This action, pursuant to 5 U.S.C. 553, proposes an amendment to regulations issued to carry out a marketing order as defined in 7 CFR 900.2(j). This proposed rule is issued under Marketing Agreement No. 125 and Order No. 966, as amended (7 CFR part 966), regulating the handling of tomatoes grown in Florida. Part 966 (referred to as the “Order”) is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.” The Committee locally administers the Order and is comprised of producers operating within the production area.

The Department of Agriculture (USDA) is issuing this proposed rule in conformance with Executive Orders 13563 and 13175. This action falls within a category of regulatory actions that the Office of Management and Budget (OMB) exempted from Executive Order 12866 review. Additionally, because this proposed rule does not meet the definition of a significant regulatory action, it does not trigger the requirements contained in Executive Order 13771. See OMB's Memorandum titled “Interim Guidance Implementing Section 2 of the Executive Order of January 30, 2017, titled `Reducing Regulation and Controlling Regulatory Costs' ” (February 2, 2017).

This proposed rule has been reviewed under Executive Order 12988, Civil Justice Reform. This proposed rule is not intended to have retroactive effect.

The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 608c(15)(A) of the Act, any handler subject to an order may file with USDA a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with law and request a modification of the order or to be exempted therefrom. A handler is afforded the opportunity for a hearing on the petition. After the hearing, USDA would rule on the petition. The Act provides that the district court of the United States in any district in which the handler is an inhabitant, or has his or her principal place of business, has jurisdiction to review USDA's ruling on the petition, provided an action is filed not later than 20 days after the date of the entry of the ruling.

This proposed rule invites comments on eliminating the standard weight certification requirement established under the Order for the 2019-20 and subsequent fiscal periods. This action would reduce time and costs associated with tomato inspection at handling facilities. The Committee unanimously approved this recommendation at public meetings held on August 24, 2018, and on September 6, 2018.

Section 966.52 of the Order provides authority to the Committee to establish pack and container requirements for tomatoes grown within the regulated area. This includes fixing the size, weight, capacity, dimensions, markings, or pack of the container which may be used in the packaging, transportation, sale, shipment, or other handling of tomatoes.

Section 966.323 sets forth the handling regulations for Florida tomatoes. Section 966.323(a)(3)(i) designates the container requirements for weight and that Section 51.1863 of the U.S. Tomato Standards (7 CFR 51.1863), which specifies the standard weight requirement, shall apply to all containers.

Section 966.60 requires Florida tomatoes to be inspected and certified by authorized representatives of the Federal or Federal-State Inspection Service (FSIS), or such other inspection service as the Secretary shall designate. The Florida Department of Agriculture and Consumer Services is an agency employing state workers who collaborate with the USDA to provide inspection services to areas not serviced by federal employees. FSIS currently certifies to standard weight as part of the inspection process.

The Committee met on August 24, 2018, and on September 6, 2018, to discuss current standard weight procedures and compliance with the standard weight certification requirements. Representatives from USDA's Specialty Crop Inspection Division (SCI) and from FSIS were present to participate in the discussion. These representatives informed Committee members that some handling facilities were not maintaining compliance with the standard weight certification requirements.

The current inspection sampling rate for standard weight certification is 36 containers sampled based on a lot size of 1600 containers. FSIS currently samples eight tomato containers from each lot for grade and size inspection, and these containers are also weighed as part of the sampling for standard weight. In order to comply with standard weight certification procedures, an additional 28 containers need to be weighed. To lower the inspection time and cost, many tomato handlers provide an employee to sample and weigh the additional 28 containers to reach the total 36 samples required for the standard weight certification of each lot.

The containers weighed must meet the prescribed inspection requirements in § 51.1863 for certification of the lot. Section 51.1863 specifies that when packages are marked to a net weight of 15 pounds or more, the net weight of the contents shall not be less than the designated net weight and shall not exceed the designated weight by more than 2 pounds. In order to allow for variations incident to proper sizing, not more than 15 percent, by count, of the packages in any lot may fail to meet the requirements for standard weight. Most of the tomatoes produced in the production area are packed in 25-pound containers.

In their discussion, Committee members stated the current sampling rate requires costly labor and is a time-consuming process that is difficult to maintain due to the handling volume in many operations. One industry member stated that the volume of lots inspected at some handling operations can total around 50 lots in a single 24-hour period. If 50 lots were inspected in one day this would equal a total of 1800 samples selected for recording the weight. The handler's employee would be responsible for pulling and weighing 1400 of these 25-pound samples to meet the standard weight requirement. Thus, high volume handlers may have to employ multiple people to perform the weight inspections.

The labor provided by the handler expedites the certification process and is lower than the cost of having FSIS inspectors weigh the additional cartons. However, standard weight certification is still expensive to maintain. One member stated that providing the necessary employees at their handling facility to properly administer the certification program cost an extra $80,000 a year above the fees charged by FSIS inspection.

The Committee asked if it might be possible to lower the sampling rate while maintaining the certification process as the container sampling size for standard weight is several times greater than the number of containers sampled by FSIS when certifying for grade and size. SCI stated that certification at a rate lower than 36 samples would require a study that could statistically support a new sampling rate. SCI indicated a study would possibly take a year to develop, implement, and to analyze the results. Committee members expressed concern over the time and cost of carrying out such a study, and that the best course of action may be to remove the requirement for standard weight inspection.

In discussing the value of the weight certification program, Committee members stated that receivers of Florida tomato shipments still perform weight inspections regardless of the required weight certification. Even with the standard weight certification, there are occasions when weight is an issue and the shipper often rectifies any discrepancies by making an adjustment to the shipment for the receiver. At both meetings, Committee members expressed that handling operations are spending thousands of dollars annually to meet the certification requirement without realizing a significant benefit from the program. Committee members stated that the expense of labor and inspection time for certification is difficult to justify since the handler already makes an adjustment for the receiver regardless of the certification.

Committee members also stated that tomato handlers outside the regulated area are not required to maintain standard weight certification. One member indicated that eliminating the standard weight requirement on Florida tomato handlers would allow the industry's inspection procedures to be more comparable to handlers outside the regulated area. Another commenter stated that most handlers are now using in-line scales to weigh each container and did not see the benefit of requiring standard weight certification.

Removing the standard weight requirement would allow handlers to avoid the time and labor costs associated with the certification process. The Committee believes there is no longer enough benefit to justify maintaining the standard weight certification, and unanimously recommended eliminating the standard weight requirements for the 2019-20 and subsequent fiscal periods.

Committee members agreed that maintaining the individual net weight requirements for containers is still a valuable component of the Order. The current net weight requirements state all tomatoes packed by a registered handler shall be packed in containers of 10, 20, and 25 pounds designated net weights. The net weight of the contents shall not be less than the designated net weight and shall not exceed the designated net weight by more than two pounds. This action would not modify that requirement.

With this action, FSIS would still sample the required containers to perform size and grade inspection along with recording the weights from each sample. FSIS could provide a record of the weights from the eight samples inspected for size and grade upon request. The Committee noted that the eight samples weighed by FSIS would provide an independent record to reference in addition to the in-line automated weighing systems used by many handlers. The Committee believes the eight samples weighed by FSIS in conjunction with the automated weighing systems would provide ample information regarding the container weights for each lot. Further, eliminating the standard weight requirement would not preclude the handler from requesting a standard weight inspection.

Section 8e of the Act (7 U.S.C. 608e-1) provides that when certain domestically produced commodities, including tomatoes, are regulated under a Federal marketing order, imports of that commodity must meet the same or comparable grade, size, quality, and maturity requirements. No corresponding change to the import regulations is required as this is a proposal to change the container requirements.

Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612), the Agricultural Marketing Service (AMS) has considered the economic impact of this proposed rule on small entities. Accordingly, AMS has prepared this initial regulatory flexibility analysis.

The purpose of the RFA is to fit regulatory actions to the scale of businesses subject to such actions in order that small businesses will not be unduly or disproportionately burdened. Marketing orders issued pursuant to the Act, and the rules issued thereunder, are unique in that they are brought about through group action of essentially small entities acting on their own behalf.

There are approximately 75 producers of Florida tomatoes in the production area and 37 handlers subject to regulation under the Order. Small agricultural producers are defined by the Small Business Administration (SBA) as those having annual receipts less than $750,000, and small agricultural service firms are defined as those whose annual receipts are less than $7,500,000 (13 CFR 121.201).

According to industry and Committee data, the average annual price for fresh Florida tomatoes during the 2017-18 season was approximately $12.56 per 25-pound container, and total fresh shipments were 25.9 million containers. Using the average price and shipment information, the number of handlers, and assuming a normal distribution, the majority of handlers have average annual receipts of more than $7,500,000, ($12.56 times 25.9 million containers equals $325,304,000 divided by 37 handlers equals $8,792,000 per handler).

In addition, based on production data, an estimated producer price of $6.00 per 25-pound container, the number of Florida tomato producers, and assuming a normal distribution, the average annual producer revenue is above $750,000 ($6.00 times 25.9 million containers equals $155,400,000 divided by 75 producers equals $2,072,000 per producer). Thus, the majority of handlers and producers of Florida tomatoes may be classified as large entities.

This proposed rule would eliminate the standard weight certification requirement under the Order. The Committee determined there is no longer sufficient benefit to justify the cost and time required for the standard weight certification. This proposed action would enable handlers to reduce inspection time and labor costs associated with the standard weight program. This rule would revise § 966.323. Authority for these changes is provided in § 966.52.

It is not anticipated that this action would impose additional costs on handlers or growers, regardless of size. The proposed changes are intended to reduce expenses incurred for labor and inspection time associated with the certification process for standard weight.

The current inspection sampling rate for standard weight certification based on a lot size of 1600 containers is 36 containers. FSIS currently samples eight tomato containers from each lot for grade and size inspection, and these containers are also weighed as part of the sampling for standard weight. In order to comply with standard weight certification procedures, an additional 28 containers need to be weighed. To lower the inspection time and cost, many tomato handlers provide an employee to sample and weigh the additional 28 containers to reach the total 36 samples required for the standard weight certification of each lot.

Total fresh shipments of Florida tomatoes for the 2017-18 season were 25.9 million 25-pound containers. This volume represents approximately 16,188 normal lots of tomatoes requiring inspection for standard weight. Using 2017-18 volume, this change would eliminate the requirement that inspection personnel or handler employees lift, weigh, and record approximately 453,265 25-pound containers during a similar season. This analysis illustrates the laborious nature involved in the standard weight inspection and certification process.

Avoiding the time and labor costs associated with standard weight certification would reduce expenses for the Florida tomato industry. This proposed action would reduce the labor required for the inspection process by thousands of hours every year, reducing the cost for handlers. The expense of labor for inspection can vary widely between handler employees and the FSIS. However, one Committee member stated that this action would save his handling operation $80,000 every year. This proposed action is expected to lower handler cost associated with the inspection process. The benefits of this rule are expected to be equally available to all Florida fresh tomato handlers, regardless of size.

The Committee considered an alternative to this proposed action. Prior to this recommendation, the Committee discussed lowering the sampling size for the standard weight certification program with the SCI. However, after further discussion on the inspection process and the time it could possibly take to review, the Committee determined the standard weight program no longer provided sufficient benefit to justify the cost and time required for certification. Therefore, the alternative was rejected.

In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the Order's information collection requirements have been previously approved by OMB and assigned OMB No. 0581-0178 Vegetable and Specialty Crops. No changes are necessary in those requirements as a result of this proposed action. Should any changes become necessary, they would be submitted to OMB for approval.

This proposed rule would not impose any additional reporting or recordkeeping requirements on either small or large Florida tomato handlers. As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies.

AMS is committed to complying with the E-Government Act, to promote the use of the internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes.

USDA has not identified any relevant Federal rules that duplicate, overlap or conflict with this proposed rule.

