 10 To examine the petition, please go to *http://dms.dot.gov/* and enter Docket No. NHTSA-2000-7145-6. The RVIA is a national trade association representing final stage manufacturers and alterers. These entities alter vans, pickup trucks, and sport utility vehicles prior to first retail sale (RVIA refers to these vehicles collectively as conversion vehicles or “CVs”), and also manufacture motor homes. The RVIA petition requested that CVs and motor homes be excluded from the FMH impact requirements for the following reasons: 1. RVIA argues that in the statutory enactment directing NHTSA to improve head impact protection, Congress specifically limited its mandate to passenger cars. RVIA stated that a proposed Senate amendment to include multipurpose passenger vehicles
(MPVs)and light duty trucks
(LDTs)was expressly rejected. 11 Because the agency chose to proceed beyond the congressional mandate, RVIA argues that NHTSA has the discretion to exclude vehicles, other than passenger cars, from the FMH impact requirements. 11 *See* H.R. Conf. Rep. No. 102-404, at 395-396 (1991). 2. With the exception of a single entity, all RVIA members fall under the “small business” definition for the purposes of Small Business Administration regulations. 12 RVIA states that its members have been operating in a declining market where production of CVs and motor homes has been declining sharply. For example, in 1999, RVIA members produced 104,100 CVs and 4,634 motor homes. By contrast, 2001 shipments were projected at 38,000 CVs and 3,629 motor homes. In light of their member's “small business” status and declining sales, RVIA argues that the member companies do not have the financial resources and technical expertise to comply with FMH impact requirements. 12 *See* 13 CFR 121.201. 3. RVIA estimates the cost of compliance (including development and tooling) to average $2,401 to $4,850 per each CV and $4,748 to $5,747 per each motor home, respectively. 13 RVIA estimates that the costs associated with certification testing to be as high as $46,000 for each vehicle configuration. 13 RVIA's detailed certification testing and tooling cost estimates are on page 7 and in Exhibit D of the petition (Docket No. NHTSA-2002-7145-6). RVIA argues that most CVs and motor homes feature unique interior designs. Specifically, these vehicles include overhead cabinets, side valances, raised roof structures, and other unusual interior components. RVIA members offer an average of 18 different CV configurations each, all of which would require separate certification testing. Some offer as many as 38 different CV variations. Motor home manufacturers offer as many as 14 motor home variations. However, at least one motor home manufacturer offers at least 73 different “floor plans.” RVIA states that this product variation necessitates conducting FMH impact testing on each vehicle configuration and may even require multiple identical vehicles to test each configuration. Because of the differences in the customized interiors, RVIA argues that the manufacturers have been unable to arrive at practicable and cost-effective “countermeasures;” i.e., additional padding designed to bring these vehicles into compliance with FMH impact requirements. 4. RVIA states that cooperative testing, suggested by NHTSA as a way to lessen compliance costs associated with FMH requirements, is not practicable because each RVIA member manufactures unique vehicles, each substantially different from its competitors. Because these vehicles are different, cooperative testing is impossible unless interiors for all vehicles manufactured by RVIA members are made uniform. Accordingly, RVIA argues that cooperative testing would eliminate interior customization, which would in turn result in a loss of market for CVs and motor homes. 5. RVIA argues that the safety benefits of FMH impact requirements as applied to CVs and motor homes are marginal. RVIA conducted a survey of CV and motor home manufacturers which showed no crashes in which an occupant injury or death had occurred due to head impacts with upper interior components covered by FMH impact requirements. RVIA cites Fatal Analysis Reporting System
(FARS)data in arguing that van-based motor homes are safe. Specifically, between 1996 and 1999, there was an average of 14 fatalities per year in all van-based motor homes regardless of the GVWR, which translates to 0.0039 fatalities per 1,000,000 annual vehicle miles (compared to 0.0143 fatalities per 1,000,000 miles for passenger cars). Based on these data, RVIA estimates that the safety benefit reduction from excluding small, van-based motor homes from the FMH impact requirements would be extremely low. Since FARS does not track crash data for all CVs, RVIA was not able to make a similar estimate for CVs. However, RVIA argues that CVs are safer than an average passenger car, and that the safety benefit reduction in the case of CVs would also be quite low. 14 14 Petitioners support this assertion by a letter from RV Alliance America. The letter is found in Exhibit E (Docket No. NHTSA-2002-7145-6). 6. RVIA members produce vehicles to the consumer's specifications and many special components and designs are installed in response to consumer requests. RVIA argues that in granting a previous (unrelated) temporary exemption from the requirements of FMVSS No. 201, the agency acknowledged public benefit in affording consumers a wide choice of motor vehicles. 15 Petitioners asked that the agency adhere to this policy by allowing RVIA members to continue manufacturing CVs and motor homes built to customer specifications. 15 *See* 64 FR 61379, November 10, 1999. B. National Truck Equipment Association Petition for Rulemaking On November 27, 2001, NTEA submitted a petition for rulemaking requesting that certain vehicles manufactured in two or more stages be excluded from FMH impact requirements arguing that the requirements are impracticable as they apply to these vehicles. 16 These vehicles included ambulances, fire fighting, rescue, emergency, and law enforcement vehicles. Additionally, the NTEA requested exemption from FMH impact requirements for any target in a truck or multipurpose passenger vehicle located rearward of a vertical transverse plane through the foremost design H-point of the rear most forward facing designated seating position where the vehicle is equipped with a full or partial bulkhead or other similar device for the purpose of protecting or isolating the driver and passenger compartment from the cargo carrying, load bearing, or work performing area of the vehicle. 16 *See* NHTSA-2001-8876-10 at *http://dms.dot.gov/* . NTEA also filed subsequent petitions to delay the effective date of the August 1995 final rule as it applied to vehicles manufactured in two or more stages. These later petitions relied on the same arguments presented to the agency in the November 27, 2001 document ( *see* NHTSA-2002-12480-2, NHTSA-2002-12480-3). NTEA represents 1,500 distributors, final stage and intermediate manufacturers, and alterers of work-related trucks, truck bodies and equipment. More specifically, NTEA member companies produce ambulances, fire fighting, rescue, emergency or law enforcement vehicles, utility company vehicles, aerial bucket trucks, delivery trucks and a variety of other specialized vehicles for commercial or vocational use. These entities generally use incomplete vehicles provided by major manufacturers and assemble a completed vehicle for a specified purpose using the chassis provided by another company. As discussed above, altered vehicles and vehicles manufactured in two or more stages must comply with FMH impact requirements beginning September 1, 2006. In 2001, NTEA estimated that 377,000 vehicles produced by its members annually would have to meet the FMH impact requirements. NTEA asked for an exclusion of such vehicles because it believes that NTEA member manufacturers will not be able to demonstrate that these vehicles comply with FMH impact requirements without conducting individual full-scale dynamic testing on each vehicle model, which NTEA argues is not economically or technologically possible. Other options for demonstrating compliance, such as pass through certifications, engineering analysis, and computer modeling, are, according to NTEA, not available or economically feasible. First, NTEA believes that FMH testing for the subject vehicles is not economically feasible because of the number of vehicle configurations produced by the multi-stage truck and specialty vehicle industry. NTEA estimates that in aggregate, compliance testing would cost its members $160,000,000. Specifically, NTEA states that there are over 1,200 identifiable vehicle configurations produced by its members. For each configuration, the cost of actual testing is approximately $14,000 to $17,000 (NTEA states that this cost estimate does not account for development costs, costs for re-testing after failures, transportation of the vehicle to the test facility, or countermeasures in production vehicles that would be necessary to produce a compliant vehicle). 17 Besides costs, NTEA argues that it is not feasible to test each vehicle configuration produced by its member manufacturers because they are aware of only two testing facilities that provide dynamic testing, and each is only capable of testing 12 vehicles per month. 17 *See* Appendix A of the NTEA petition. Second, NTEA stated that alternative options to demonstrate compliance such as pass-through certifications, 18 test data from component vendors, engineering analysis, computer modeling, and consortium dynamic testing, are not available. 18 In a “pass through” of chassis manufacturer compliance, multi-stage manufacturers certify compliance by “passing through” the chassis manufacturer's certification. Specifically, NTEA argued that pass-through is not an available option because the member manufacturers often complete the vehicle “outside the parameters” provided by the chassis manufacturer. For example, the installation of bulkheads or partitions usually invalidates the chassis manufacturer's compliance statement. In many work vans, emergency vehicles, or police vehicles, bulkheads or dividers are needed to ensure that objects or people that must remain in the rear of the vehicle actually do so. Installation of these bulkheads, according to NTEA, is likely to require relocation of target areas originally certified by the incomplete vehicle manufacturer, adding to the compliance burden of the NTEA member and frustrating the ability to take advantage of “pass through” certification. Furthermore, NTEA asserts that the chassis manufacturer's completion guidelines are too restrictive to allow for compliance. Additionally, NTEA argued that other compliance options are also unavailable to multi-stage manufacturers. NTEA stated that the chassis manufacturers do not provide sufficient compliance information to the multi-stage manufacturers and that the test data is not enough to certify compliance under FMVSS No. 201 because validation requires in-system testing. NTEA also argued that engineering analysis and computer modeling are not possible because they require previous dynamic test data that do not exist. Finally, NTEA stated that consortium testing is not an option since the compliance tests developed by NHTSA are so specific that minor differences produce significantly different test results. III. The Agency's New Approach to Vehicles Built in Two or More Stages and Altered Vehicles On February 14, 2005, the agency issued a final rule (February 2005 final rule) which enables more final stage manufacturers to take advantage of “pass-through” certification by requiring incomplete vehicle manufacturers to assume certification responsibility for the vehicle as further manufactured or completed by a final-stage manufacturer, to the extent that the vehicle is completed in accordance with the Incomplete Vehicle Document