The Committee's meetings were widely publicized throughout the Florida tomato industry, and all interested persons were invited to attend the meeting and participate in Committee deliberations on all issues. Like all Committee meetings, the August 24 and September 6, 2018, meetings were public meetings, and all entities, both large and small, were able to express their views on this issue. Interested persons are invited to submit comments on this proposed rule, including the regulatory and information collection impacts of this proposed action on small businesses.

A small business guide on complying with fruit, vegetable, and specialty crop marketing agreements and orders may be viewed at: http://www.ams.usda.gov/rules-regulations/moa/small-businesses. Any questions about the compliance guide should be sent to Richard Lower at the previously mentioned address in the FOR FURTHER INFORMATION CONTACT section.

A 30-day comment period is provided to allow interested persons to respond to this proposal. All written comments timely received will be considered before a final determination is made on this matter.

For the reasons set forth in the preamble, 7 CFR part 966 is proposed to be amended as follows:

Comments Invited

We invite interested people to take part in this rulemaking by sending written comments, data, or views. The most helpful comments reference a specific portion of the special conditions, explain the reason for any recommended change, and include supporting data.

We will consider all comments we receive by the closing date for comments. We may change these special conditions based on the comments we receive.

On February 13, 2019, Airbus applied for a change to Type Certificate No. A46NM for seats with inertia locking devices in Model A330 series airplanes. The Model A330 series airplane is a twin-engine, transport-category airplane with a maximum takeoff weight of 533,518 pounds and seating for 440 passengers.

Under the provisions of title 14, Code of Federal Regulations (14 CFR) 21.101, Airbus must show that the Model A330 series airplanes, as changed, continue to meet the applicable provisions of the regulations listed in Type Certificate No. A46NM, or the applicable regulations in effect on the date of application for the change, except for earlier amendments as agreed upon by the FAA.

If the Administrator finds that the applicable airworthiness regulations ( i.e., 14 CFR part 25) do not contain adequate or appropriate safety standards for Airbus Model A330 series airplanes because of a novel or unusual design feature, special conditions are prescribed under the provisions of § 21.16.

Special conditions are initially applicable to the model for which they are issued. Should the type certificate for that model be amended later to include any other model that incorporates the same novel or unusual design feature, or should any other model already included on the same type certificate be modified to incorporate the same novel or unusual design feature, these special conditions would also apply to the other model under § 21.101.

In addition to the applicable airworthiness regulations and special conditions, Airbus Model A330 series airplanes must comply with the fuel-vent and exhaust-emission requirements of 14 CFR part 34, and the noise-certification requirements of 14 CFR part 36.

The FAA issues special conditions, as defined in 14 CFR 11.19, in accordance with § 11.38, and they become part of the type certification basis under § 21.101.

Airbus Model A330 series airplanes will incorporate the following novel or unusual design features:

Seats with inertia locking devices (ILD).

Airbus has proposed to install, in Model A330 series airplanes, Thompson Aero Seating Ltd. passenger seats that can be translated in the fore and aft direction by an electrically powered motor (actuator) that is attached to the seat primary structure. Under typical service-loading conditions, the motor internal brake is able to translate the seat and hold the seat in the translated position. However, under the inertial loads of emergency-landing loading conditions specified in 14 CFR 25.562, the motor internal brake may not be able to maintain the seat in the required position. The ILD is an “active” device intended to control seat movement ( i.e., a system that mechanically deploys during an impact event) to lock the gears of the motor assembly in place. The ILD mechanism is activated by the higher inertial load factors that could occur during an emergency landing event. Each seat place incorporates two ILDs; one on either side of the seat pan. Only one ILD is required to hold an occupied seat in position during worst-case dynamic loading specified in § 25.562.

The ILD will self-activate only in the event of a predetermined airplane loading condition such as that occurring during crash or emergency landing, and will prevent excessive seat forward translation. A minimum level of protection must be provided if the seat-locking device does not deploy.

The normal means of satisfying the structural and occupant protection requirements of § 25.562 result in a non-quantified, but nominally predictable, progressive structural deformation or reduction of injury severity for impact conditions less than the maximum specified by the rule. A seat using ILD technology, however, may involve a step change in protection for impacts below and above that at which the ILD activates and deploys to retain the seat pan in place. This could result in structural deformation or occupant injury output being higher at an intermediate impact condition than that resulting from the maximum impact condition. It is acceptable for such step-change characteristics to exist, provided the resulting output does not exceed the maximum allowable criteria at any condition at which the ILD does or does not deploy, up to the maximum severity pulse specified by the requirements.

The ideal triangular maximum severity pulse is defined in Advisory Circular (AC) 25.561-1B. For the evaluation and testing of less-severe pulses for purposes of assessing the effectiveness of the ILD deployment setting, a similar triangular pulse should be used with acceleration, rise time, and velocity change scaled accordingly. The magnitude of the required pulse should not deviate below the ideal pulse by more than 0.5g until 1.33 t 1 is reached, where t 1 represents the time interval between 0 and t 1 on the referenced pulse shape as shown in AC 25.561-1B. This is an acceptable method of compliance to the test requirements of the special conditions.

Proposed conditions 1 through 5 address ensuring that the ILD activates when intended in order to provide the necessary protection of occupants. This includes protection of a range of occupants under various accident conditions. Proposed conditions 6 through 10 address maintenance and reliability of the ILD, including any outside influences on the mechanism, to ensure it functions as intended.

The proposed special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.

As discussed above, these special conditions are applicable to Airbus Model A330 series airplanes. Should Airbus apply at a later date for a change to the type certificate to include another model incorporating the same novel or unusual design feature, these special conditions would apply to that model as well.

This action affects only one novel or unusual design feature on one model series of airplanes. It is not a rule of general applicability.

The authority citation for these special conditions is as follows:

Accordingly, the Federal Aviation Administration (FAA) proposes the following special conditions as part of the type certification basis for Airbus Model A330 series airplanes.

In addition to the requirements of § 25.562, passenger seats incorporating inertia locking device (ILD)s must meet the following:

1. Level of Protection Provided by ILD—It must be demonstrated by test that the seats and attachments, when subject to the emergency-landing dynamic conditions specified in § 25.562, and with one ILD not deployed, do not experience structural failure that could result in:

a. Separation of the seat from the airplane floor.

b. Separation of any part of the seat that could form a hazard to the seat occupant or any other airplane occupant.

c. Failure of the occupant restraint or any other condition that could result in the occupant separating from the seat.

2. Protection Provided Below and Above the ILD Actuation Condition—If step-change effects on occupant protection exist for impacts below and above that at which the ILD deploys, tests must be performed to demonstrate that the occupant is shown to be protected at any condition at which the ILD does or does not deploy, up to the maximum severity pulse specified by § 25.562. Test conditions must take into account any necessary tolerances for deployment.

3. Protection Over a Range of Crash Pulse Vectors—The ILD must be shown to function as intended for all test vectors specified in § 25.562.

4. Protection During Secondary Impacts—The ILD activation setting must be demonstrated to maximize the probability of the protection being available when needed, considering a secondary impact that is above the severity at which the device is intended to deploy up to the impact loading required by § 25.562.

5. Protection of Occupants other than 50th Percentile—Protection of occupants for a range of stature from a two-year-old child to a ninety-five percentile male must be shown.

6. Inadvertent Operation—It must be shown that any inadvertent operation of the ILD does not affect the performance of the device during a subsequent emergency landing.

7. Installation Protection—It must be shown that the ILD installation is protected from contamination and interference from foreign objects.

8. Reliability—The performance of the ILD must not be altered by the effects of wear, manufacturing tolerances, aging/drying of lubricants, and corrosion.

9. Maintenance and Functional Checks—The design, installation and operation of the ILD must be such that it is possible to functionally check the device in place. Additionally, a functional check method and a maintenance check interval must be included in the seat installer's instructions for continued airworthiness (ICA) document.

10. Release Function—If a means exists to release an inadvertently activated ILD, the release means must not introduce additional hidden failures that would prevent the ILD from functioning properly.

The FAA's authority to issue rules on aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority.

This rulemaking is promulgated under the authority described in Title 49, Subtitle VII, Part A, Subpart I, Chapter 401, Section 40113 (prescribing general authority of the Administrator of the FAA, with respect to aviation safety duties and powers, to prescribe regulations); and Subpart III, Chapter 447, Sections 44701 (general authority of the Administrator to prescribe regulations and minimum standards in the interest of safety for inspecting, servicing, and overhauling aircraft, engines, propellers, and appliances, including for other practices, methods, and procedures necessary for safety in air commerce); 44702 (authority of the Administrator to issue air agency certificates); 44707 (authority of the Administrator to examine and rate air agencies, including civilian schools giving instruction in repairing, altering, and maintaining aircraft, aircraft engines, propellers, and appliances, on the adequacy of instruction, the suitability and airworthiness of equipment, and the competency of instructors); and 44709 (authority of the Administrator to amend, modify, suspend, and revoke air agency and other FAA-issued certificates).

On September 4, 1992, EPA promulgated 40 CFR part 55, 1 which established requirements to control air pollution from OCS sources in order to attain and maintain federal and state ambient air quality standards and to comply with the provisions of part C of title I of the CAA. The regulations at 40 CFR part 55 apply to all OCS sources except those located in the Gulf of Mexico west of 87.5 degrees longitude. See 40 CFR 55.3(a). Section 328 of the CAA requires that for such sources located within 25 miles of a state's seaward boundary, the requirements shall be the same as would be applicable if the sources were located in the COA. Because the OCS requirements are based on onshore requirements, and onshore requirements may change, section 328(a)(1) requires that EPA update the OCS requirements as necessary to maintain consistency with onshore requirements.

Pursuant to 40 CFR 55.12, consistency reviews will occur (1) at least annually; (2) upon receipt of a Notice of Intent (NOI) under 40 CFR 55.4; or (3) when a state or local agency submits a rule to EPA to be considered for incorporation by reference in 40 CFR part 55. This proposed action is being taken in response to the submittal of a NOI, received on January 28, 2019, by Dominion Energy Virginia, for the proposed installation of a 12-megawatt offshore wind technology testing facility located approximately 24 nautical miles east of the City of Virginia Beach, Virginia. 2 Public comments received in writing within 30 days of publication of this document will be considered by EPA before publishing a final rule.

Section 328(a) of the CAA requires that EPA establish requirements to control air pollution from OCS sources located within 25 miles of States' seaward boundaries that are the same as onshore requirements. To comply with this statutory mandate, EPA must incorporate applicable onshore rules into 40 CFR part 55 as they exist onshore. This limits EPA's flexibility in deciding which requirements will be incorporated into 40 CFR part 55 and prevents EPA from making substantive changes to the requirements it incorporates. As a result, EPA may be incorporating rules into 40 CFR part 55 that do not conform to all of EPA's state implementation plan (SIP) guidance or certain requirements of the CAA. Consistency updates may result in the inclusion of state or local rules or regulations into 40 CFR part 55, even though the same rules may ultimately be disapproved for inclusion as part of the SIP. Inclusion in the OCS rule does not imply that a rule meets the requirements of the CAA for SIP approval, nor does it imply that the rule will be approved by EPA for inclusion in the SIP.

EPA reviewed Virginia's rules for inclusion in 40 CFR part 55 to ensure that they are rationally related to the attainment or maintenance of federal or state ambient air quality standards and compliance with part C of title I of the CAA, that they are not designed expressly to prevent exploration and development of the OCS, and that they are potentially applicable to OCS sources. See 40 CFR 55.1. EPA has also evaluated the rules to ensure they are not arbitrary or capricious. See 40 CFR 55.12(e). In addition, EPA has excluded administrative or procedural rules, and requirements that regulate toxics which are not related to the attainment and maintenance of federal and state ambient air quality standards. 3

EPA is soliciting public comments on the issues discussed in this document or on other relevant matters. These comments will be considered before taking final action. Interested parties may participate in the federal rulemaking procedure by submitting written comments to the EPA Regional Office listed in the ADDRESSES section of this Federal Register .

EPA is proposing to incorporate the rules potentially applicable to sources for which the Commonwealth of Virginia will be the COA. The rules that EPA proposes to incorporate are applicable provisions of the Virginia Administrative Code (VAC). The rules EPA proposes to incorporate are listed in detail at the end of the document. The intended effect of proposing approval of the OCS requirements for the Virginia Department of Environmental Quality (VADEQ) is to regulate emissions from OCS sources in accordance with the requirements for onshore sources.

In this document, EPA is proposing to include in a final EPA rule regulatory text that includes incorporation by reference. In accordance with the requirements of 1 CFR 51.5, EPA is proposing to incorporate by reference the applicable provisions of the Virginia Administrative Code set forth below. EPA has made, and will continue to make, these materials available through www.regulations.gov and at the EPA Region III Office (please contact the person identified in the For Further Information Contact section of this preamble for more information).

Under the Clean Air Act, the Administrator is required to establish requirements to control air pollution from OCS sources located within 25 miles of states' seaward boundaries that are the same as onshore air pollution control requirements. To comply with this statutory mandate, the EPA must incorporate applicable onshore rules into 40 CFR part 55 as they exist onshore. See 42 U.S.C. 7627(a)(1); 40 CFR 55.12. Thus, in promulgating OCS consistency updates, EPA's role is to maintain consistency between OCS regulations and the regulations of onshore areas, provided that they meet the criteria of the CAA. Accordingly, this action simply updates the existing OCS requirements to make them consistent with requirements onshore, without the exercise of any policy direction by EPA. For that reason, this proposed action:

• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);

• Is not an Executive Order 13771 regulatory action because this action is not significant under Executive Order 12866.

• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq. );

• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. );

• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);

• Does not have federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);

• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);

• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);

• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and

• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

This proposed rule incorporating by reference sections of the Virginia Administrative Code, does not apply on any Indian reservation land as defined in 18 U.S.C. 1151 or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, this rule incorporating by reference sections of the Virginia Administrative Code does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

Under the provisions of the Paperwork Reduction Act, 44 U.S.C 3501 et seq., an agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. OMB has approved the information collection requirements contained in 40 CFR part 55 and, by extension, this update to the rules, and has assigned OMB control number 2060-0249. OMB approved the EPA Information Collection Request (ICR) No. 1601.08 on September 18, 2017. 4 The current approval expires September 30, 2020. The annual public reporting and recordkeeping burden for collection of information under 40 CFR part 55 is estimated to average 643 hours per response, using the definition of burden provided in 44 U.S.C. 3502(2).

EPA is proposing to incorporate the rules potentially applicable to sources for which the Commonwealth of Virginia will be the COA. The rules that EPA proposes to incorporate are applicable provisions of the Virginia Administrative Code.

Part 55 of Chapter I, title 40 of the Code of Federal Regulations is proposed to be amended as follows:

The United States is a member of the IATTC, which was established under the 1949 Convention for the Establishment of an Inter-American Tropical Tuna Commission. In 2003, the IATTC adopted the Antigua Convention, which was negotiated to strengthen and replace the 1949 Convention establishing the IATTC. The Antigua Convention entered into force in 2010. The United States acceded to the Antigua Convention on February 24, 2016. The full text of the Antigua Convention is available at: https://www.iattc.org/PDFFiles2/Antigua_Convention_Jun_2003.pdf .

The IATTC consists of 21 member nations and five cooperating non-member nations (collectively termed CPCs). The IATTC facilitates scientific research, conservation, and management of tuna and tuna-like species in the IATTC Convention Area (Convention Area), defined as waters of the EPO within the area bounded by the west coast of the Americas and by 50° N latitude, 150° W longitude, and 50° S latitude. The IATTC maintains a scientific research and fishery monitoring program and regularly assesses the status of tuna, shark, and billfish stocks in the EPO to determine appropriate catch limits and other measures to promote sustainable fisheries and prevent the overexploitation of these stocks.

As a Party to the Antigua Convention and a member of the IATTC, the United States is legally bound to implement certain decisions of the IATTC. The TCA (16 U.S.C. 951 et seq. ), as amended on November 5, 2015, by Title II of Public Law 114-81, directs the Secretary of Commerce, in consultation with the Secretary of State and, with respect to enforcement measures, the Secretary of the Department of Homeland Security, to promulgate such regulations as may be necessary to carry out the United States' international obligations under the Antigua Convention, including recommendations and decisions adopted by the IATTC. The Secretary of Commerce's authority to promulgate such regulations has been delegated to NMFS.

An International Maritime Organization (IMO) number is a unique vessel identifier that is permanently associated with the vessel hull, even if the vessel name or ownership changes or if the vessel is reflagged to another nation. For those reasons, there is a wide recognition that IMOs can be useful in helping combat illegal, unreported, and unregulated (IUU) fishing. The IMO, on December 6, 2017, approved amendments to the IMO Ship Identification Number Scheme (IMO Resolution A.1117(30)) expanding fishing vessels' eligibility for IMO numbers. Prior to the amendments, only vessels 100 gross tonnage or above were eligible. The amendment extends eligibility to motorized inboard fishing vessels of less than 100 gross tons GT that are at least 12 meters in length overall and that are authorized to operate outside waters under the national jurisdiction of the flag State.

The IATTC adopted IMO numbering requirements at its 87th meeting in July 2014. Resolution C-14-01 ( Resolution (amended) on a Regional Vessel Register ) required an IMO number or Lloyd's Register number for fishing vessels of at least 100 GT or 100 GRT authorized to fish in the Convention Area. A “Lloyd's Register number,” or “LR number,” has the same meaning as an IMO number except that an LR number refers to the number issued for a vessel not required to have an IMO number under IMO agreements. The administrator of the IMO ship identification number scheme issues both types of numbers using the same numbering scheme. CPCs are required to provide the IATTC Director IMO numbers for vessels authorized to fish in the Convention Area. NMFS implemented the IMO numbering requirements under Resolution C-14-01 for vessels equal to or greater than 100 GT or 100 GRT in a final rule, effective February 13, 2016 (81 FR 1878).

The IATTC adopted at its 93rd meeting in August 2018 Resolution C-18-06 ( Resolution (amended) on a Regional Vessel Register ), which amended Resolution C-14-01. Resolution C-18-06 expands the IMO number requirement from all fishing vessels of at least 100 GRT or 100 GT to also include all inboard motorized fishing vessels (except for recreational fishing vessels) of 12 meters or greater in overall length (LOA) or registered length, provided that these vessels are authorized to fish for tuna or tuna-like species on the high seas in the Convention Area. Resolution C-18-06 is available at http://www.iattc.org/ResolutionsActiveENG.htm.

In June 2002, at its 69th meeting, the IATTC adopted Resolution C-02-03 ( Resolution on the Capacity of the Tuna Fleet Operating in the Eastern Pacific Ocean ) to limit fleet capacity to a level that would ensure sustainable tuna fisheries in the region. Resolution C-02-03 established a total capacity limit of 158,000 cubic meters for all vessels authorized by the IATTC to fish for tuna species in the EPO. Each CPC was allocated a vessel capacity limit based on historical fishing levels in the EPO.

When Resolution C-02-03 was adopted, the United States was allocated a total of 39,228 cubic meters of capacity in the purse seine fishery. The Resolution also allowed up to 32 U.S. purse seine vessels operating under an alternative international fisheries management regime ( e.g., the South Pacific Tuna Treaty) to make a single trip in the EPO, not to exceed 90 days in length without counting towards the U.S. available fleet capacity. Due to removal and additions of vessels from the Vessel Register, the IATTC currently allows the United States up to 31,866 cubic meters of carrying capacity for its EPO purse seine fleet, as well as the additional 32 vessel trips.

The United States promulgated regulations for Vessel Register requirements, including specific regulations for management of the list of active purse seine vessels. NMFS published a final rule in the Federal Register (76 FR 283; January 4, 2011) that required that all purse seine vessels, regardless of size, be on the Vessel Register and categorized as “active” in order to be authorized to fish for tuna in the Convention Area. The final rule also exempted small purse seine vessels ( i.e., vessel with 362.8 metric tons carrying capacity or less) from frivolous request provisions for active status at 50 CFR 300.22(b)(4)(ii), based on the difficulty of anticipating whether unassociated schools of tuna would come within their range off the U.S. West Coast during a given year. Vessels that do not utilize their active status to a certain extent are considered to have made a frivolous request for that year and become lower in the prioritization of requests for active status for the following year. Following that final rule, further input from stakeholders and further consideration of the U.S.-specific regulations implementing Vessel Register requirements, NMFS sought additional public input on the measures.

NMFS published an Advance Notice of Proposed Rulemaking (ANPR) on March 29, 2018 (83 FR 13466), requesting public comments on the administrative processes to improve the management of capacity limits associated with the Vessel Register. The capacity of U.S. purse seine vessels has approached the U.S. capacity limit in recent years, resulting in the inability to add vessels to the Vessel Register. In addition, requests to be added to the Vessel Register have exceeded the available IATTC-allotted capacity limit for the U.S. Uncertainty and an increase in the cost of fishing in other areas ( e.g., the western central Pacific Ocean under the South Pacific Tuna Treaty) has led to an increase in the number of large purse seine vessels ( i.e., greater than 362.8 metric tons (mt) carrying capacity) seeking fishing access in the Convention Area. Furthermore, since 2014, there has been increased interest in tuna from small purse seine vessels based on the U.S. West Coast. NMFS anticipates that these trends are likely to continue.

NMFS received comments with suggestions for management measures from three stakeholders representing both small and large U.S. tuna purse seine vessels that fish in the EPO. Stakeholders submitted comments related to the fleet capacity limit, inactive status, small purse seine vessel requirements, vessel replacement process, and more. In developing this proposed rule, NMFS examined these comments for their validity under current IATTC resolutions and evaluated the likelihood of the perceived benefits to the U.S. EPO tuna purse seine fleet. The resulting actions in this proposed rule are described below.

Per Resolution C-18-06, the proposed rule would require that the owner of a fishing vessel of the United States engaging in fishing activities for tuna or tuna-like species in the Convention Area, and for which a high seas fishing permit under 50 CFR 300.333 is required, shall ensure that an IMO number has been issued for the vessel if the vessel's total internal volume is less than 100 GRT or less than 100 GT but equal to or greater than 12 meters in overall length. Vessel measurements will be based on the vessel's Certificate of Documentation issued under 46 CFR part 67, or State documentation. Currently, IMO numbers are issued on behalf of the IMO by IHS Markit, formerly known as IHS Maritime, at no cost to the vessel ( https://imonumbers.lrfairplay.com/ ). The current instructions for requesting an exemption at 50 CFR 300.22(b)(3)(iv) would also apply to the vessels subject to this proposed IMO number requirement.

The proposed rule would make a technical correction to the vessel capacity limit for the U.S. tuna purse seine fishery operating in the EPO so that the limit would be consistent with the amount authorized by the IATTC. This would add 91 cubic meters to the current U.S. fleet capacity limit of 31,775 cubic meters, and bring the limit to 31,866 cubic meters. These additional 91 cubic meters of capacity resulted from an IATTC revision of our historical capacity calculation.

The proposed rule would also update the regulatory text to clarify that vessels listed as inactive or sunk on the Vessel Register count towards the United States' 31,866 cubic meter fleet-wide capacity limit. This is the long-standing practice by the IATTC. Current regulations at 50 CFR 300.22(b)(4) exclude such vessels from the allocation of available capacity, due to an administrative error.