(IVD)described below. 19 Previously, this requirement only applied to chassis-cab manufacturers. The February 2005 final rule also created a new process under which manufacturers of vehicles built in two or more stages and alterers could obtain temporary exemptions from certain dynamic performance requirements. Finally, as a part of that rulemaking, we refined our analysis of the agency's authority to establish different requirements for vehicles built in two or more stages. The February 2005 final rule becomes effective September 1, 2006. 19 *See* 70 FR 7414, Docket No. 1999-5673-54. The agency is in the process of considering a petition for reconsideration of the February 2005 final rule submitted by NTEA. 20 We expect to issue our response shortly. 20 *See* Docket No. NHTSA-1999-5673-55. *See also* comment concerning the NTEA petition for reconsideration submitted by General Motors (Docket No. NHTSA-1999-5673-56). A. “Pass-Through” Certification Manufacturers of chassis-cabs are currently required to place on the incomplete vehicle a certification label stating under what conditions the chassis-cab has been certified. This allows what is commonly referred to as “pass-through” certification. As long as a subsequent manufacturer meets the conditions of the chassis-cab certification, that manufacturer may rely on this certification and pass it through when certifying the completed vehicle. However, the current certification regulations do not impose corresponding certification responsibilities on manufacturers of incomplete vehicles other than chassis-cabs ( *e.g.* , incomplete vans, cut-away chassis, stripped chassis and chassis-cowls). The February 2005 final rule extended these certification responsibilities to all types of incomplete vehicles. More specifically, beginning September 1, 2006, all incomplete vehicle manufacturers and intermediate manufacturers will have certification responsibilities for the vehicles as further manufactured or completed by final-stage manufacturers, to the extent that the vehicle is completed in accordance with the conditions specified in the IVD. 21 21 The IVD details, with varying degrees of specificity, the types of future manufacturing contemplated by the incomplete vehicle manufacturer and must provide, for each applicable safety standard, one of three statements that a subsequent manufacturer can rely on when certifying compliance of the vehicle, as finally manufactured, to some or all of all applicable FMVSSs. First, the IVD may state, with respect to a particular safety standard, that the vehicle, when completed, will conform to the standard if no alterations are made in identified components of the incomplete vehicle (this representation is most often made with respect to chassis-cabs, since a significant portion of the occupant compartment is already complete). Second, the IVD may provide a statement for a particular standard or set of standards of specific conditions of final manufacture under which the completed vehicle will conform to the standard (this statement is applicable in those instances in which the incomplete vehicle manufacturer has provided all or a portion of the equipment needed to comply with the standard, but subsequent manufacturing might be expected to change the vehicle such that it may not comply with the standard once finally manufactured). Third, the IVD may identify those standards for which no representation of conformity is made (for example, a manufacturer of a stripped chassis may be unable to make any representations about conformity to any crashworthiness standards if the incomplete vehicle does not contain an occupant compartment). B. The Agency's Authority to Exclude Multi-Stage Vehicles From FMVSSs In the February 2005 final rule, the agency reconsidered a previous position and concluded that it has authority to exclude multi-stage vehicles as a group from FMVSSs that are impracticable as they applied to these vehicles, or to subject these vehicles to different requirements. NHTSA concluded that it is appropriate to consider multi-stage vehicles as a vehicle type subject to consideration in the establishment of a regulation. For a detailed discussion of this issue, see 70 FR 7014 at 7421. C. New Temporary Exemption Procedures Available to Final Stage Manufacturers and Alterers The February 2005 final rule established new procedures available to manufacturers of vehicles built in two or more stages and alterers for obtaining temporary exemptions from FMVSSs for which the agency specifies certain dynamic test procedures to determine compliance. The new procedures streamline the temporary exemption process by allowing an association or another party representing the interests of multiple manufacturers to bundle exemption petitions for a specific vehicle design, thus permitting a single explanation of the potential safety impact and good faith attempts to comply with the standards. The new exemption procedures specify that each manufacturer seeking an exemption is required to demonstrate financial hardship and good faith efforts to comply with applicable requirements. Exemptions based on financial hardship are available to companies manufacturing less than 10,000 vehicles per year, and any one exemption cannot apply to more than 2,500 vehicles per year. We note that, given the regulatory text specifying the new temporary exemption procedure, there is an issue whether that procedure is available for the head impact protection requirements at issue in the NTEA and RVIA petitions. That regulatory text reads as follows: * * *An alterer, intermediate or final-stage manufacturer, or industry trade association representing a group of alterers, intermediate and/or final-stage manufacturers may seek * * * a temporary exemption or a renewal of a temporary exemption from any performance requirement for which a Federal motor vehicle safety standard specifies the use of a **dynamic crash test procedure** to determine compliance. [Emphasis added] The procedure for the head impact protection requirements does not incorporate a full scale crash test except as an option for vehicles equipped with a dynamically deployable upper interior head protection system, which we do not believe is relevant to vehicles that are subject of the RVIA and NTEA FMVSS No. 201 petitions. Nevertheless, the upper interior requirements have a number of similarities to crash tests. For purposes of this rulemaking, we are proposing to extend the scope of the new temporary exemption procedures such that multistage manufacturers would be able to petition NHTSA for an exemption from FMH impact requirements. First, we observe that small volume multistage manufacturers are currently able to petition the agency for temporary exemptions from all FMVSSs, including FMH impact requirements, under the existing temporary exemption procedures currently in effect. Therefore, our proposal to expand the scope of the new temporary exemption procedures to include consideration of petitions related to FMH impact testing relates to the availability of the more streamlined procedures rather than to the possibility of a manufacturer obtaining an exemption, in appropriate circumstances, at all. Second, we believe that, in limited circumstances, the difficulty or impracticability of testing a multitude of unique vehicle configurations, or otherwise obtaining an appropriate basis for certification, with the associated financial hardships, may extend to FMH impact requirements. Specifically, there is a considerable cost associated with FMH impact tests and vehicles are usually damaged during testing. Finally, we expect the number of instances in which an exemption will be needed to be very small because in order to petition for an exemption, the petitioner would have to show why FMH impact tests would cause substantial economic hardship. This showing must include detailed financial information and a complete description of the petitioner's good faith efforts to comply with the standards. Specifically, the petitioner would have to explain the inadequacy of IVD documents furnished by one or more incomplete vehicle manufacturers or by prior intermediate manufacturers pursuant to 49 CFR part 568. The petitioner would also have to show why generic or cooperative testing is impracticable. In addition, each petitioner is required to explain under § 555.13(c) why the requested temporary exemption would not unreasonably degrade safety. We are not proposing specific regulatory text in this document. We note that this issue is also before the agency in the context of petitions for reconsideration of the February 2005 final rule establishing the new exemption procedures. We also note that depending on the agency's decision in that proceeding, this issue could become moot as to this rulemaking. IV. Response to the RVIA and NTEA Petitions for Rulemaking As discussed above, RVIA and NTEA petitioned the agency to permanently exclude certain altered vehicles and vehicles manufactured in two or more stages from all or a portion of the FMH impact requirements. We are granting the petition in part, by proposing to further limit the area that is subject to FMH impact requirements in ambulances, motor homes, and extending this limitation to other vehicles manufactured in two or more stages, as well as altered vehicles. We are also proposing to exclude vehicles delivered to a final stage manufacturer without an occupant compartment from the FMH impact requirements. We are denying all other parts of the petitions. A. Proposal To Limit the Occupant Compartment Area Subject to the FMH Impact Requirements in Ambulances, Motor Homes, and Other Vehicles Manufactured in Two or More Stages, and Altered Vehicles In ambulances and motor homes, the current standard excludes the occupant compartment area located more than 600 mm (24 inches) behind the seating reference point of the driver's seating position from the FMH impact requirements. For all other vehicles, the occupant compartment area located more than 600 mm (24 inches) behind the seating reference point of the rearmost designated seating position is similarly excluded from the FMH impact requirements. For altered vehicles and vehicles manufactured in two or more stages, including motor homes and ambulances, we are proposing to limit the area subject to the FMH impact requirements to not more than 300 mm (12 inches) behind the seating reference point of the driver's seating position. This would have the effect of limiting the FMH impact requirements to the front seating positions for these vehicles. We believe that the distance reduction to 300 mm (12 inches) is more representative of the distance between the seating reference point and the upper seat back/head restraint location where the occupant's head is located. Because of the front head restraint height requirements, we believe it is unlikely that the head of a seated occupant would come in contact with bulkheads, partitions, or overhead cabinets and storage shelves located further than 300 mm (12 inches) behind the seating reference point of the driver's seating position. However, we are not granting the NTEA proposal to limit the seat position for this exclusion to the foremost design H-point (rather than the seating reference point) since we believe that a large portion of the seated driver's head would not be provided head protection in the areas of B-pillars and side rails between the A-pillar and the B-pillar. In developing this proposal, we have carefully considered both the safety benefits of the FMH requirements and practicability concerns relating to multistage vehicles. Based on previous estimates of the benefits of the FMVSS No. 201 final rule, and estimates from the National Automotive Sampling System, Crashworthiness Data System of the percent of injuries occurring to light truck occupants in multi-stage vehicles, the agency derived the following estimate of safety benefits. Requiring all multi-stage manufactured vehicles to meet FMVSS No. 201 would have annual benefits in the front seat of 16-22 fewer fatalities and 19-22 fewer AIS 2-5 injuries. However, in the rear seats, the benefits are estimated to be less than 1 fatality (which would round down to 0) and 1 AIS 2-5 injury. Thus, based on this analysis, excluding multi-stage vehicles from target points that could not be struck by the front row occupants would have a very small impact on safety. Given the small safety benefits associated with the FMH impact requirements for rear seating positions and practicability concerns, we have tentatively concluded that the FMH impact requirements should be limited to the front seating positions for these vehicles. As indicated in its petition, many commercial vehicles manufactured by NTEA members feature bulkheads or partitions located less than 600 mm (24 inches) behind the rearmost designated seating position. Bulkheads or partitions are used in a variety of work vehicles that haul odd-shaped objects that cannot be readily secured in the cargo area. These structures protect the driver and passenger from loose or shifting or shifting cargo or work equipment. NTEA argued that the installation of bulkheads or partitions would likely require relocation of target areas originally certified by the incomplete vehicle manufacturer, thus significantly adding to the compliance burden. As discussed above, RVIA argued that most CVs and motor homes feature unique interior designs. Specifically, these vehicles include overhead cabinets, side valances, raised roof structures, and other unusual interior components. Among other things, RVIA stated that cooperative testing, suggested by NHTSA as a way to lessen compliance costs associated with FMH requirements, is not practicable because each RVIA member manufactures unique vehicles, each substantially different from its competitors. RVIA argued that cooperative testing would eliminate interior customization, which would in turn result in a loss of market for CVs and motor homes. We believe our