Additionally, the proposed rule would set a time limit of two consecutive calendar years for vessels holding inactive or sunk status, after which a request by such a vessel to be listed on the Vessel Register would be subject to the prioritization hierarchy of request under the current 50 CFR 300.22(b)(4)(i)(C). Therefore, the active status requests for the following year received between August 1 and November 30 would be prioritized in the following order: Currently active, currently inactive, first-come first served, and, lastly, those who made a frivolous request or were listed as inactive or sunk for more than two consecutive calendar years. NMFS considers this proposed revision to be consistent with the intent of the existing inactive status provision at 50 CFR 300.22(b)(4)(iii) ( i.e., to allow for vessel replacement or repair while not paying a full active vessel assessment fee), while also preventing an indefinite hold on capacity. NMFS believes that two years is a sufficient length of time for a vessel to be repaired or to be replaced, based upon our understanding of the amount of time necessary to find a shipyard for repairs and for repairs to be completed, or the amount of time for a replacement vessel to be purchased and delivered. NMFS welcomes public comment on the appropriate such length of time.

The proposed rule would also allow for a vessel owner or managing owner of a purse seine vessel that has sunk but is listed as active on the Vessel Register to request the vessel be listed as sunk and categorized as inactive on the Vessel Register within 30 days of its sinking. Currently, regulations provide that sunken vessels are immediately removed from the Vessel Register. Under the proposed rule, if a request is not made to list the vessel as sunk within 30 days of its sinking, then the vessel may be removed from the Vessel Register by the NMFS West Coast Regional Administrator.

The proposed rule would also treat as frivolous any request by a small coastal purse seine vessel for active status if that vessel did not make at least one landing of tuna caught in the Convention Area in the calendar year prior to the request through November 15 of the year in which the request is made ( i.e., a request made in 2019 to fish in 2020 would require one landing of tuna between January 1, 2018, and November 15, 2019). If a small purse seine vessel has not landed tuna caught in the Convention Area within the year before the request was made and through November 15th of the year the request was made, and requests active status on the Vessel Register for the following year ( i.e., the third consecutive year of requesting active status), the request would be considered frivolous and subject to the prioritization hierarchy of request under 50 CFR 300.22(b)(4)(i)(C).

While there is difficulty in anticipating whether schools of tuna would come within range of the small purse seine vessels off the U.S. West Coast during a given year, NMFS is proposing changes to regulations in this proposed rule to help ensure the inclusion on the Vessel Register of vessels that are actively fishing and landing tuna. Since 2011, small purse seine vessels that harvested tuna for more than one year landed tuna every 1.75 years on average. Thus, the proposed rule expands on the intent of the existing frivolous request provision, 50 CFR 300.22(b)(4)(ii), by also including small purse seine vessels, while recognizing the variability in harvesting tuna in coastal waters by such vessels. The proposed frivolous request provision for small purse seine vessels would allow considerations of force majeure or other extraordinary circumstances that may have prevented a vessel from making a landing during the two year time period. Extraordinary circumstances may include lack of tuna availability or other unique situations as determined by the Regional Administrator.

Based on a comment received on the ANPR, NMFS considered revising the existing frivolous request provision for large purse seine vessels (requiring that large purse seine vessels must catch 20 percent of their tuna in the EPO during the year in which the request was made at 50 CFR 300.22(b)(4)(ii)) in order to allow for an activity requirement based on time spent fishing in the EPO. Such an activity requirement would be in addition to the existing requirement for a 20 percent catch composition, and would be applied in the event a vessel was not able to meet this percentage requirement, and despite reasonably attempting to do so. NMFS declined to further revise the existing frivolous request provision for large purse seine vessels in this manner, as NMFS believes an existing exemption to the frivolous request provision already addresses this type of situation. Specifically, the regulatory text at 50 CFR 300.22(b)(4)(ii)(B)( 1 ) allows the NMFS West Coast Regional Administrator to determine whether force majeure or other extraordinary circumstances apply to a particular request for active status.

NMFS agrees with a comment received on the ANPR that U.S. purse seine vessels are aging and that there is currently no process to replace them without risk of losing the aging vessel's status on the Vessel Register. Thus, the proposed rule would include a new “aging fleet” provision in 50 CFR 300.22(b) to allow for purse seine vessel owners to replace a purse seine vessel on the Vessel Register with a new or different purse seine vessel, of equal or lesser carrying capacity, without losing the vessel's status on the Vessel Register. The proposed rule would give the vessel owner a period of two years for replacing the existing vessel with a new vessel or a different used vessel.

The replacement process under the aging fleet provision would begin with the vessel owner submitting a request to the NMFS West Coast Regional Administrator to remove their vessel from the Vessel Register. When a vessel is removed from the Vessel Register, the NMFS West Coast Regional Administrator is currently required to send a notification to the fleet regarding available capacity under 50 CFR 300.22(b)(7)(iii). The proposed rule would include an exception to this notification requirement when a vessel has been removed under the proposed aging fleet provision. Under the proposed aging fleet provision, NMFS would reserve the capacity on the Vessel Register for a period of up to two years and the vessel owner must complete the replacement process within the two-year period in order to resume utilization of the capacity being held by NMFS. Vessel owners would be authorized to use this provision only once for a particular purse seine vessel, to prevent situations where a vessel is passed back and forth between owners who have no intention of using the capacity and whose actions prevent others from utilizing that capacity. The proposed rule also would modify the existing provision on the prioritization of requests to be listed on the Vessel Register so that vessel owners using the proposed aging fleet provision will have first priority to active status, provided that the aging fleet provision replacement process is completed within the two-year period.

In June 2006, at its 74th meeting, the IATTC revised Resolution C-04-05 ( Consolidated Resolution on Bycatch (Rev 2) ). The resolution addressed reduction of the incidental mortality of juvenile tuna and release of non-target species, and called for various sea turtle protection measures. NMFS implemented Resolution C-04-05 at 50 CFR 300.24 (Prohibitions) and at 50 CFR 300.27 (Incidental Catch and Tuna Retention Requirements). However, NMFS now believes that certain provisions are more restrictive for the U.S. industry than what is required by the resolution, and, therefore, has proposed the revisions discussed below.

NMFS is proposing to revise the regulatory text at 50 CFR 300.24(f) and (g) and 300.27(b) to be more consistent with Resolution C-04-05. For example, in 50 CFR 300.24(f) and 300.27(b), the proposed rule would amend the release requirements so that they would no longer apply to tuna-like species. Exempting tuna-like species from the release requirement would allow purse seine vessels to retain tuna-like species, such as the Pacific bonito and black skipjack that were historically targeted, while remaining consistent with the goal of the Resolution to conserve non-target species. The prohibition on landing non-tuna species would be removed from 50 CFR 300.24(g) to allow for the landing of tuna-like species. Purse seine vessels would still be prohibited from landing non-tuna species, as prohibited in the existing language of 50 CFR 300.24(g), other than tuna-like species, because the prohibition on failing to release any non-tuna species would continue to be found in 50 CFR 300.24(g) and 50 CFR 300.27(b). The continued requirement to release fish other than tuna, tuna-like species, and those retained for consumption on board the vessel, is necessary to comply with the Resolution and to promote the conservation of such species. Allowing for the retention and landing of tuna-like species may help offset operational costs, provide flexibility in operations, and allow the utilization of a resource that would have otherwise been discarded.

For purposes of facilitating use of the EPO tuna fleet capacity, the requirement for a 5-day advance notice of vessel departure in order to allow for placement of an observer under § 216.24(b)(8)(iv) would be amended. A supplemental notification would require that a vessel owner or managing owner request placement of a cross-endorsed observer, pursuant to the Memorandum of Cooperation (MOC) between the IATTC and the Western and Central Pacific Fisheries Commission (WCPFC), if the vessel also intends to fish in the WCPFC Convention Area under 50 CFR part 300, subpart O during the same fishing trip. This MOC facilitates observer placement onboard vessels that fish in the areas of both conventions during the same trip.

The proposed rule would amend existing regulatory text to clarify that vessel owners must coordinate with NMFS to pay the vessel assessment fee directly to the IATTC, and not to NMFS, as currently stated in 50 CFR, sections 300.22(b)(4)(i), 300.22(b)(4)(iii), 216.24(b)(6)(iii) and 216.24(b)(8). As established by the IATTC and implemented in existing regulations, the vessel assessment fee supports the placement of observers on individual tuna purse seine vessels and maintenance of the observer program. Additional changes would be made to the regulatory text, as described below, for clarification purposes at 50 CFR, sections 300.21, 300.22(b)(1), 300.22(b)(4), and 300.22(b)(7).

The proposed rule would amend notification requirements to facilitate requests for active and inactive status on the Vessel Register. A business email address would be required to assist in communications between NMFS and vessel owners. NMFS would not specify which notification method to use in sending requests for active status or requests under the aging fleet provision to the NMFS West Coast Regional Administrator. Written notification requirements not calling for payment of the vessel assessment fee or not relating to permit applications would be directed to the Highly Migratory Species (HMS) Branch of the NMFS West Coast Region to facilitate communication. The HMS Branch definition in 50 CFR 300.21 would be amended to include the branch email address, wcr.hms@noaa.gov .

The proposed rule would amend text in 50 CFR 300.22(b)(7) to clarify that the capacity of inactive vessels is counted towards the U.S. capacity limit, for reasons explained above. Text in 50 CFR 300.22(b)(1) would also be amended to clarify that the vessel capacity of a purse seine vessel that is permitted and authorized under an alternative international tuna purse seine fisheries management regime in the Pacific Ocean and authorized to exercise an option to fish with purse seine gear to target tuna in the Convention Area is not counted towards the U.S. capacity limit. The proposed rule would further clarify that any vessel exercising this single trip exception must follow the procedures, where applicable, as described in 50 CFR 300.22(b)(4).

The proposed rule would also remove the phrase “Eastern Pacific Fisheries” in the subheadings of current sections 50 CFR 300.22 and 50 CFR 300.23, because 50 CFR part 300, subpart C, is specific to eastern Pacific tuna fisheries.

The proposed rule would also reorganize, and make changes to, the existing text at 50 CFR 300.22(b)(4) and 50 CFR 300.22(b)(7) to implement changes to the purse seine Vessel Register listing and procedures for replacing purse seine vessels removed from the Vessel Register, as described above.

The NMFS Assistant Administrator has determined that this proposed rule is consistent with the Tuna Conventions Act and other applicable laws, subject to further consideration after public comment.

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

This proposed rule contains collection-of-information requirements subject to review and approval by the Office of Management and Budget (OMB) under the Paperwork Reduction Act (PRA) under control number 0648-0387. A request for revision to account for the additional information and updated notification requirements that would be required pursuant to this rule is under OMB review. Public reporting burden for obtaining an IMO number, for making an IMO exemption request, for making a sunk status request, and for making an aging fleet provision request, are each estimated to average 30 minutes per response. This includes time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. Public reporting burden for requesting utilization of a cross-endorsed observer is estimated to add two minutes to the vessel departure notification requirement, which is estimated to average 10 minutes per response.

NMFS is seeking public comment regarding: Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; the accuracy of the burden estimate; ways to enhance the quality, utility, and clarity of the information to be collected; and ways to minimize the burden of the collection of information, including through the use of automated collection techniques or other forms of information technology. Comments on these or any other aspects of the collection of information should be sent to the NMFS West Coast Region Long Beach Office at the addresses above, by email to OIRA_Submission@omb.eop.gov, or by fax to (202) 395-5806.

Notwithstanding any other provision of the law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB Control Number. All currently approved NOAA collections of information may be viewed at: http://www.cio.noaa.gov/services_programs/prasubs.html.

Pursuant to the Regulatory Flexibility Act, 5 U.S.C. 605(b), the Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration (SBA) that this proposed rule, if adopted, would not have a significant economic impact on a substantial number of small entities. The rationale for the certification is provided in the following paragraphs.

As described previously in the SUPPLEMENTARY INFORMATION section, the proposed regulations would implement IATTC Resolution C-18-06, which would establish IMO number requirements, and amend regulations governing the management of purse seine well capacity and bycatch in the Convention Area.

The SBA defines a “small business” (or “small entity”) as one with annual revenue that meets or is below an established size standard. On December 29, 2015, NMFS issued a final rule establishing a small business size standard of $11 million in annual gross receipts for all businesses primarily engaged in the commercial fishing industry (NAICS 11411), for Regulatory Flexibility Act (RFA) compliance purposes only (80 FR 81194, December 29, 2015; 50 CFR 200.2). The $11 million standard became effective on July 1, 2016, and is to be used in place of the U.S. SBA current standards of $20.5 million, $5.5 million, and $7.5 million for the finfish (NAICS 114111), shellfish (NAICS 114112), and other marine fishing (NAICS 114119) sectors of the U.S. commercial fishing industry in all NMFS rules subject to the RFA. The new standard results in fewer commercial finfish businesses being considered small.

NMFS prepared analyses for this regulatory action in light of the NMFS size standard for the commercial fishing industry. All of the entities directly regulated by this regulatory action are commercial finfish fishing businesses. Using the NMFS size standards, NMFS found that the action on purse seine Vessel Register and incidental catch applies to large and small businesses and the action on the IMO number applies to only small businesses.

There are two components to the U.S. tuna purse seine fishery in the EPO: (1) Large purse seine vessels with a carrying capacity of more than 362.8 mt, typically based in the western and central Pacific Ocean (WCPO) and also in Ecuador; and (2) small purse seine vessels based on the U.S. West Coast. In addition to the U.S. purse seine fishery, U.S. tuna longline, troll, and bait boat fisheries exist on the high seas in the EPO.

As of March 2019, there are 18 U.S. large purse seine vessels on the Vessel Register, listed as either active or inactive. The number of large purse seine vessels on the Vessel Register has increased substantially in the past five years. This was due in part to uncertainty regarding fishing access pursuant to the Treaty on Fisheries between the Governments of Certain Pacific Island States and the Government of the United States of America (the South Pacific Tuna Treaty). Negotiations for an amended South Pacific Tuna Treaty were concluded in 2016. In 2018, sixteen large purse seine vessels went on 38 fishing trips during which some part of the fishing activity occurred in the EPO. Large purse seine vessels land most of the yellowfin, skipjack, and bigeye tuna catch in the EPO. Ex-vessel price information for large purse seine vessels that fished exclusively in the EPO in 2018 is not available to NMFS, because these vessels did not land on the U.S. West Coast, and the cannery receipts are not available through the IATTC. However, estimates for ex-vessel price information for large purse seine vessels based in the WCPO that fish in both the EPO and WCPO may be used as a proxy for U.S. large purse seine vessels. The number of these U.S. purse seine vessels is approximated by the number with Western and Central Pacific Fisheries Commission (WCPFC) Area Endorsements, which are the NMFS-issued authorizations required to fish commercially for tuna and tuna-like species on the high seas in the WCPFC Convention Area. As of March 2019, the number of purse seine vessels with WCPFC Area Endorsements was 33. Neither gross receipts nor ex-vessel price information specific to individual fishing vessels fishing in the WCPO and EPO are available to NMFS, so NMFS applied indicative regional cannery prices of the WCPO—as approximations of ex-vessel prices—to annual catches of individual vessels to estimate their annual receipts. Indicative regional cannery prices are available through 2014 (developed by the Pacific Islands Forum Fisheries Agency; available at https://www.ffa.int/node/425 ). NMFS estimated vessels' annual receipts during 2012 through 2014. Using this approach, NMFS estimates that among the affected vessels, the range in annual average receipts per vessel in 2012 through 2014 was $3 million to $20 million and the median was about $13 million.

Based on the limited financial information available about the affected fishing fleets, and using individual vessels as proxies for individual businesses, NMFS believes that about half of the large vessels in the purse seine fleet are small entities as defined by the RFA. These vessels are independently owned and operated, not dominant in their fields of operation, and have annual receipts of no more than $11 million. Within the purse seine fleet, analysis of average revenue by vessel for the three years of 2014-2016 reveals that average fleet revenue was about $10.2 million, and the three-year annual averages were less than the $11 million threshold for 22 vessels in the fleet.

As of March 2019, there are 14 U.S. small purse seine vessels on the Vessel Register. Between 2016 and 2018, there were 10 U.S. small purse seine vessels fishing in the EPO for HMS. The average ex-vessel revenue of HMS since 2016 by those vessels was approximately $482,000. Based on the financial information about the affected fishing fleets, and using individual vessels as proxies for individual businesses, NMFS believes that all of the vessels in the small purse seine fleet are small entities as defined by the RFA. They are independently owned and operated, not dominant in their fields of operation, and have annual receipts of no more than $11 million.

The proposed action would require approximately 155 additional vessels fishing for tuna on the high seas in the EPO, including longline, troll, and bait boat vessels, to obtain an IMO number or request an exemption. The average revenue of vessels from the affected fleet landing on the West Coast for the three years of 2015-2017 was approximately $188,000. Using individual vessels as proxies for individual business, NMFS believes that all of these affected vessels are small entities as defined by the RFA. Complying with the IMO number requirement in this proposed action requires no out-of-pocket expenses because applications are free. The 30 minutes estimated to apply for an IMO number would not result in a significant opportunity cost to the fisherman considering it is a one-time occurrence for the life of the vessel hull. The rule is not expected to change fishery operations. Accordingly, the impact of this rule on the affected vessel owners' and operators' income is not expected to be significant.

The proposed regulation would provide a technical correction to the current regulatory fleet capacity to that which is authorized under the IATTC. The action would increase the available capacity to the U.S. purse seine fleet by 91 cubic meters, from 31,755 cubic meters to 31,866 cubic meters. This would allow for increased fishing capacity and thus, economic benefits.

The proposed amendments providing administrative changes to the regulations to facilitate notification requirements and processes for replacing and adding purse seine vessels to the Vessel Register are not likely to change fishery operations or have any economic impacts.

An aging fleet provision would create a process to allow purse seine vessel owners to replace aging vessels currently on the Vessel Register without losing the ability to have the replacement vessel be placed on the active Vessel Register. This is not likely to change the fishing practices of vessels. The revision could result in an economic benefit to vessel owners by allowing for the replacement of a vessel without the added risk of losing their vessel's active status on the Vessel Register and, with it, their access to fish and income. Because NMFS cannot predict the level of use or fleet activity, the quantitative benefit cannot be estimated.

The proposed rule would also treat as frivolous any request by a small coastal purse seine vessel for active status if that vessels did not make at least one landing of tuna caught in the Convention Area in the calendar year prior to the request through November 15 of the year in which the request is made ( i.e., a request made in 2019 to fish in 2020, would require one landing of tuna between January 1, 2018 and November 15, 2019). If a small purse seine vessel has not landed tuna caught in the Convention Area within the year before the request was made and through November 15th of the year the request was made, and requests active status on the Vessel Register for the following year ( i.e., the third consecutive year of requesting active status), the request would be considered frivolous and subject to the hierarchy of request under 50 CFR 300.22(b)(4)(i)(C). The almost two-year time frame for making a landing of tuna accounts for flexibility in availability of fish in the variable coastal environment. A frivolous request provision for large purse seine vessels already exists; this amendment would align with the intent of the frivolous request provision while attempting to fairly apply the provision to purse seine vessels of all sizes. Since 2011, the average number of days between tuna-related fishing trips by small purse seine vessels averaged just over one year, and vessels which fished for more than one year fished for tuna approximately every 1.75 years. As of September 2018, approximately 8 vessels have not met the requirement for landings over the past two calendar years. Because these vessels are participating in, and have access to, other fisheries, this action is not likely to change fleet behavior and is not likely to have a significant economic impact on small purse seine vessels.

The proposed regulations would limit vessels to holding inactive and sunk status for a period of two consecutive years, after which their request for inclusion on the Vessel Register would be considered as a frivolous request in the prioritization of requests. In keeping with the intent of the frivolous request provisions, the action would limit vessels from indefinitely holding capacity from vessels requesting to actively fish in the EPO, while still allowing an appropriate amount of time for inactive and sunk vessels to be repaired or replaced. One vessel has been listed as inactive on the Vessel Register since 2015, occupying 1,523 cubic meters of fishing capacity. Allowing active vessels to replace inactive and sunk vessels that are holding capacity would open capacity for use by vessels requesting to actively fish. This would allow additional vessels to benefit economically through utilization of the capacity, though it is not necessarily known that unutilized capacity would be filled.

The provision in this proposed rule to supplement the vessel departure notification requirement with a statement requesting the use of a cross-endorsed observer, pursuant to an MOC between the IATTC and WCPFC, is not expected to impact fisheries operations. The request would facilitate coordination among the vessels, NMFS, and the IATTC for placement of observers, and may provide an economic benefit by reducing delays in vessel operations.

The provision in this proposed rule to revise current provisions on prohibitions and non-target incidental catch are not likely to substantially change fishery operations nor substantially increase economic impacts. Between 1995 and 2004, the year Resolution C-04-05 was adopted, the average annual landings of Pacific bonito and black skipjack, which are two important non-tuna species, was 138 mt by large purse seiners and 246 mt by small purse seine vessels.

This proposed rule is not expected to have a significant economic impact on a substantial number of small entities. The entities for which this proposed rule would apply are considered large businesses and small businesses; however, disproportional economic effects are not expected between small and large businesses.

The proposed actions are not expected to substantially change the typical fishing practices of affected vessels, or to significantly affect income of U.S. vessels, and therefore will not have a significant economic impact on a substantial number of small entities. As a result, an Initial Regulatory Flexibility Analysis is not required and was not prepared for this proposed rule.

For the reasons set out in the preamble, 50 CFR parts 216 and 300 are proposed to be amended as follows:

I. Authority for Action

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

Pacific halibut ( Hippoglossus stenolepis ) is fully utilized in Alaska as a target species in subsistence, personal use, recreational (sport), and commercial halibut fisheries. Halibut has significant social, cultural, and economic importance to fishery participants and fishing communities throughout the geographical range of the resource. Halibut is also incidentally taken as bycatch in groundfish fisheries. The Magnuson-Stevens Act defines bycatch as “fish which are harvested in a fishery, but which are not sold or kept for personal use, and includes economic discards and regulatory discards. The term does not include fish released alive under a recreational catch and release fishery management program.” 16 U.S.C 1802 3(2).

The International Pacific Halibut Commission (IPHC) and NMFS manage halibut fisheries through regulations established under the authority of the Northern Pacific Halibut Act of 1982 (Halibut Act) (16 U.S.C. 773-773k). The IPHC adopts regulations governing the target fishery for halibut under the Convention between the United States and Canada for the Preservation of the Halibut Fishery of the North Pacific Ocean and Bering Sea (Convention), signed at Ottawa, Ontario, on March 2, 1953, as amended by a Protocol Amending the Convention (signed at Washington, DC, on March 29, 1979). For the United States, regulations governing the fishery for Pacific halibut developed by the IPHC are subject to acceptance by the Secretary of State with concurrence from the Secretary of Commerce. After acceptance by the Secretary of State and the Secretary of Commerce, NMFS publishes the IPHC regulations in the Federal Register as annual management measures pursuant to 50 CFR 300.62. The final rule implementing IPHC regulations for 2019 published on March 14, 2019 (84 FR 9243).

Section 773c(c) of the Halibut Act also provides the Council with authority to develop regulations that are in addition to, and not in conflict with, approved IPHC regulations. The Council has exercised this authority in the development of Federal regulations for the halibut fishery such as (1) subsistence halibut fishery management measures, codified at § 300.65; (2) the limited access program for charter vessels in the guided sport fishery, codified at § 300.67; and (3) the Individual Fishing Quota (IFQ) Program for the commercial halibut and sablefish fisheries, codified at 50 CFR part 679, under the authority of section 773c(c) of the Halibut Act and section 303(b) of the Magnuson-Stevens Act.