proposal to effectively limit the FMH impact requirements to the front seating positions for these vehicles would provide appropriate relief to the industries represented by NTEA and RVIA, while continuing to meet the need for safety. As discussed above, the benefits related to rear seating positions are very small. We note that NTEA and RVIA members can ordinarily purchase incomplete vehicles that are already designed to meet the FMH impact requirements for the front seating positions. Under our proposal, final stage manufacturers would ordinarily be able to take advantage of pass-through certification by not changing the upper interior portions of the front of the vehicle. We believe the requirements are justified by safety. As indicated above, we estimate that requiring all multi-stage manufactured vehicles to meet FMVSS No. 201 would have annual benefits in the front seat of 16-22 fewer fatalities and 19-22 fewer AIS 2-5 injuries. Given the safety significance of these requirements, we believe, in situations where final stage manufacturers use incomplete vehicles that have occupant compartments that either are designed to meet the FMH impact requirements for the front seating positions or can be purchased in a configuration that is designed to meet those requirements, it would be inconsistent with the need for safety to generally exclude the vehicles from these head impact protection requirements. We also note that while final stage manufacturers will be able to submit petitions under subpart B of part 555, it is unlikely in this type of situation that the agency would find it in the public interest to exclude final stage manufacturers from the front seat head impact protection requirements of FMVSS No. 201 to facilitate customization of the upper interior portions of the front of the vehicle. Our proposal would, however, facilitate customization of the rear of vehicles, including conversion vans, where there would be no significant impact on safety. Moreover, we continue to believe that final stage manufacturers can use cooperative testing to determine the types of changes that can be made while enabling vehicles to continue to comply with the FMH requirements, including ones related to use of overhead cabinets, raised roof structures, and so forth. Thus, while customization of the front portion of occupant compartments will be more difficult and may be more limited, it will by no means be eliminated. B. Proposal To Exclude Vehicles Manufactured in Two or More Stages, Other Than Motor Homes, Chassis Cabs, Cutaway Vans, and Other Incomplete Vehicles With a Furnished Front Compartment, From FMH Impact Requirements We tentatively conclude that a narrow group of multi-stage vehicles contains physical attributes that make compliance with the FMH impact requirements impracticable. These are vehicles built on a “stripped” chassis; i.e., an incomplete vehicle without an occupant compartment. The manufacturers of these vehicles would not be able to rely on pass-through certification. This is because these vehicles are highly customized and produced in quantities that would make compliance prohibitively expensive. Further, these vehicles are often equipped with partitions and bulkheads that present a further impediment to the compliance efforts. We note that for vehicles manufactured from stripped chassis, the cost of meeting the FMH impact requirements could be substantial because the alternative means of compliance such as pass-through certification are not available. In the context of serving niche markets demanding specialized work vehicles that are not delivered to the final stage manufacturers with an intact occupant compartment (unlike for example, chassis cabs and cut-away vans), we believe that the physical limitations of these vehicles can adversely affect the ability of multi-stage manufacturers to design safety performance into their completed vehicles. Accordingly, we believe it appropriate to exclude this narrow group of vehicles from FMH impact testing. C. Question Regarding Multistage Vehicles With Raised Roofs Certain multistage vehicles are manufactured with raised roofs. The final-stage manufacturer cuts out a portion of the original roof and attaches a raised roof, typically made of fiberglass that may also have metal inserts imbedded for strength. The manufacturers of these vehicles may not be able to take advantage of pass through certification because raising the roof affects the location of certain targets subject to FMH impact testing. The raised roof has a different shape than the van portion of an incomplete vehicle. Therefore, the reference points located on the exterior, i.e., APR and BPR, will probably not be the same and the FMH targets inside the vehicle may be in different locations from those that the incomplete vehicle manufacturer stated could be certified as pass through. In addition, the portion of the roof over the front seating area would be affected when the final-stage manufacturer installs a headliner and/or padding in a vehicle with a raised roof or a non-raised roof. We believe that the original targets in raised roof vehicles, e.g., those along the pillars and side rails, may be as appropriate for safety as the targets that would be calculated for the new configuration. We are therefore considering permitting manufacturers to meet requirements for either the target locations as calculated for the original configuration or changed configuration. This would also make compliance easier for final stage manufacturers. We are asking for comment on this approach to targets in vehicles with raised roofs. D. Additional Relief Is Not Warranted After carefully considering RVIA's and NTEA's petitions, we have decided not to propose a broader exclusion from the FMH requirements for front seat areas of conversion vans, motor homes, ambulances, fire fighting, rescue, emergency, law enforcement, and altered vehicles. As explained above, we believe that the head impact protection requirements provide important safety benefits in front seating positions of vehicles manufactured in two or more stages, and our proposal would provide appropriate relief to the industries represented by NTEA and RVIA, while continuing to meet the need for safety. RVIA and NTEA did not provide any convincing reasons why occupants of its members' vehicles would not benefit from the same level of protection as required for other vehicles. Conversion vans, light duty motor homes, and other altered vehicles are typically driven by regular passenger vehicle drivers who require the same type of occupant protection as other passenger vehicle drivers. Furthermore, the petitioners did not explain why the occupants of ambulances, fire fighting, rescue, emergency, and law enforcement vehicles that may additionally travel at high rates of speed through unconventional traffic paths would not benefit from countermeasures designed to reduce head impacts in the event of a collision. We note that the petitioners are also able to purchase incomplete vehicles that are already designed to meet the FMH impact requirements for the front seating positions. Under our proposal, the rear portions of multi-stage and altered vehicles, where the majority of vehicle customization is performed, would be excluded from the FMH requirements. Furthermore, final stage manufacturers would ordinarily be able to take advantage of pass-through certification by not changing the upper interior portions of the front of the vehicle. Accordingly, compliance costs and test burdens, (i.e., the petitioners' main concerns), would be substantially reduced when certifying these vehicles. We further believe that the compliance costs provided by the RVIA and NTEA in their petition were overstated. For example, the compliance test cost estimates provided by RVIA were not averaged over the years of vehicle production. Instead, the costs were reflective of only the first production year. RVIA did not provide the actual production cycles for its various vehicles, so its cost estimates were based on a one-year production cycle. Typically, when vehicle compliance costs are amortized over the vehicle production years, the costs are a lot smaller, as evidenced by the rulemaking involving small school buses where the estimated compliance cost per multi-stage vehicle was less than $1,000 in 1993 economics. 22 22 *See* 62 FR 16718, April 8, 1997. NTEA estimated that compliance with the FMH requirements would cost its industry a minimum of $160 million and 64 years to comply. However, this was based on the availability of two test laboratories that conducted FMH testing in 2001 and no pass-through certification was applied. We believe that laboratory experience has improved greatly since that time, and the exclusions that we are proposing in this notice will have a large impact on reducing the actual compliance costs. RVIA and NTEA did not provide any convincing reasons why it is not generally practicable for these vehicles to comply. With respect to conversion vans and motor homes, the agency believes that there are alternative locations for the installation of hardwood cabinetry, and audio/video entertainment systems (other than mounted over the heads of front seat occupants). There are also other more compliant materials than hardwood that could be utilized by conversion van and motor home customization specialists. As to fire fighting and rescue vehicles (with a gross vehicle weight rating of 4,536 kg or less), these vehicles are basically multi-stage work vehicles furnished with special equipment and tools designed exclusively for the purpose of rescuing people in emergency situations. We are proposing to exclude the rear compartment area of these vehicles from FMH target requirements, as we are for other multistage. We do not believe there is any reason to treat the front occupant compartment of these vehicles differently from other multistage vehicles (such as utility company trucks, contractor vehicles, snow removal vehicles, etc). Thus, we believe that no additional relief is necessary. The agency has also previously considered and denied the exclusion of police cars from the FMH requirements. 23 Our position on that issue has not changed substantially. Previously, the NTEA requested that police cars be excluded since these cars have special equipment, including gun racks and spotlight control mounted on the upper roof interior, and a bulkhead behind the front seats. However, the agency believes that interior components, such as gun racks and spotlight controls do not necessarily have to be mounted on the vehicle roof interior surface in the vicinity of the driver's head, and can alternatively be accommodated with padding. Furthermore, we are aware that there are available equipment packages (such as remote-controlled spotlights and A-pillar mounted spotlights below the AP3 target location) that would facilitate compliance with the FMH requirements. 23 *See* id. VII. Effective Date We are proposing to delay the effective date of the FMH impact requirements as they apply to final stage manufacturers and alterers from September 1, 2006 until September 1, 2008. VIII. Submission of Comments A. How Do I Prepare and Submit Comments? Your comments must be written and in English. To ensure that your comments are filed correctly in the Docket, please include the docket number of this document in your comments. Your comments must not be more than 15 pages long. 24 NHTSA established this limit to encourage you to write your primary comments in a concise fashion. However, you may attach necessary additional documents to your comments. There is no limit on the length of the attachments. 24 49 CFR 553.21. Please submit two copies of your comments, including the attachments, to Docket Management at the address given above under ADDRESSES . You may also submit your comments to the docket electronically by logging onto the Docket Management System
(DMS)Web site at *http://dms.dot.gov.* Click on “Help & Information” or “Help/Info” to obtain instructions for filing your comments electronically. Please note, if you are submitting comments electronically as a PDF (Adobe) file, we ask that the documents submitted be scanned using Optical Character Recognition
(OCR)process, thus allowing the agency to search and copy certain portions of your submissions. 25 25 Optical character recognition
(OCR)is the process of converting an image of text, such as a scanned paper document or electronic fax file, into computer-editable text. How Can I Be Sure That My Comments Were Received? If you wish Docket Management to notify you upon its receipt of your comments, enclose a self-addressed, stamped postcard in the envelope containing your comments. Upon receiving your comments, Docket Management will return the postcard by mail. How Do I Submit Confidential Business Information? If you wish to submit any information under a claim of confidentiality, you should submit three copies of your complete submission, including the information you claim to be confidential business information, to the Chief Counsel, NHTSA, at the address given above under FOR FURTHER INFORMATION CONTACT . In addition, you should submit two copies, from which you have deleted the claimed confidential business information, to Docket Management at the address given above under ADDRESSES . When you send a comment containing information claimed to be confidential business information, you should include a cover letter setting forth the information specified in NHTSA's confidential business information regulation (49 CFR part 512). Will the Agency Consider Late Comments? NHTSA will consider all comments that Docket Management receives before the close of business on the comment closing date indicated above under DATES . To the extent possible, the agency will also consider comments that Docket Management receives after that date. If Docket Management receives a comment too late for the agency to consider it in developing a final rule (assuming that one is issued), the agency will consider that comment as an informal suggestion for future rulemaking action. How Can I Read the Comments Submitted by Other People? You may read the comments received by Docket Management at the address given above under ADDRESSES . The hours of the Docket are indicated above in the same location. You may also see the comments on the Internet. To read the comments on the Internet, take the following steps: 1. Go to the Docket Management System
(DMS)Web page of the Department of Transportation *http://dms.dot.gov.* 2. On that page, click on “search.” 3. On the next page *http://dms.dot.gov/search* , type in the four-digit docket number shown at the beginning of this document. Example: If the docket number were “NHTSA-1998-1234,” you would type “1234.” After typing the docket number, click on “search.” 4. On the next page, which contains docket summary information for the docket you selected, click on the desired comments. You may download the comments. Although the comments are imaged documents, instead of word processing documents, the “pdf” versions of the documents are word searchable. Please note that even after the comment closing date, NHTSA will continue to file relevant information in the Docket as it becomes available. Further, some people may submit late comments. Accordingly, the agency recommends that you periodically check the Docket for new material. VIII. Regulatory Analyses and Notices A. Executive Order 12866 and DOT Regulatory Policies and Procedures Executive Order 12866, “Regulatory Planning and Review” (58 FR 51735, October 4, 1993), provides for making determinations whether a regulatory action is “significant” and therefore subject to Office of Management and Budget
(OMB)review and to the requirements of the Executive Order. The Order defines a “significant regulatory action” as one that is likely to result in a rule that may:
(1)Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or Tribal governments or communities;
(2)Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency;
(3)Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or
(4)Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order. This proposal was not reviewed under Executive Order 12866. It is not significant within the meaning of the DOT Regulatory Policies and Procedures. If adopted, it would not impose any new burdens on manufacturers of vehicles built in two or more stages or vehicles alterers. Further, if adopted, this proposal would limit certain existing requirements as they apply to multistage vehicles, and exclude a narrow group of multi-stage vehicles manufactured from chassis without occupant compartments from the same requirements. The agency believes that this impact is so minimal as to not warrant the preparation of a full regulatory evaluation. B. Regulatory Flexibility Act The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 *et seq.* ) requires agencies to evaluate the potential effects of their proposed rules on small businesses, small organizations and small governmental jurisdictions. I have considered the possible effects of this rulemaking action under the Regulatory Flexibility Act and certify that it would not have a significant economic impact on a substantial number of small entities. Under 13 CFR 121.201, the Small Business Administration
(SBA)defines small business (for the purposes of receiving SBA assistance) as a business with less than 750 employees. Most of the manufacturers of recreation vehicles, conversion vans, and specialized work trucks are small businesses that alter completed vehicles or manufacture vehicles in two or more stages. While the number of these small businesses potentially affected by this proposal is substantial, the economic impact upon these entities will not be significant because this document proposes to limit certain existing requirements as they apply to multistage vehicles, and exclude a narrow group of multi-stage vehicles manufactured from chassis without occupant compartments from the same requirements. For other multistage manufacturers, recent agency action described above will enable the manufacturers to more fully utilize pass-through certification. C. National Environmental Policy Act NHTSA has analyzed this proposal for the purposes of the National Environmental Policy Act. The agency has determined that implementation of this action would not have any significant impact on the quality of the human environment. Accordingly, no environmental assessment is required. D. Executive Order 13132 (Federalism) The agency has analyzed this rulemaking in accordance with the principles and criteria contained in Executive Order 13132 and has determined that it does not have sufficient federal implications to warrant consultation with State and local officials or the preparation of a federalism summary impact statement. The proposal would not have any substantial impact on the States, or on the current Federal-State relationship, or on the current distribution of power and responsibilities among the various local officials. E. Unfunded Mandates Act The Unfunded Mandates Reform Act of 1995 requires agencies to prepare a written assessment of the costs, benefits and other effects of proposed or final rules that include a Federal mandate likely to result in the expenditure by State, local or tribal governments, in the aggregate, or by the private sector, of more than $100 million annually ($120.7 million as adjusted annually for inflation with base year of 1995). The assessment may be combined with other assessments, as it is here. This proposal is not likely to result in expenditures by State, local or tribal governments or automobile manufacturers and/or their suppliers of more than $120.7 million annually. If adopted, it would not impose any new burdens on manufacturers of vehicles built in two or more stages or vehicles alterers. Further, if adopted, this proposal would limit certain existing requirements as they apply to multistage vehicles, and exclude a narrow group of multi-stage vehicles manufactured from chassis without occupant compartments from the same requirements. F. Executive Order 12988 (Civil Justice Reform) Pursuant to Executive Order 12988, “Civil Justice Reform”, 26 the agency has considered whether this proposed rule would have any retroactive effect. We conclude that it would not have such an effect. Under 49 U.S.C. 30103, whenever a Federal motor vehicle safety standard is in effect, a State may not adopt or maintain a safety standard applicable to the same aspect of performance which is not identical to the Federal standard, except to the extent that the State requirement imposes a higher level of performance and applies only to vehicles procured for the State's use. 49 U.S.C. 30161 sets forth a procedure for judicial review of final rules establishing, amending, or revoking Federal motor vehicle safety standards. That section does not require submission of a petition for reconsideration or other administrative proceedings before parties may file a suit in court. 26 *See* 61 FR 4729, February 7, 1996. G. Paperwork Reduction Act There are no information collection requirements in this proposal. H. Regulation Identifier Number
(RIN)The Department of Transportation assigns a regulation identifier number
(RIN)to each regulatory action listed in the Unified Agenda of Federal Regulations. The Regulatory Information Service Center publishes the Unified Agenda in April and October of each year. You may use the RIN contained in the heading at the beginning of this document to find this action in the Unified Agenda. I. Plain Language Executive Order 12866 requires each agency to write all rules in plain language. Application of the principles of plain language includes consideration of the following questions: • Have we organized the material to suit the public's needs? • Are the requirements in the rule clearly stated? • Does the rule contain technical language or jargon that isn't clear? • Would a different format (grouping and order of sections, use of headings, paragraphing) make the rule easier to understand? • Would more (but shorter) sections be better? • Could we improve clarity by adding tables, lists, or diagrams? • What else could we do to make the rule easier to understand? If you have any responses to these questions, please include them in your comments on this proposal. J. Privacy Act Anyone is able to search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the **Federal Register** published on April 11, 2000 (Volume 65, Number 70; Pages 19477-78) or you may visit *http://dms.dot.gov.* IX. Proposed Regulatory Text List of Subjects in 49 CFR Part 571 Motor vehicle safety, Reporting and recordkeeping requirements, Tires. In consideration of the foregoing, NHTSA proposes to amend chapter V of title 49 of the Code of Federal Regulations by amending 49 CFR 571.201 to read as follows: PART 571—[AMENDED] 1. The authority citation of part 571 would continue to read as follows: Authority: 49 U.S.C. 322, 2011, 30115, 30166 and 30117; delegation of authority at 49 CFR 1.50. 2. Section 571.201 would be amended by revising S6.1.4, S6.3(b) and S6.3(c) to read as set forth below: § 571.201 Standard No. 201; Occupant protection in interior impact. S6.1.4 *Phase-in Schedule #4* A final stage manufacturer or alterer may, at its option, comply with the requirements set forth in S6.1.4.1 and S6.1.4.2. S6.1.4.1 Vehicles manufactured on or after September 1, 1998 and before September 1, 2008 are not required to comply with the requirements specified in S7. S6.1.4.2 Vehicles manufactured on or after September 1, 2008 shall comply with the requirements specified in S7. S6.3 * * *
(b)Any target located rearward of a vertical plane 600 mm behind the seating reference point of the rearmost designated seating position. For altered vehicles and vehicles built in two or more stages, including ambulances and motor homes, any target located rearward of a vertical plane 300 mm behind the seating reference point of the driver's designated seating position.
(c)Any target in a walk-in van-type vehicle or a vehicle manufactured in two or more stages that is delivered to a final stage manufacturer without an occupant compartment. Note: Motor homes, ambulances, and other vehicles manufactured using a chassis cab, a cut-away van, or any other incomplete vehicle delivered to a final stage manufacturer with a furnished front compartment are not excluded under this paragraph. Issued on April 18, 2006. Ronald L. Medford, Senior Associate Administrator for Vehicle Safety. [FR Doc. E6-6024 Filed 4-21-06; 8:45 am] BILLING CODE 4910-59-P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR PART 223 [I.D. 041706C] RIN 0648-AU10 Sea Turtle Conservation; Public Hearing Notification AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Notice of public hearing. SUMMARY: The National Marine Fisheries Service
(NMFS)is announcing its intent to hold a public hearing to inform interested parties of the proposed modifications to Federal regulations affecting pound net leaders in the Virginia Chesapeake Bay and to accept public comments on this action. DATES: NMFS will hold a public hearing at the Double Tree Hotel Virginia Beach, on Wednesday, April 26, 2006, at 7 p.m., eastern daylight time. ADDRESSES: The Double Tree Hotel Virginia Beach is located at 1900 Pavilion Drive, Virginia Beach, VA 23451 (ph..757-422-8900). Written comments on this action may be submitted on this proposed rule, identified by RIN 0648-AU10, by any one of the following methods:
(1)E-mail: *poundnetmodification@noaa.gov* . Please include the RIN 0648-AU10 in the subject line of the message.
(2)Federal eRulemaking Portal: *http://www.regulations.gov* . Follow the instruction on the website for submitting comments.
(3)NMFS/Northeast Region Website: *http://www.nero.noaa.gov/nero/regs/com.html* . Follow the instructions on the website for submitting comments.