NMFS has implemented regulations that limit the amount of halibut bycatch in the directed groundfish fisheries in the BSAI and GOA. Regulations establish specific limits on the amount of halibut bycatch, PSC limits, in specific groundfish fisheries in the BSAI and GOA. These PSC limits are based on the amount of halibut discard mortality estimated under specific monitoring procedures. NMFS has implemented halibut PSC limits consistent with the requirements of the Magnuson-Stevens Act to minimize bycatch to the extent practicable while achieving, on a continuing basis, optimum yield from the groundfish fisheries.

In recent years, catch limits for the commercial halibut fishery in the BSAI and GOA have declined in response to changing halibut stock conditions. Most recently, NMFS implemented Amendment 111 to the BSAI FMP (81 FR 24714, April 27, 2016), and Amendment 95 to the GOA FMP (79 FR 9625, February 20, 2014), to further reduce PSC limits for Pacific halibut in the BSAI and GOA groundfish fisheries.

NFMS proposes regulations to implement catch handling and monitoring requirements to allow halibut bycatch to be sorted on the deck of trawl catcher/processors (CPs) and motherships when operating in the non-pollock groundfish fisheries off Alaska. The monitoring requirements included in this action have been developed and tested on vessels participating in the non-pollock groundfish fisheries. The harvest of non-pollock groundfish fisheries may be limited by existing halibut PSC limits and participating vessels are operationally different than vessels participating in pollock fisheries. As such, the scope of this action is limited to vessels participating in the non-pollock groundfish fisheries. This proposed rule would not modify existing halibut PSC limits, but it would allow halibut to be discarded faster than current monitoring requirements allow which could reduce halibut discard mortality. Reducing halibut discard mortality could maximize prosecution of the directed non-pollock groundfish fisheries that otherwise might be constrained by restrictive halibut PSC limits, and may also benefit vessels participating in the directed halibut fishery by returning more live halibut to the water.

This proposed rule would allow three categories of CPs and motherships to participate in deck sorting in the non-pollock groundfish fisheries. This proposed rule would allow deck sorting for: (1) Vessels operating in the non-pollock groundfish fisheries in the BSAI and GOA under the Amendment 80 Program (72 FR 52667, September 14, 2007), also referred to as the Amendment 80 sector, (2) vessels harvesting non-pollock groundfish in the BSAI under the Western Alaska Community Development Quota Program (CDQ Program, also referred to as the CDQ Sector), and (3) CPs and motherships harvesting non-pollock groundfish in the BSAI trawl limited access sector (TLAS). The term “mothership” is defined in regulation at § 679.2, and it includes vessels that receive catch from other vessels. See section 3 of the Analysis for a detailed description of the affected fisheries. The following sections provide descriptions of (1) the affected fisheries and halibut PSC management; (2) current monitoring requirements; (3) the need for this action; and (4) the proposed rule.

This action would be applicable to CPs and motherships using trawl gear in the non-pollock groundfish fisheries off Alaska. This includes vessels participating in the Amendment 80 sector, BSAI TLAS, and the CDQ Sector. Existing monitoring requirements such as observer coverage, video monitoring systems, and other requirements for the affected vessels are described at §§ 679.28, 679.32, 679.51, 679.63, 679.84, and 679.93. The following section describes the affected fisheries and halibut PSC management.

The BSAI non-pollock groundfish fishery has been prosecuted mostly by a fleet of trawl CPs. These CPs are managed under the Amendment 80 Program. The Amendment 80 Program is a catch share program that allocates several BSAI non-pollock trawl species among fishing sectors, and facilitates the formation of harvesting cooperatives in the non-American Fisheries Act (AFA) trawl CP sector. The AFA is a limited access program for Bering Sea pollock implemented by statute in 1998 (Pub. L. 105-277, 16 U.S.C. 1851 statutory note).

The Amendment 80 sector is composed of 28 CPs with history of harvesting non-pollock groundfish in the BSAI. Species allocated to the Amendment 80 sector include: Aleutian Islands Pacific ocean perch, BSAI Atka mackerel, BSAI flathead sole, BSAI Pacific cod, BSAI rock sole, and BSAI yellowfin sole. In addition, the Amendment 80 cooperatives and vessels receive allocations of Pacific halibut and crab PSC limits for use while fishing in the BSAI to constrain bycatch, or unintended take, of these species while harvesting groundfish. Amendment 80 allocates the six target species and five prohibited species in the BSAI to the CP sector and allows qualified vessels to form cooperatives. These voluntary harvest cooperatives coordinate use of the target allocations, incidental catch allowances, and prohibited species allocations among active member vessels. Detailed information on the Amendment 80 Program is available in the final rule implementing the program (72 FR 52667, September 14, 2007), and at the Alaska Region website: ( https://alaskafisheries.noaa.gov/fisheries/amendment-80 ).

Some Amendment 80 vessels also participate in the Central GOA Rockfish Program (Rockfish Program). This rule proposes that these vessels would be able to deck sort halibut PSC while participating in the Rockfish Program. The Rockfish Program is a limited access privilege program established under section 303A of the Magnuson-Stevens Act (76 FR 81248, December 27, 2011). As described later in this preamble, some of the provisions in this proposed rule would also affect monitoring provisions applicable to CPs participating in the Rockfish Program. Detailed information on the Rockfish Program is available in the final rule implementing the program (76 FR 81248, December 27, 2011), and at the Alaska Region website: ( https://alaskafisheries.noaa.gov/fisheries/central-goa-rockfish-program ).

When the Amendment 80 Program was implemented, it allocated specific amounts of non-pollock Amendment 80 species, including PSC species, to non-Amendment 80 vessels that that comprise the BSAI TLAS. The BSAI TLAS includes AFA CPs, AFA catcher vessels (CVs), and other non-AFA CVs. The BSAI TLAS comprises all the trawl vessels in the BSAI except the Amendment 80 CPs. The BSAI TLAS fishery provides harvesting opportunities of some Amendment 80 species by non-Amendment 80 vessels.

Each year, NMFS allocates an amount of each Amendment 80 target species available for harvest, called the initial allowable catch, and crab and halibut PSC to the Amendment 80 sector and the BSAI TLAS sector, with the TLAS allocations representing a small proportion of overall allocation of Amendment 80 species. NMFS apportions the BSAI TLAS sector's PSC limit into PSC allowances among the following trawl fishery categories: (1) Yellowfin sole fishery, (2) rock sole/flathead sole/ “other flatfish” fishery, (3) Greenland turbot/arrowtooth flounder/Kamchatka flounder/sablefish fishery, (4) rockfish fishery, (5) Pacific cod fishery, and (6) pollock/Atka mackerel/“other species” fishery, which includes the midwater pollock fishery.

Under this proposed rule, AFA vessels would not be eligible to participate in halibut deck sorting when operating in pollock fisheries. However, vessels participating in the BSAI TLAS fishery—which may include AFA vessels—may choose to participate in halibut deck sorting when operating in non-pollock fisheries in the BSAI TLAS. Detailed information on the BSAI TLAS is available in the final rule implementing the Amendment 80 Program (72 FR 52667, September 14, 2007), and at the Alaska Region website: ( https://alaskafisheries.noaa.gov/fisheries/amendment-80 ).

The CDQ sector includes all trawl and non-trawl vessels that harvest groundfish under the CDQ Program. The CDQ Program consists of six different non-profit managing organizations (CDQ groups) representing different geographical regions in Alaska. The CDQ Program receives annual allocations of TAC for a variety of commercially valuable species in the BSAI groundfish, crab, and halibut fisheries, which are then allocated among the CDQ groups. The halibut PSC limit is divided among the six CDQ groups by established percentages (71 FR 51804, August 31, 2006). Each CDQ group receives an apportionment of this halibut PSC limit as halibut prohibited species quota (PSQ), which is a specific amount of halibut that vessels fishing for that CDQ group may use in a year. The CDQ group manages the use of its halibut PSQ apportionment. The CDQ group has the responsibility to ensure that the vessels fishing its CDQ groundfish allocation do not use halibut PSQ in excess of the amount of the CDQ group's halibut PSQ. This limit is enforced at § 679.7(d)(3), which prohibits a CDQ group from exceeding its apportionment of halibut PSQ. Detailed information on the CDQ Program is at the Alaska Region website: ( https://alaskafisheries.noaa.gov/fisheries/cdq ).

Table 2b to 50 CFR part 679 and § 679.2 define halibut caught incidentally to directed fishing for groundfish as PSC. Halibut PSC in the directed groundfish fisheries of the GOA and BSAI are regulated under § 679.21. These regulations require that all vessels minimize catch of prohibited species and that all vessels discard PSC with a minimum of injury after allowing for sampling by an observer. NMFS established requirements to discard halibut caught with trawl gear in 1977 (42 FR 9297, February 15, 1977). These requirements are intended to minimize the incidental catch of halibut in the trawl fisheries, as well as minimize the mortality of discarded halibut. NMFS requirements are also consistent with long-standing regulations adopted by the IPHC that prohibit the retention of halibut by trawl (see 2018 Annual Management Measures found at: https://iphc.int/uploads/pdf/regs/iphc-2018-regs.pdf ).

Although participants in the non-pollock groundfish fisheries are under an obligation to avoid halibut, all halibut cannot be avoided. The groundfish fisheries cannot be prosecuted without some amount of halibut PSC because groundfish and halibut occur in the same areas at the same times and because no fishing gear or technique has been developed that can avoid all halibut PSC. NMFS manages halibut PSC in the BSAI groundfish fisheries by (1) establishing halibut PSC limits for trawl and non-trawl fisheries; (2) apportioning those halibut PSC limits among groundfish sectors, fishery categories, and seasons; and (3) managing groundfish fisheries to prevent halibut PSC use from exceeding the established limits.

While halibut is taken as bycatch by vessels using all types of gear (trawl, hook-and-line, pot, and jig), halibut bycatch in the BSAI primarily occurs in the groundfish fisheries using hook-and-line and trawl gear. Though halibut bycatch occurs in both the GOA and the BSAI, the greatest portion by weight of halibut bycatch occurs in the BSAI.

To monitor halibut PSC limits and apportionments, the Regional Administrator uses observer data on halibut incidental catch rates, halibut discard mortality rates (DMRs), and estimates of groundfish catch to project when a fishery's halibut PSC limit or seasonal apportionment is reached. Halibut incidental catch rates (weight of halibut caught per weight of groundfish total catch) are based on estimates derived from observer data of halibut incidental catch in the groundfish fisheries. DMRs are estimates of the proportion of incidentally caught halibut that will not survive after being returned to the sea with values ranging from 0% (all halibut survived) to 100% (no halibut survived). DMRs are calculated annually on a fleet-wide basis using methodology developed by NMFS, the IPHC, and in consultation with the Council. DMRs are published in harvest specification tables in the Federal Register . For a given haul, the appropriate DMR is applied based on gear, sector, and year. The cumulative halibut mortality that accrues to a particular halibut PSC limit is the product of a DMR multiplied by the estimated halibut PSC. See section 1.3.2 of the Analysis for additional detail about the DMR estimation process.

To minimize halibut mortality, NMFS requires that all halibut must be returned to the sea as soon as possible after they have been sampled by observers. However, current regulations require observers onboard trawl CPs and motherships to complete data collection duties in the factory of the vessel after the unsorted catch has been weighed on a motion compensated at-sea flow scale (flow scale). Halibut mortality increases with increased handling and time out of water (see section 1.3.5 of the Analysis for additional detail). In the non-pollock groundfish fisheries most of the halibut are typically out of the water for long periods of time, such as 3 to 4 hours in some cases, and are usually dead or in poor viability condition at the time of discard after weighing and sorting in the factory. This results in high halibut DMRs for the non-pollock groundfish fishery, which in turn, results in high halibut PSC mortality estimates.