(4)Mail: Mary Colligan, Assistant Regional Administrator for Protected Resources, NMFS, Northeast Region, One Blackburn Drive, Gloucester, MA 01930, ATTN: Sea Turtle Conservation Measures, Proposed Rule
(5)Facsimile (fax): 978-281-9394, ATTN: Sea Turtle Conservation Measures, Proposed Rule FOR FURTHER INFORMATION CONTACT: Pasquale Scida (ph. 978-281-9208), NMFS, One Blackburn Drive, Gloucester, MA 01930. SUPPLEMENTARY INFORMATION: A proposed rule was issued on April 17, 2006 (73 FR 19675), which proposes revisions to current regulations. The proposed rule would require any offshore pound net set in Pound Net Regulated Area I in the Virginia waters of the Chesapeake Bay to use a modified pound net leader from May 6 to July 15 each year. This action, taken under the Endangered Species Act of 1973 (ESA), responds to new information generated by gear research and aims to conserve sea turtles listed as threatened or endangered. Additional information on the justification for this action can be found in that proposed rule. NMFS recognizes the need and importance to obtain public comment on the proposed action. In addition to the April 26 meeting announced in this document, NMFS is accepting written comments on the proposed action. Written comments on the proposed rule or requests for copies of the literature cited, the draft Environmental Assessment, or Regulatory Impact Review and Initial Regulatory Flexibility Analysis should be addressed to the Assistant Regional Administrator for Protected Resources, NMFS, One Blackburn Drive, Gloucester, MA 01930. Comments and requests for supporting documents may be sent via fax to 978-281-9394. Comments will be accepted via email at poundnetmodification@noaa.gov and via the Federal eRulemaking Portal: *http://www.regulations.gov* . Follow the instruction on the website for submitting comments. The public comment period closes at 5 p.m., eastern daylight time, on May 1, 2006. In preparing the final rule for this action, NMFS will fully consider the public comments received during the 15-day comment period (either in writing or verbally during the public hearing). Special Accommodations This meeting is accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Pasquale Scida, telephone 978-281-3928 x9208, fax 978-281-9394, at least five days before the scheduled meeting date. Authority: 16 U.S.C. 1531 *et seq.* Dated: April 19, 2006. James H. Lecky, Director, Office Protected Resources, National Marine Fisheries Service. [FR Doc. E6-6106 Filed 4-21-06; 8:45 am] BILLING CODE 3510-22-S DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 229 [Docket No. 060330090-6090-01, I.D. 021506B] RIN 0648-AU19 List of Fisheries for 2006 AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Department of Commerce. ACTION: Proposed rule. SUMMARY: The National Marine Fisheries Service
(NMFS)is publishing the proposed List of Fisheries
(LOF)for 2006, as required by the Marine Mammal Protection Act (MMPA). The proposed LOF for 2006 reflects new information on interactions between commercial fisheries and marine mammals. NMFS must categorize each commercial fishery on the LOF into one of three categories under the MMPA based upon the level of serious injury and mortality of marine mammals that occurs incidental to each fishery. The categorization of a fishery in the LOF determines whether participants in that fishery are subject to certain provisions of the MMPA, such as registration, observer coverage, and take reduction plan requirements. DATES: Comments must be received by May 24, 2006. ADDRESSES: Send comments to Chief, Marine Mammal Conservation Division, Attn: List of Fisheries, Office of Protected Resources, NMFS, 1315 East-West Highway, Silver Spring, MD 20910. Comments may also be sent via email to *2006LOF.comments@noaa.gov* or to the Federal eRulemaking portal: *http://www.regulations.gov* (follow instructions for submitting comments). Comments regarding the burden-hour estimates, or any other aspect of the collection of information requirements contained in this proposed rule, should be submitted in writing to the Chief, Marine Mammal Conservation Division, Office of Protected Resources, NMFS, 1315 East-West Highway, Silver Spring, MD 20910 and to David Rostker, OMB, by e-mail at David_Rostker@omb.eop.gov or by fax to 202-395-7285. See SUPPLEMENTARY INFORMATION for a list of regional offices where registration information, materials, and marine mammal reporting forms may be obtained. FOR FURTHER INFORMATION CONTACT: Kristy Long, Office of Protected Resources, 301-713-1401; David Gouveia, Northeast Region, 978-281-9328; Juan Levesque, Southeast Region, 727-570-5312; Cathy Campbell, Southwest Region, 562-980-4060; Brent Norberg, Northwest Region, 206-526-6733; Bridget Mansfield, Alaska Region, 907-586-7642; Lisa Van Atta, Pacific Islands Region, 808-973-2937. Individuals who use a telecommunications device for the hearing impaired may call the Federal Information Relay Service at 1-800-877-8339 between 8 a.m. and 4 p.m. Eastern time, Monday through Friday, excluding Federal holidays. SUPPLEMENTARY INFORMATION: Regional Offices NMFS, Northeast Region, One Blackburn Drive, Gloucester, MA 01930-2298, Attn: Marcia Hobbs; NMFS, Southeast Region, 263 13th Avenue South, St. Petersburg, FL 33701, Attn: Teletha Mincey; NMFS, Southwest Region, Sustainable Fisheries Division, 501 W. Ocean Blvd., Suite 4200, Long Beach, CA 90802-4213, Attn: Lyle Enriquez; NMFS, Northwest Region, 7600 Sand Point Way NE, Seattle, WA 98115, Attn: Permits Office; NMFS, Alaska Region, Protected Resources, P.O. Box 22668, 709 West 9 th Street, Juneau, AK 99802; or NMFS, Pacific Islands Region, Protected Resources Division, 1601 Kapiolani Boulevard, Suite 1110, Honolulu, HI 96814-4700. What is the List of Fisheries? Section 118 of the MMPA requires that NMFS place all U.S. commercial fisheries into one of three categories based on the level of incidental serious injury and mortality of marine mammals that occurs in each fishery (16 U.S.C. 1387 (c)(1)). The categorization of a fishery in the LOF determines whether participants in that fishery may be required to comply with certain provisions of the MMPA, such as registration, observer coverage, and take reduction plan requirements. NMFS must reexamine the LOF annually, consider new information in the Stock Assessment Reports, other relevant sources, and the LOF, and publish in the **Federal Register** any necessary changes to the LOF after notice and opportunity for public comment (16 U.S.C. 1387 (c)(3)). How Does NMFS Determine in which Category a Fishery is Placed? The definitions for the fishery classification criteria can be found in the implementing regulations for section 118 of the MMPA (50 CFR 229.2). The criteria are also summarized here. Fishery Classification Criteria The fishery classification criteria consist of a two-tiered, stock-specific approach that first addresses the total impact of all fisheries on each marine mammal stock, and then addresses the impact of individual fisheries on each stock. This approach is based on consideration of the rate, in numbers of animals per year, of incidental mortalities and serious injuries of marine mammals due to commercial fishing operations relative to the Potential Biological Removal
(PBR)level for each marine mammal stock. The MMPA (16 U.S.C. 1362 (20)) defines the PBR level as the maximum number of animals, not including natural mortalities, that may be removed from a marine mammal stock while allowing that stock to reach or maintain its optimum sustainable population. This definition can also be found in the implementing regulations for section 118 at 50 CFR 229.2 *Tier 1:* If the total annual mortality and serious injury across all fisheries that interact with a stock is less than or equal to 10 percent of the PBR level of the stock, all fisheries interacting with the stock would be placed in Category III. Otherwise, these fisheries are subject to the next tier (Tier 2) of analysis to determine their classification. *Tier 2, Category I:* Annual mortality and serious injury of a stock in a given fishery is greater than or equal to 50 percent of the PBR level. *Tier 2, Category II:* Annual mortality and serious injury of a stock in a given fishery is greater than 1 percent and less than 50 percent of the PBR level. *Tier 2, Category III:* Annual mortality and serious injury of a stock in a given fishery is less than or equal to 1 percent of the PBR level. While Tier 1 considers the cumulative fishery mortality and serious injury for a particular stock, Tier 2 considers fishery-specific mortality and serious injury for a particular stock. Additional details regarding how the categories were determined are provided in the preamble to the final rule implementing section 118 of the MMPA (60 FR 45086, August 30, 1995). Since fisheries are categorized on a per-stock basis, a fishery may qualify as one Category for one marine mammal stock and another Category for a different marine mammal stock. A fishery is typically categorized on the LOF at its highest level of classification (e.g., a fishery that qualifies for Category III for one marine mammal stock and for Category II for another marine mammal stock will be listed under Category II). Other Criteria That May Be Considered In the absence of reliable information indicating the frequency of incidental mortality and serious injury of marine mammals by a commercial fishery, NMFS will determine whether the incidental serious injury or mortality qualifies for Category II by evaluating other factors such as fishing techniques, gear used, methods used to deter marine mammals, target species, seasons and areas fished, qualitative data from logbooks or fisher reports, stranding data, and the species and distribution of marine mammals in the area, or at the discretion of the Assistant Administrator for Fisheries (50 CFR 229.2). How Do I Find Out if a Specific Fishery is in Category I, II, or III? This proposed rule includes two tables that list all U.S. commercial fisheries by LOF Category. Table 1 lists all of the fisheries in the Pacific Ocean (including Alaska). Table 2 lists all of the fisheries in the Atlantic Ocean, Gulf of Mexico, and Caribbean. Am I Required to Register Under the MMPA? Owners of vessels or gear engaging in a Category I or II fishery are required under the MMPA (16 U.S.C. 1387(c)(2)), as described in 50 CFR 229.4, to register with NMFS and obtain a marine mammal authorization from NMFS in order to lawfully incidentally take a marine mammal in a commercial fishery. Owners of vessels or gear engaged in a Category III fishery are not required to register with NMFS or obtain a marine mammal authorization. How Do I Register? Fishers must register with the Marine Mammal Authorization Program
(MMAP)by contacting the relevant NMFS Regional Office (see ADDRESSES ) unless they participate in a fishery that has an integrated registration program (described below). Upon receipt of a completed registration, NMFS will issue vessel or gear owners physical evidence of a current and valid registration that must be displayed or in the possession of the master of each vessel while fishing in accordance with section 118 of the MMPA (16 U.S.C. 1387(c)(3)(A)). What is the Process for Registering in an Integrated Fishery? For some fisheries, NMFS has integrated the MMPA registration process with existing state and Federal fishery license, registration, or permit systems and related programs. Participants in these fisheries are automatically registered under the MMPA and are not required to submit registration or renewal materials or pay the $25 registration fee. The following is a list of integrated fisheries and a summary of the integration process for each Region. Fishers who operate in an integrated fishery and have not received registration materials should contact their NMFS Regional Office (see ADDRESSES ). Which Fisheries Have Integrated Registration Programs? The following fisheries have integrated registration programs under the MMPA: 1. All Alaska Category II fisheries; 2. All Washington and Oregon Category II fisheries; 3. Northeast Regional fisheries for which a state or Federal permit is required. Individuals fishing in fisheries for which no state or Federal permit is required must register with NMFS by contacting the Northeast Regional Office (see ADDRESSES ); and 4. Southeast Regional fisheries for which a state or Federal permit is required. Southeast Regional fisheries include all North Carolina, South Carolina, Georgia, Florida, Alabama, Mississippi, Louisiana, Texas, and Puerto Rico fisheries. Individuals fishing in fisheries for which no state or Federal permit is required, must register with NMFS by contacting the Southeast Regional Office (see ADDRESSES ). 5. The Hawaii Swordfish, Tuna, Billfish, Mahi Mahi, Wahoo, Oceanic Sharks Longline/Set line Fishery. How Do I Renew My Registration Under the MMPA? Regional Offices, except for the Northeast and Southeast Regions, annually send renewal packets to participants in Category I or II fisheries that have previously registered; however, it is the responsibility of the fisher to ensure that registration or renewal forms are completed and submitted to NMFS at least 30 days in advance of fishing. Individuals who have not received a renewal packet by January 1 or are registering for the first time should request a registration form from the appropriate Regional Office (see ADDRESSES ). Am I Required to Submit Reports When I Injure or Kill a Marine Mammal During the Course of Commercial Fishing Operations? In accordance with the MMPA (16 U.S.C. 1387(e)) and 50 CFR 229.6, any vessel owner or operator, or fisher (in the case of non-vessel fisheries), participating in a Category I, II, or III fishery must report all incidental injuries or mortalities of marine mammals that occur during commercial fishing operations to NMFS. “Injury” is defined in 50 CFR 229.2 as a wound or other physical harm. In addition, any animal that ingests fishing gear or any animal that is released with fishing gear entangling, trailing, or perforating any part of the body is considered injured, regardless of the absence of any wound or other evidence of an injury, and must be reported. Instructions on how to submit reports can be found in 50 CFR 229.6. Am I Required to Take an Observer Aboard My Vessel? Fishers participating in a Category I or II fishery are required to accommodate an observer aboard vessel(s) upon request. Observer requirements can be found in 50 CFR 229.7. Am I Required to Comply With Any Take Reduction Plan Regulations? Fishers participating in a Category I or II fishery are required to comply with any applicable take reduction plans. Sources of Information Reviewed for the Proposed 2006 LOF NMFS reviewed the marine mammal incidental serious injury and mortality information presented in the Stock Assessment Reports
(SARs)for all observed fisheries to determine whether changes in fishery classification were warranted. NMFS' SARs are based on the best scientific information available at the time of preparation for the information presented in the SARs, including the level of serious injury and mortality of marine mammals that occurs incidental to commercial fisheries and the PBR levels of marine mammal stocks. NMFS also reviewed other sources of new information, including marine mammal stranding data, observer program data, fisher self-reports, and other information that is not included in the SARs. The information contained in the SARs is reviewed by regional scientific review groups
(SRGs)representing Alaska, the Pacific (including Hawaii), and the U.S. Atlantic, Gulf of Mexico, and Caribbean. The SRGs were created by the MMPA to review the science that informs the SARs, and to advise NMFS on population status and trends, stock structure, uncertainties in the science, research needs, and other issues. The proposed LOF for 2006 was based, among other things, on information provided in the final SARs for 1996 (63 FR 60, January 2, 1998), the final SARs for 2001 (67 FR 10671, March 8, 2002), the final SARs for 2002 (68 FR 17920, April 14, 2003), the final SARs for 2003 (69 FR 54262, September 8, 2004), the final SARs for 2004 (70 FR 35397, June 20, 2005), and the draft SARs for 2005 (70 FR 37091, June 28, 2005). Summary of Changes to the Proposed LOF for 2006 The following summarizes changes in fishery classification including fisheries listed on the LOF, the number of participants in a particular fishery, and the species and/or stocks that are incidentally killed or seriously injured in a particular fishery that are proposed for the 2006 LOF. The placement and definitions of U.S. commercial fisheries proposed for 2006 are identical to those provided in the LOF for 2005 with the exceptions provided below. Commercial Fisheries in the Pacific Ocean: Fishery Classification NMFS proposes to reclassify the AK Bering Sea and Aleutian Islands Greenland turbot longline fishery from Category II to Category III. The 2005 LOF reclassified this fishery based on a mortality of a killer whale (stock unknown) that occurred in 1999. This observed mortality extrapolated to an estimated mortality level of 3 animals in 1999, and a 5-year average of 0.6 killer whales per year for 1999-2003. In 2004, there were no serious injuries or mortalities of this species in the Greenland turbot longline fishery. When possible, fishery classifications are based on the most recent 5 years of data for a commercial fishery. Thus for the years 2000-2004, the 5-year average level of serious injury and mortality of killer whales incidental to this fishery is zero. This fishery is regularly observed by the Alaska Fisheries Science Center North Pacific Groundfish Observer Program and NMFS expects that future serious injuries and mortalities of killer whales would be detected by the program. Therefore, NMFS proposes to reclassify this fishery from Category II to Category III. NMFS proposes to reclassify the CA sardine purse seine fishery from Category III to Category II. This fishery includes all vessels using purse seine gear to target sardine off of the coast of California. Most fishing occurs off of southern California, and occurs year-round. Fishing within 3 nautical miles of shore is prohibited by state law. NMFS began placing observers onboard CA sardine purse seine vessels in 2004 to collect information regarding the fishery's potential to interact with marine mammals. Observers have documented entanglements of California sea lions in this fishery. In addition, this fishery uses similar gear and fishing techniques to other Category II purse seine fisheries (e.g., CA anchovy) known to seriously injure or kill marine mammals. Therefore, NMFS is proposing to reclassify this fishery to Category II based on analogy as provided in 50 CFR 229.2. Addition of Fisheries to the LOF NMFS proposes to add the “American Samoa longline fishery” to the LOF as a Category III fishery. The fishery has 138 participants. There are no documented marine mammal injuries or mortalities incidental to this fishery. NMFS is initiating a fishery observer program in this fishery in early 2006 and will reevaluate this fishery's classification when new information becomes available. NMFS proposes to add the “Western Pacific squid jig fishery” to the LOF as a Category III fishery. There are no documented marine mammal serious injuries or mortalities incidental to this fishery. The fishery has 6 participants. This fishery is a Japanese-style jig fishery that operates at night by attracting squid with a light source. In the U.S. Pacific squid jigging fishery, bycatch of marine mammals is purported to be extremely small; if marine mammals are hooked, they would break the relatively weak squid lines before being brought to the boat. A similar fishery operates in the waters near Southern Australia. A draft Bycatch Action Plan was prepared for this fishery by the Australian Fisheries Management Authority in 2003. The report states that a “global assessment of bycatch and discards across world fisheries found that squid jigging is a highly selective fishing method”. Because of the high selectivity of this fishery and a lack of reliable information regarding marine mammal bycatch in this fishery, NMFS proposes to add this fishery to the LOF in Category III. NMFS proposes to add the “HI Kona crab loop net fishery” with 42 participants to the LOF as a Category III fishery. The fishery is conducted using baited loop nets above sandy substrate and is constantly tended by fishers. No marine mammal injuries or mortalities in this fishery have been documented. Therefore, NMFS proposes to add this fishery as a Category III fishery. NMFS proposes to add the “HI offshore pen culture fishery” to the LOF as a Category III fishery. The fishery has 2 participants. There have been no documented marine mammal serious injuries or mortalities incidental to this fishery. NMFS proposes to add the “CA marine shellfish aquaculture fishery” to the LOF as a Category III fishery. This fishery includes a variety of target species and gear types including: clams (cultured either via ground or bag culture), oysters (cultured via bag, rack and bag, longline, stake, bottom culture, or suspended culture), scallops (cultured via offshore tray-based systems), and mussels (cultured via suspension from rafts or surface longlines in the subtidal zone). NMFS does not currently have any information regarding the number of participants in this fishery and there have been no documented marine mammal serious injuries or mortalities incidental to this fishery. NMFS proposes to add the “CA white seabass enhancement net pen fishery” to the LOF as a Category III fishery. The fishery consists of a total of 13 enhancement net pens from Santa Barbara to San Diego, CA that are used as grow-out facilities for juvenile white seabass before release. The pens consist of large, supported nets or fiberglass raceways. The raceways are large rectangular fiberglass structures with open ends covered by steel mesh and steel predator barriers. The pens vary in depth from 4-5 ft (1.22-1.52 m) and accommodate 2,000 to 5,000 fish. There have been two observed mortalities of the U.S. stock of California sea lions in this fishery. There are 13 participants in this fishery as each pen represents a participant. Removal of Fisheries from the LOF NMFS proposes to remove the “HI net unclassified fishery” from the LOF. Since implementation of new and revised reporting forms, fishers report specific net gear used. Therefore, this fishery as currently listed on the LOF is no longer appropriate. Fishery Name and Organizational Changes and Clarifications NMFS proposes to modify the name of the “HI tuna fishery” to the “HI tuna handline fishery” to better reflect the gear type used in this fishery. NMFS proposes to modify the name of the “HI deep sea bottomfish fishery” to the “HI Main Hawaiian Islands and Northwest Hawaiian Islands deep sea bottomfish fishery”. NMFS proposes to modify the name of the “HI coral diving fishery” to the “HI black coral diving fishery” to represent the target species in this fishery. NMFS proposes to modify the name of the “HI other fishery” to the “HI charter vessel fishery”. Number of Vessels/Persons NMFS proposes to update the estimated number of participants in the Hawaii gillnet fishery from 115 to 35. NMFS proposes to update the estimated number of participants in the Hawaii opelu/akule net fishery from 16 to 12. NMFS proposes to update the estimated number of participants