NMFS uses observer data to provide reliable estimates of allocated species in catch share and reliable estimates of total catch and bycatch in non-catch share fisheries. Since 1999 with the implementation of the CDQ Program, closely followed by the implementation of AFA Program in 2002, NMFS has consistently imposed additional monitoring requirements on vessels participating in groundfish catch share programs. These monitoring requirements are necessary because of the unique incentives to misreport catch that are created by the act of assigning quota and therefore accountability to individual entities (cooperatives or vessels). Vessels affected by this action participate in catch share and non-catch share fisheries including Amendment 80 Program, BSAI TLAS, and the groundfish CDQ fisheries. Observer information is used in the NMFS Catch Accounting System to monitor catch of target and bycatch species on a daily basis. Current monitoring requirements for CPs and motherships participating in the non-pollock groundfish fisheries off Alaska vary, depending upon the specific fishery in which the vessel is participating. Each catch share program includes monitoring requirements designed to ensure that observer data produce reliable catch and bycatch estimates of allocated species. Catch monitoring regulations applicable to vessels participating in the non-pollock groundfish directed fisheries are found at §§ 679.28, 679.32, 679.51, 679.63, 679.84, and 679.93, and are summarized in the following sections of this preamble.

Observers have sampled catch in the Alaska Federal groundfish fisheries since the early 1990s and have routinely collected lengths, weights, and viability metrics of the sampled catch. Amendment 80 CPs, CPs acting as motherships, and CPs managed under the Rockfish Program are required to carry two observers, one of which must have a lead level 2 endorsement for a CP using trawl gear or mothership. The current workload restriction defined at 679.51(a)(2)(iii) state that an observer's workload may not exceed 12 consecutive hours in a 24-hour period. If vessel operations require an observer to work more than 12 consecutive hours to complete sampling and data entry duties, additional observers are required. Motherships and CPs fishing in the BSAI TLAS must also meet these same observer coverage requirements. However, CPs that choose to opt out of the Rockfish Program and Amendment 80 CPs fishing under sideboards in the GOA are required to carry only one observer. This observer follows a random sampling table to determine which hauls to sample.

Before catch is sorted or discarded on any trawl vessel, at-sea observers must collect data necessary to estimate halibut and groundfish catch amounts. Regulations in 50 CFR part 679 are designed to ensure that observer data result in reliable estimates of halibut and groundfish catch, and that potential bias is minimized. For example, NMFS requires fishing vessels to make all catch available for sampling by an observer; prohibits vessel crew from tampering with observer samples; prohibits vessel crew from removing halibut from a codend, bin, or conveyance system prior to being observed and counted by an at-sea observer; and prohibits fish (including halibut) from remaining on deck unless an observer is present.

Current halibut discard requirements state that an observer must first have access to sample the catch prior to sorting and discard. The specific point of discard and catch handling procedures may vary depending on each vessel's deck configuration. However, since the implementation of monitoring requirements for the Amendment 80 Program and the Rockfish Program, vessels are generally allowed only one operational line for the mechanized movement of fish from the flow scale used to weigh catch and the location where the observer collects species composition samples.

Observers sample the species composition of catch and NMFS estimates the ratio of halibut to groundfish from each haul sampled and applies it to the official total catch of groundfish for each sampled haul. NMFS applies a consistent process to determine which halibut catch rates apply to which hauls based on vessel type, whether sampled hauls occurred on the same vessel, processing sector, nearness in time, trip target, gear type, FMP area, reporting area, special areas, management program, and observer sampling method. These factors are applied to algorithms to give a rate of incidentally caught halibut to every haul. This rate is then applied to the official total catch of each haul. Once the estimated halibut catch for every haul is calculated, DMRs are applied to calculate the amount of halibut PSC mortality accrued. See sections 1.3.2 and 4.1 of the Analysis for more detail on DMR estimation and observer coverage requirements.

Vessel owners and operators of Amendment 80 CPs are required to notify the North Pacific Observer Program (Observer Program) at least 24 hours prior to departure on a trip with an observer who has not deployed on that vessel in the last 12 months. This allows the Observer Program to schedule a pre-cruise meeting between the observer and vessel operator or manager and adequately prepare the observer(s) to successfully collect the high quality data necessary for fisheries management.

Pre-cruise meetings provide an opportunity for vessel crew and observers to discuss sampling and vessel operations prior to embarking on a trip. Pre-cruise meetings can help improve data quality, reduce conflicts between observers and vessel crew, and can assist vessel operators and managers to comply with observer related regulations.

Flow scales are required to be used in the Amendment 80 and CDQ Program fisheries, and on motherships and CPs in the BSAI TLAS fishery. Typically, flow scales are installed in the vessel's fish processing area, below the deck. Flow scales allow all catch to be weighed. Because observer samples are extrapolated to the entire haul, catch from each haul is weighed separately on the scale. To facilitate separate weighing, catch from each haul cannot be mixed with other hauls.

Vessels are also required to provide an observer sampling station where an observer can work safely and effectively. Stations must meet specifications for size and location and must be equipped with a motion-compensated platform scale, a table, adequate lighting, floor grating, and running water. Additionally, the observer sampling station must have room to store at least ten observer sampling baskets. These vessels must also have only one operational line for the mechanized movement of catch to ensure that the observer has access to the entire catch to collect species composition samples.

Vessels subject to Amendment 80 sideboards in the GOA as specified at 679.92(b), as well as those vessels that opt out of the Rockfish Program, are not required to use a flow scale or have an observer sampling station. These vessels are prohibited from mixing hauls (combine the catch of two or more individual hauls) and must only have one operational line for the mechanized movement of catch. This is to ensure that observer data collected is appropriately attributed to each haul. However, most vessels subject to the sideboards in the GOA do continue to use the flow scale and make the observer sampling station available for use by the observer.

All CPs and motherships required to use a flow scale must have a video monitoring system that shows all areas where catch moves across the flow scale, any access point to the scale that may be adjusted by vessel crew, and the scale display and fault light. These vessels are also required to have a video monitor available to NMFS observer.

CPs and motherships participating in Amendment 80 fisheries may choose video monitoring of the inside of fish bins as one method of ensuring that catch is not selectively sorted inside the bins prior to observer sampling. This video is used to ensure that fish, including halibut, are not pre-sorted from the catch prior to observer sampling. These vessels are required to have a video monitor available at the observer sampling station.

AFA CPs and motherships that participate in the BSAI TLAS are required to have video monitoring of all areas where salmon are sorted from the catch, of all crew actions in these areas, and provide a view of the salmon storage container. The video is used to ensure that all salmon are available to the observer to conduct a census of salmon at the end of each haul. These vessels are also required to have a monitor available in the observer sampling station. System specifications for video monitoring requirements are detailed at § 679.28(e).

Amendment 111 to the BSAI FMP, published on April 27, 2016 (81 FR 24714), reduced halibut PSC limits in the BSAI groundfish fisheries in four groundfish sectors: The Amendment 80 sector; the BSAI TLAS (all non-Amendment 80 trawl fishery participants); the non-trawl sector (primarily hook-and-line CPs); and the CDQ Program. The purpose of Amendment 111 was to decrease BSAI halibut PSC to the extent practicable by the BSAI groundfish fisheries while continually achieving optimum yield from the BSAI groundfish fisheries. Although halibut bycatch is not believed to have significant impact on halibut stock status since most incidentally caught halibut from the BSAI Groundfish fisheries are relatively small (under 26 inches), the loss of many small individuals does impact the future number of larger halibut (over 26 inches) that are available to the directed halibut fishery (80 FR 71649, November 16, 2015).

Similarly, Amendment 95 to the GOA FMP, published on March 24, 2014 (79 FR 9625), reduced halibut PSC limits in the GOA groundfish fisheries in three sectors: The hook-and-line CP sector, the hook-and-line catcher vessel (CV) sector, and the trawl sector. The purpose of Amendment 95 was to minimize halibut bycatch in the GOA in the extent practicable, while at the same time achieving optimum yield from the GOA groundfish fishery.

By reducing halibut PSC, the final rules for Amendment 111 and Amendment 95 aimed to increase harvest opportunities for the directed halibut fisheries. However, these reductions increased the potential for the halibut PSC limit to constrain the harvest of allocated species in groundfish fisheries, thereby potentially reducing the overall economic benefit of the fisheries if the directed fisheries would be closed prior to harvesting all the allocated species.

Under current monitoring requirements for most vessels participating in the non-pollock groundfish fisheries, all halibut must be weighed along with the rest of the unsorted catch and made available for sampling by an observer prior to discard. This means that all halibut enter the fish bin and are weighed in the factory prior to observer data collection and discard, resulting in high DMRs. For several years, experiments conducted through Exempted Fishing Permits (EFPs) have tested procedures to reduce halibut discard mortality by sorting, collecting observer data, and discarding halibut from the deck of trawl CPs and motherships. The data collected during EFP fishing showed that the practice of deck sorting reduces halibut discard mortality. Results from these EFPs suggest that substantial amounts of halibut can be returned to the water and provide for additional harvest opportunity for the directed halibut fisheries. See section 1.3.5 of the Analysis for additional detail on halibut deck sorting EFPs.

In order to accurately account for halibut sorted on deck during EFP fishing, additional catch handling and monitoring requirements were necessary to ensure that an observer has access to all halibut sorted on deck as well as all other catch in the factory for the collection of data and sampling. These requirements were necessary to ensure that observer data resulted in reliable estimates of catch and bycatch as well as mitigated safety risks due to additional time spent on deck.

NMFS also considered the costs and benefits of not implementing formal halibut deck sorting regulations. Under this alternative measure, current fisheries management and operation would remain unchanged. Halibut deck sorting could still be permitted under an EFP, provided that participating vessels adhered to the additional monitoring requirements required under the EFP. However, the purpose of an EFP is not to provide long-term management solutions. Rather, EFPs are meant to be short-term and to facilitate exploration of innovative or novel practices that may benefit fishery management practice. Deck sorting EFP renewals and annual reauthorizations are not guaranteed and it is unlikely that the deck sorting EFP could continue indefinitely. In addition, participation in the halibut deck sorting and monitoring activities outlined in this proposed regulation is voluntary, allowing industry the flexibility to assess economic conditions and to conduct halibut deck sorting when the benefits of reduced mortality provide valuable fishing opportunity that outweigh the operational cost of halibut deck sorting.

This proposed rule would implement catch handling and monitoring requirements to allow halibut PSC to be sorted on the deck of trawl CPs and motherships participating in the non-pollock groundfish fisheries off Alaska. NMFS and EFP participants worked together to develop the monitoring and enforcement requirements required during EFP fishing and included in this proposed rule. These requirements build upon existing monitoring and enforcement requirements (described in the Current Monitoring Requirements section of this proposed rule), and are designed to allow halibut to be returned to the sea more quickly while also ensuring that observer data continue to result in reliable estimates of halibut incidental catch rate and viability. This proposed rule draws on the lessons learned from halibut deck sorting EFP activities to develop monitoring requirements and observer sampling protocols for halibut deck sorting (See sections 2.2 and 4.1 of the Analysis for additional detail). Participation in halibut deck sorting would be voluntary. However, any vessel choosing to participate in halibut deck sorting would be required to comply with all applicable monitoring requirements.

This proposed rule would add subpart K, § 679.120—Halibut Deck Sorting, to part 679 to specify halibut deck sorting catch handling and monitoring requirements. Additionally, existing catch handling and monitoring regulations would be modified as necessary to be consistent with the catch handling and monitoring requirements included in this proposed rule. The catch handling and monitoring requirement included in this proposed rule were developed and tested under halibut deck sorting EFPs since 2009 (see section 1.3.5 of the Analysis for additional detail). In addition to the primary action, this would also make changes to observer sampling station inspection requirements in Federal groundfish fisheries and minor changes to bin monitoring requirements in the Amendment 80 fleet. The proposed rule would also make minor changes in terminology, reorganize regulatory text, and make other technical changes.