in the Hawaii purse seine fishery from 18 to 23. NMFS proposes to update the estimated number of participants in the Hawaii fish pond fishery to N/A as the fishery is currently not operating. NMFS is retaining this fishery on the LOF as there may be participants in the near future. NMFS proposes to update the estimated number of participants in the Hawaii throw net, cast net fishery from 47 to 14. NMFS proposes to update the estimated number of participants in the Hawaii trolling, rod and reel fishery from 1,795 to 1,321. NMFS proposes to update the estimated number of participants in the Hawaii lobster trap fishery to 0 as the fishery is currently inactive. However, 14 permits are available if this fishery reopened. NMFS proposes to update the number of participants in the Hawaii aku boat, pole and line fishery from 54 to 4. NMFS proposes to update the number of participants in the Hawaii inshore handline fishery from 650 to 307. NMFS proposes to update the number of participants in the Hawaii tuna handline fishery (proposed name change from the “Hawaii tuna” fishery, see Fishery Name and Organizational Changes and Clarifications section) from 144 to 298. NMFS proposes to update the number of participants in the HI main Hawaiian Islands and Northwest Hawaiian Islands deep sea bottomfish fishery (proposed name change from the “HI deep sea bottomfish fishery”, see Fishery Name and Organizational Changes and Clarifications section) from 434 to 387. NMFS proposes to update the number of participants in the HI black coral diving fishery (proposed name change from the “HI coral diving fishery”, see Fishery Name and Organizational Changes and Clarifications section) from 2 to 1. NMFS proposes to update the number of participants in the HI handpick fishery from 135 to 37. NMFS proposes to update the number of participants in the HI lobster diving fishery from 6 to 19. NMFS proposes to update the number of participants in the HI squiding, spear fishery from 267 to 91. NMFS proposes to update the number of participants on the AK BSAI Greenland turbot longline fishery from 36 to 12. List of Species That are Incidentally Injured or Killed NMFS proposes to add common dolphins to the list of marine mammal species and stocks incidentally injured or killed by the California squid purse seine fishery. An observer documented a mortality of a common dolphin (stock unknown) in 2005. NMFS proposes to add the Hawaiian stocks of Blaineville's beaked whales and Pantropical spotted dolphins to the list of marine mammal species and stocks incidentally injured or killed by the Hawaii swordfish, tuna, billfish, mahi mahi, wahoo, and oceanic sharks longline/set line fishery. Serious injuries and mortalities of these stocks incidental to this fishery were documented by fisheries observers. NMFS proposes to delete the Hawaiian stock of bottlenose dolphins from the list of marine mammal species and stocks incidentally injured or killed by the Hawaii inshore handline fishery as no interactions have been documented between this stock and the fishery within the last 5 years. NMFS proposes to delete the Hawaiian stocks of bottlenose dolphins and rough tooth dolphins from the list of marine mammal species and stocks incidentally injured or killed by the Hawaii tuna handline fishery (proposed name change from “Hawaii tuna fishery”, see Fishery Name and Organizational Changes and Clarifications section) as no interactions have been documented between these stocks and this fishery within the last 5 years. NMFS proposes to correct some errors in the list of marine mammal species and stocks incidentally injured or killed incidental to the CA/OR thresher shark/swordfish drift gillnet fishery. Specifically, NMFS proposes to change the CA/OR/WA Pacific coast stock to the Eastern North Pacific offshore stock of killer whales and the CA/OR/WA stock to the CA stock of long-beaked common dolphins. Additionally, NMFS proposes to combine the Northern and Southern species of Pacific white-sided dolphins to reflect how these species are currently characterized in the SARs. NMFS proposes to correct some errors in the list of marine mammal species and stocks incidentally injured or killed incidental to the WA, OR, CA groundfish trawl fishery. Specifically, NMFS proposes to change the Central North Pacific stock to the CA/OR/WA stock of Pacific white-sided dolphins and the Western stock to the Eastern stock of Steller sea lions. Alaska Fisheries The 2004 LOF revised the Federally managed fisheries in Alaska into more discrete fisheries according to area, gear, and target species in order to more accurately reflect the fisheries as managed under Federal Fishery Management Plans. At that time, the marine mammal stocks associated with the newly delineated fisheries in the LOF were not revised accordingly. NMFS proposes to include the following marine mammal stocks that have had documented injuries or mortalities in the following Federal fisheries as listed in this proposed rule. NMFS proposes to add the Eastern North Pacific stock of Northern fur seals, the Bering Sea stocks of harbor porpoise and harbor seals, and the Alaska stocks of bearded seals, spotted seals, and walruses to the list of marine mammal species and stocks injured or killed incidental to the AK BSAI flatfish trawl fishery. NMFS proposes to add the Bering Sea stock of harbor seals and the Alaska stocks of Dall's porpoise, minke whales, ribbon seals, and spotted seals to the list of marine mammal species and stocks injured or killed incidental to the AK BSAI pollock trawl fishery. NMFS proposes to add the Alaska stock of ribbon seals and the Western U.S. stock of Steller sea lions to the list of marine mammal species and stocks injured or killed incidental to the AK BSAI Pacific cod longline fishery. NMFS proposes to add the Eastern U.S. stock of Steller sea lions and the North Pacific stock of sperm whales to the list of marine mammal species and stocks injured or killed incidental to the AK GOA sablefish longline fishery. NMFS proposes to add the Western U.S. stock of Steller sea lions and the Bering Sea stock of harbor seals to the list of marine mammal species and stocks injured or killed incidental to the AK BSAI Pacific cod trawl fishery. NMFS proposes to add the Western U.S. stock of Steller sea lions to the list of marine mammal species and stocks injured or killed incidental to the AK GOA Pacific cod trawl fishery. NMFS proposes to add the Western U.S. stock of Steller sea lions, the Northeast Pacific stock of fin whales, and the North Pacific stock of Northern elephant seals to the list of marine mammal species and stocks injured or killed incidental to the AK GOA pollock trawl fishery. NMFS proposes to add the GOA stock of harbor seals to the list of marine mammal species and stocks injured or killed incidental to the AK GOA Pacific cod pot fishery. NMFS proposes to add the Eastern and Western U.S. stocks of Steller sea lions and an unknown stock of killer whales to the list of marine mammal species and stocks injured or killed incidental to the AK, WA, OR, CA commercial passenger fishing vessel fishery. NMFS proposes to add the Central North Pacific (Southeast AK) stock of humpback whales to the list of marine mammal species and stocks injured or killed incidental to the AK Southeast Alaska crab pot fishery. NMFS proposes to add the Central North Pacific (Southeast AK) stock of humpback whales to the list of marine mammal species and stocks injured or killed incidental to the AK Southeast Alaska shrimp pot fishery. NMFS proposes to add the Central North Pacific (Southeast AK) stock of humpback whales to the list of marine mammal species and stocks injured or killed incidental to the AK Yakutat salmon set gillnet fishery. NMFS proposes to add the Western U.S. stock of Steller sea lions to the list of marine mammal species and stocks injured or killed incidental to the AK Kodiak salmon set gillnet fishery. NMFS proposes to delete the Eastern North Pacific transient stock of killer whales from the list of marine mammals species and stocks injured or killed in the Alaska BSAI flatfish trawl fishery. Because NMFS did not have information regarding which stock was injured or killed incidental to this fishery, both the Eastern North Pacific transient and resident stocks of killer whales were listed in the 2005 LOF as interacting with this fishery. However, since publication of the 2005 LOF, NMFS has obtained the results of genetic analysis on the biopsy samples taken from killer whales seriously injured or killed in this fishery. The results indicate that the fishery interacted with the resident stock of Eastern North Pacific killer whales. Therefore, NMFS proposes to remove the stock (transient) that did not interact with this fishery. NMFS proposes to delete the Eastern North Pacific resident stock of killer whales from the list of marine mammals species and stocks incidentally injured or killed in the Alaska BSAI pollock trawl fishery. Because NMFS did not have information regarding which stock was injured or killed incidental to this fishery, both the Eastern North Pacific transient and resident stocks of killer whales were listed in the 2005 LOF as interacting with this fishery. However, since publication of the 2005 LOF, NMFS has obtained the results of genetic analysis on the biopsy samples taken from killer whales seriously injured or killed in this fishery. These results indicate that the fishery interacted with the transient stock of Eastern North Pacific killer whales. Therefore, NMFS proposes to remove the stock (resident) that did not interact with this fishery. Commercial Fisheries in the Atlantic Ocean, Gulf of Mexico, and Caribbean: Fishery Classification NMFS proposes to reclassify the Chesapeake Bay inshore gillnet fishery from Category III to Category II based on its potential to seriously injure or kill the Western North Atlantic stock of bottlenose dolphins. Bottlenose dolphins are known to use the entire Chesapeake Bay, including waters landward of the Chesapeake Bay Bridge-Tunnel. Since the Chesapeake Bay inshore gillnet fishery is currently a Category III fishery, observer coverage is not required; therefore, no marine mammal interactions with this fishery have been documented. However, serious injuries and mortalities of the Western North Atlantic stock of bottlenose dolphins have been documented in similar gillnet fisheries in the Mid-Atlantic, such as the Mid-Atlantic gillnet fishery and the North Carolina inshore gillnet fishery, both of which are currently Category II fisheries. Reclassifying the Chesapeake Bay inshore gillnet fishery to Category II will allow NMFS to characterize marine mammal interactions with this fishery through the observer program. Based on the potential overlap in distribution of the Western North Atlantic stock of bottlenose dolphins and this fishery, in addition to documented serious injuries and mortalities in similar gillnet gear, NMFS proposes to reclassify this fishery to Category II based on analogy as provided in 50 CFR 229.2. NMFS proposes to reclassify the Mid-Atlantic menhaden purse seine fishery from Category III to Category II based on its potential to seriously injure or kill the Western North Atlantic stock of bottlenose dolphins. Since this fishery is currently a Category III fishery, observer coverage is not required; therefore, no marine mammal interactions with this fishery have been documented. However, according to the most recent stock assessment of the Western North Atlantic stock of bottlenose dolphins, menhaden purse seiners have reported annual interactions of one to five bottlenose dolphins. In addition, the Gulf of Mexico menhaden purse seine fishery is classified as a Category II fishery based on documented bycatch of several bottlenose dolphin stocks, including the Northern, Eastern, and Western Gulf of Mexico coastal stocks, and the Gulf of Mexico bay, sound, and estuarine stock. Elevating this fishery to Category II will allow NMFS to characterize marine mammal interactions with this fishery through the observer program. Based on documented bycatch of bottlenose dolphins in purse seine gear, NMFS proposes to reclassify this fishery in Category II. Addition of Fisheries to the LOF NMFS proposes to add the “Southeast Atlantic inshore gillnet fishery” to the LOF as a Category III fishery. This fishery typically targets shad and river herring in inshore rivers and bays (inside the COLREGS lines). Despite the lack of adequate observer coverage in this fishery, NMFS has no evidence to suggest that there is more than a remote likelihood of marine mammal serious injuries or mortalities incidental to this fishery. The number of participants in this fishery is unknown. List of Species That are Incidentally Injured or Killed NMFS proposes to remove the Western North Atlantic stock of fin whales from the list of marine mammal species and stocks incidentally injured or killed incidental to the Mid-Atlantic gillnet fishery. NMFS added this stock in the 2005 LOF and has since confirmed that the NMFS observer program does not have a documented interaction between this stock and this fishery. NMFS proposes to add several bottlenose dolphin stocks to the list of marine mammal species and stocks incidentally injured or killed incidental to the Atlantic Ocean, Gulf of Mexico, Caribbean commercial passenger fishing vessel fishery based on anecdotal reports of dolphins interacting with hook and line gear in both the Atlantic and Gulf of Mexico. These bottlenose dolphin stocks include the Western North Atlantic coastal, Eastern Gulf of Mexico coastal, Northern Gulf of Mexico coastal, and Western Gulf of Mexico coastal. NMFS proposes to remove the Western North Atlantic offshore stock of bottlenose dolphins and the Western North Atlantic stock of striped dolphins from the list of marine mammal species and stocks injured or killed incidental to the Northeast bottom trawl fishery because NMFS has not documented any serious injuries or mortalities of these stocks incidental to this fishery in the past 5 years. Fishery Name and Organizational Changes and Clarifications Southeast Atlantic Gillnet Fishery NMFS proposes to expand the list of target species associated with the “Southeast Atlantic gillnet fishery”. In the 2001 LOF (66 FR 42780, August 15, 2001), NMFS renamed all southeastern Atlantic gillnet fisheries (except the Southeastern U.S. Atlantic shark gillnet fishery) as the “Southeast Atlantic gillnet fishery”, and elevated this fishery from Category III to Category II. This fishery designation included fisheries identified in previous LOFs as the “Florida East Coast pelagics king and Spanish mackerel gillnet fishery” and the “Southeast U.S. Atlantic coastal shad, sturgeon gillnet fishery”. In 2006, NMFS received information from the Florida Fish and Wildlife Commission's trip ticket database that landings from 2002-2005 using gillnet gear on the east coast of Florida also include landings of whiting, bluefish, pompano, spot, croaker, little tunny, bonita, jack crevalle, and cobia, in addition to king and Spanish mackerel and shad. These species are targeted using both pelagic and demersal gillnet gear, each of which poses similar risks of entanglement to marine mammals. Therefore, NMFS proposes to expand the list of fish species associated with the “Southeast Atlantic gillnet fishery” to include the following target species: king mackerel, Spanish mackerel, whiting, bluefish, pompano, spot, croaker, little tunny, bonita, jack crevalle, and cobia. Atlantic sturgeon are listed as a species of concern under the Endangered Species Act and are also managed under a fishery management plan; a moratorium on possession and harvest of this species currently exists throughout the U.S. East Coast. Additionally, fishing for shad in ocean waters is prohibited by Southeast coastal states and is therefore no longer included as a target species of the Southeast Atlantic gillnet fishery. List of Fisheries The following two tables list U.S. commercial fisheries according to their assigned categories under section 118 of the MMPA. The estimated number of vessels/participants is expressed in terms of the number of active participants in the fishery, when possible. If this information is not available, the estimated number of vessels or persons licensed for a particular fishery is provided. If no recent information is available on the number of participants in a fishery, the number from the most recent LOF is used. The tables also list the marine mammal species and stocks that are incidentally killed or injured in each fishery based on observer data, logbook data, stranding reports, and fisher reports. This list includes all species or stocks known to experience injury or mortality in a given fishery, but also includes species or stocks for which there are anecdotal records of interaction. Additionally, species identified by logbook entries may not be verified. Not all species or stocks identified are the reason for a fishery's placement in a given category. NMFS has designated those stocks that are responsible for a current fishery's classification by a “ 1 ”. There are several fisheries classified in Category II that have no recently documented interactions with marine mammals. Justifications for placement of these fisheries are by analogy to other gear types that are known to cause mortality or serious injury of marine mammals, as discussed in the final LOF for 1996 (60 FR 67063, December 28, 1995), and according to factors listed in the definition of a “Category II fishery” in 50 CFR 229.2. NMFS has designated those fisheries originally listed by analogy in Tables 1 and 2 by a “2” after that fishery's name. Table 1 lists commercial fisheries in the Pacific Ocean (including Alaska); Table 2 lists commercial fisheries in the Atlantic Ocean, Gulf of Mexico, and Caribbean. BILLING CODE 3510-22-S EP24AP06.000 EP24AP06.001 EP24AP06.002 EP24AP06.003 EP24AP06.004 EP24AP06.005 EP24AP06.006 EP24AP06.007 EP24AP06.008 EP24AP06.009 EP24AP06.010 EP24AP06.011 EP24AP06.012 EP24AP06.013 EP24AP06.014 EP24AP06.015 EP24AP06.016 EP24AP06.017 BILLING CODE 3510-22-C Classification The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration that this proposed rule would not have a significant economic impact on a substantial number of small entities. For convenience, the factual basis leading to the certification is repeated below. Under existing regulations, all fishers participating in Category I or II fisheries must register under the MMPA, obtain an Authorization Certificate, and pay a fee of $25. Additionally, fishers may be subject to a take reduction plan and requested to carry an observer. The Authorization Certificate authorizes the taking of marine mammals incidental to commercial fishing operations. NMFS has estimated that approximately 41,730 fishing vessels, most of which are small entities, operate in Category I or II fisheries, and therefore, are required to register. However, registration has been integrated with existing state or Federal registration programs for the majority of these fisheries so that the majority of fishers do not need to register separately under the MMPA. Currently, approximately 500 fishers register directly with NMFS under the MMPA authorization program. Though this proposed rule would affect approximately 500 small entities, the $25 registration fee, with respect to anticipated revenues, is not considered a significant economic impact. If a vessel is requested to carry an observer, fishers will not incur any economic costs associated with carrying that observer. As a result of this certification, an initial regulatory flexibility analysis was not prepared. In the event that reclassification of a fishery to Category I or II results in a take reduction plan, economic analyses of the effects of that plan will be summarized in subsequent rulemaking actions. Further, if a vessel is requested to carry an observer, fishers will not incur any economic costs associated with carrying that observer. This proposed rule contains collection-of-information requirements subject to the Paperwork Reduction Act. The collection of information for the registration of fishers under the MMPA has been approved by the Office of Management and Budget
(OMB)under OMB control number 0648-0293 (0.15 hours per report for new registrants and 0.09 hours per report for renewals). The requirement for reporting marine mammal injuries or moralities has been approved by OMB under OMB control number 0648-0292 (0.15 hours per report). These estimates include the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. Send comments regarding these reporting burden estimates or any other aspect of the collections of information, including suggestions for reducing burden, to NMFS and OMB (see ADDRESSES ). Notwithstanding any other provision of law, no person is required to respond to nor shall a person be subject to a penalty for failure to comply with a collection of information subject to the requirements of the Paperwork Reduction Act unless that collection of information displays a currently valid OMB control number. This proposed rule has been determined to be not significant for the purposes of Executive Order 12866. An environmental assessment
(EA)was prepared under the National Environmental Policy Act
(NEPA)for regulations to implement section 118 of the MMPA (1995 EA). NMFS revised that EA relative to classifying U.S. commercial fisheries on the LOF in December 2005. Both the 1995 and 2005 EA concluded that implementation of MMPA section 118 regulations would not have a significant impact on the human environment. This proposed rule would not make any significant change in the management of reclassified fisheries, and therefore, this proposed rule is not expected to change the analysis or conclusion of the 2005 EA. If NMFS takes a management action, for example, through the development of a Take Reduction Plan (TRP), NMFS will first prepare an environmental document, as required under NEPA, specific to that action. This proposed rule would not affect species listed as threatened or endangered under the Endangered Species Act
(ESA)or their associated critical habitat. The impacts of numerous fisheries have been analyzed in various biological opinions, and this proposed rule will not affect the conclusions of those opinions. The classification of fisheries on the LOF is not considered to be a management action that would adversely affect threatened or endangered species. If NMFS takes a management action, for example, through the development of a TRP, NMFS would conduct consultation under ESA section 7 for that action. This proposed rule would have no adverse impacts on marine mammals and may have a positive impact on marine mammals by improving knowledge of marine mammals and the fisheries interacting with marine mammals through information collected from observer programs or take reduction teams. This proposed rule would not affect the land or water uses or natural resources of the coastal zone, as specified under section 307 of the Coastal Zone Management Act. Dated: April 18, 2006. John Oliver, Deputy Assistant Administrator for Operations, national Marine Fisheries Service. [FR Doc. 06-3838 Filed 4-21-06; 8:45 am]
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- 49 CFR 571
- 49 CFR 571.201
- 49 CFR 568
- 49 CFR 553.21
- 49 CFR 512
- 49 CFR 1.50
- 50 CFR 223
- 50 CFR 229
- 50 CFR 229.2
- 50 CFR 229.4
- 50 CFR 229.6
- 50 CFR 229.7
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