This proposed rule would define the term “Halibut Deck Sorting” at § 679.2. The term “Halibut Deck Sorting” is used to specify the activity of separating or removing halibut from the catch on deck, prior to fish entering the fish bin.

This proposed rule would specify observer coverage requirements for vessels participating in halibut deck sorting at § 679.51(a)(2)(vi)(F). Vessels would be required to carry on board at least two observers at all times when participating in halibut deck sorting. One of these observers must be endorsed as a lead level 2 observer and additional observers would be required if an observer's workload restriction would otherwise preclude sampling as required. Although this level of observer coverage is already a requirement for most vessels participating in the non-pollock groundfish fisheries, this proposed rule would require all vessels choosing to participate in halibut deck sorting to maintain this level of observer coverage. This requirement is necessary to ensure at least one experienced observer is deployed on a vessel when halibut deck sorting due to added difficulty and increase in observer duties associated with halibut deck sorting.

This proposed rule would establish prohibitions specific to halibut deck sorting at § 679.7(e). These regulations would specify that when a vessel participates in halibut deck sorting, fish must not be spilled from the codend, halibut must not be sorted, discarded, or weighed on a NMFS-approved scale unless an observer is present on deck and the vessel is in compliance with the requirements of § 679.120, which describe the vessel, crew, and catch handling and monitoring requirements for participation in halibut deck sorting. In addition, § 679.7(e) would prohibit catch from being weighed on flow scales when the observer is monitoring halibut deck sorting, unless three or more observers are present on the vessel and at least two observers are on duty. In these circumstances, one observer would monitor deck-sorting while another observer would monitor the flow scale in the factory. These regulations are necessary to ensure that an observer has access to all catch to complete data collection duties on deck and in the factory as specified in the Observer Sampling Manual.

Vessel owners and operators who choose to halibut deck sort would be required to notify the Observer Program to schedule a pre-cruise meeting when they have an observer onboard who has not previously been onboard within the last 12 months. This meeting must minimally include the vessel operator or manager and any observer(s) assigned to the vessel. The pre-cruise meeting is intended to familiarize the observer(s) with key vessel crew, discuss vessel operations, and talk through sample locations, as well as to get answers to sampling questions from NFMS staff before the vessel gets under way. In addition, the pre-cruise meeting would provide an opportunity to discuss any issues with Deck Safety Plans (described below) and the vessel crew's reasonable assistance necessary to allow an observer to sample halibut prior to departing on a trip.

This proposed rule would add requirements at § 679.120(d) to establish a Deck Safety Plan. Vessel owners and operators would be required to develop an approved Deck Safety Plan prior to participating in halibut deck sorting. This Deck Safety Plan would be approved annually by NMFS. If the vessel owner or operator wished change an existing Deck Safety Plan, the vessel owner or operator would be required to be submit proposed changes in writing and any changes would have to be approved by NMFS. Mandatory components of this Deck Safety Plan would include: A description of safe routes for the observer to access and/or leave the deck sampling station during gear retrieval and movement; description of hazardous areas and potentially hazardous conditions on deck the observer should be aware of; a list of personal protective equipment that must be worn by the observer while on deck; and a description of communication procedures to inform the observer when it is safe to access the deck, in order to ensure that the observer remains safe while working on the deck.

Vessel owners and operators would also be required to provide observers with a copy of the NMFS-approved Deck Safety Plan and conduct a deck sorting safety meeting prior to embarking on a trip when any one of the following—observer, vessel operator, or key crew member that will be responsible for providing notification or reasonable assistance during halibut deck sorting—boards the vessel. All elements of the vessel's Deck Safety Plan would be reviewed with the observer during this meeting.

If NMFS disapproves a Deck Safety Plan, the vessel owner and operator may resubmit a revised Deck Safety Plan or file an administrative appeal as set forth under the administrative appeals procedures set out at 15 CFR part 906.

Proposed regulations at § 679.120 would require vessel operators to notify the observer on duty at least 15 minutes prior to bringing fish on board that halibut deck sorting will occur. From the time the vessel operator notifies the observer that halibut deck sorting will occur until the codend from that haul is opened on deck, the vessel operator may choose not to engage in halibut deck sorting. In this way, the vessel operator can choose in real time if weather or vessel conditions are suitable to engage in halibut deck sorting on a particular haul. Halibut could only be sorted on deck if an observer is present, and all halibut would be required to be transported to the observer deck sampling station via a single pathway. The single pathway from which catch is conveyed to the observer will ensure that the observer has access to all halibut removed from the catch during deck sorting activities. Catch in the factory would not be weighed during halibut deck sorting activities unless, as explained above, an additional observer is available to complete data collection duties in the factory. Vessels would be required to devise and use a visual signal to communicate to the crew when catch may not be weighed during deck sorting activities.

Each vessel's Observer Sampling Station Inspection Report would indicate the time limit for halibut deck sorting activities. The time limit may be vessel specific and would be based on factors including, but not limited to, deck space and configuration, and the best available halibut viability information. For example, a total of 30 minutes could be established for halibut deck sorting activities, which may reflect the amount of time when halibut viability is maximized. This time would begin when the codend is opened and conclude once the time limit is reached. This time limit would not exceed the time indicated on the Observer Sampling Station Inspection Report. After the time limit for halibut deck sorting is reached, all halibut not sampled by the observer on deck must be transferred to the live tank(s) and passed over the flow scale in the factory. In the future, the time limit may change in order to account for changes in vessel configuration, sampling technologies, and as new information on halibut viability becomes available. Observer Sampling Station Inspection Reports would be issued annually by NMFS.

This proposed rule would add § 679.51(e)(1)(viii)(G) to require vessel operators to provide reasonable assistance to observers during halibut deck sorting. When halibut deck sorting, vessel operators and crewmen would be required to provide halibut sorted on the deck to the observer (upon request by the observer), in order to facilitate timely sampling by the observer and reduce delays in onboard factory processing of fish.

This proposed rule would modify existing catch weighing and data sources requirements at §§ 679.32(c)(3)(i)(C)(4), 679.63(a), 679.84(c)(1), and 679.93(c)(1) to add catch weighing requirements for CPs and motherships participating in halibut deck sorting in the Amendment 80 sector, BSAI TLAS, CDQ sector, and the Rockfish Program fisheries. These modifications would remove the requirement for halibut sorted on deck to be weighed on a NMFS-approved flow scale prior to discard. Because deck-sorted halibut are discarded from the deck and are not moved to the factory, there is no opportunity for weighing on a flow scale. Thus, under these circumstances, this requirement is unnecessary.

This proposed rule would modify regulations specifying methods used for CDQ catch estimation on CPs and motherships using trawl gear at § 679.32(c)(3)(ii)(C) to accurately describe catch accounting data sources including when halibut deck sorting occurs during groundfish CDQ fishing.

This proposed rule would modify § 679.28(d)(9) to outline and define requirements for an observer deck sampling station that must be onboard motherships and CPs participating in halibut deck sorting described at § 679.120. The observer deck sampling station would be located on deck and would be required in addition to the observer sampling station in the factory. The observer deck sampling station must meet the same specifications and requirements as the observer sampling station, with the exception that the proposed rule would require vessels participating in halibut deck sorting to have only a single pathway for halibut to be conveyed to an observer at an observer deck sampling station, as well as, a single point of discard after each work table that is visible to the observer collecting the data on discarded halibut.

This proposed rule would add video monitoring requirements specific for vessels operating in halibut deck sorting at § 679.28(l). Vessels would be required to record and retain video for the entire trip where halibut deck sorting may occur for no less than 120 days after the date the video is recorded unless otherwise notified by NMFS. Vessels would also be required to maintain full video coverage of all areas where halibut may be sorted from the catch and/or discarded on deck. The number of required cameras will vary depending on vessel configuration. These additional video monitoring requirements are needed to ensure that all halibut collected from an individual haul can be tracked and accounted for once on the vessel.

This proposed rule would modify regulations at § 679.28(i)(1) to remove a monitoring provision known as Option 2—line of sight option for bin monitoring standards. This monitoring option facilitated an observer's view of fish holding bins, but is no longer used in this fishery, thus making this regulation unnecessary.

This proposed rule would modify regulations at §§ 679.28(d)(10) and 679.28(i)(5) to remove an unnecessary restriction on the duration of an observer sampling station and bin monitoring inspection and associated reports. NMFS proposes that it is not necessary to restrict the inspection to within 12 months of the date of the last inspection. Removing the requirement that restricts the validity of these inspection reports to 12 months from the date of the inspection would allow additional flexibility for the Observer Program to determine the exact length of the approval and potentially synchronize sampling station and bin monitoring inspections with other applicable equipment inspection requirements. This change could reduce the need for vessels to schedule multiple in-person inspections at different times of the year, thereby potentially reducing costs of complying with regulations.

This proposed rule would also make a number of regulatory edits to improve clarity, consistency and to remove unnecessary or out of date regulations. These modifications would have no impact on vessel operations. Paragraph § 679.28(b)(5)(v) would be removed since it describes calibration and log requirement regulations for printed reports from the fault log that were applicable to 2015 only. This proposed rule would add the word “views” when describing display requirements for cameras at §§ 679.28(e)(1)(vii) and (e)(1)(viii)(A), and would also update the website address for the NMFS Alaska Region in paragraph § 679.28(e)(2).

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

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

An RIR was prepared to assess the costs and benefits of available regulatory alternatives. A copy of this analysis is available from NMFS (see ADDRESSES ). NMFS is recommending the regulatory revisions in this proposed rule based on those measures that maximize net benefits to the Nation. Specific aspects of the economic analysis related to the impact of this proposed rule on small entities are discussed below in the Initial Regulatory Flexibility Analysis section.

This IRFA was prepared for this proposed rule, as required by section 603 of the Regulatory Flexibility Act (RFA) (5 U.S.C. 603), to describe the economic impact this proposed rule, if adopted, would have on small entities. An IRFA describes why this action is being proposed; the objectives and legal basis for the proposed rule; the number of small entities to which the proposed rule would apply; any projected reporting, recordkeeping, or other compliance requirements of the proposed rule; any overlapping, duplicative, or conflicting Federal rules; and any significant alternatives to the proposed rule that would accomplish the stated objectives, consistent with applicable statutes, and that would minimize any significant adverse economic impacts of the proposed rule on small entities. Descriptions of this proposed rule, its purpose, and the legal basis are contained earlier in this preamble and are not repeated here.

This proposed rule would directly regulate the owners and operators of trawl CPs and motherships when operating in the non-pollock groundfish fisheries in the BSAI or GOA who voluntarily choose to sort halibut PSC on deck. In addition, the proposed rule would directly regulate the owners and operators of CPs and motherships subject to requirements for bin monitoring and observer sampling stations.

In 2017, the most recent complete year of data, there were 37 fishing vessels that participated in the groundfish fisheries in the BSAI or GOA and have sufficient deck configurations to participate in halibut deck sorting. Of these, 35 are CPs that participated in either the pollock or non-pollock groundfish fisheries, or in both, and two are AFA motherships. All of these vessels would be eligible to deck sort halibut as proposed under this proposed rule if they operated as a CP or mothership in a non-pollock groundfish fishery in the future. Eight of the 35 CPs also operated as motherships at some time during 2017 and two of the AFA motherships operated in the pollock fishery but not in non-pollock groundfish fisheries in 2017. One AFA mothership did not operate in 2017 but did operate in 2016 and plans to operate in 2019. Thus, these 38 vessels, and their operators, are entities that are potentially directly regulated by this proposed rule.

In addition to these 38 vessels that are presently operating or planning to operate in the BSAI or GOA groundfish fisheries, there are four AFA permitted CPs, and one Amendment 80 permitted CP that are not presently operating in the groundfish fisheries off Alaska; however, they could possibly be used in the future. Therefore, these five vessels also are entities potentially directly regulated by this proposed rule. Any of these 40 CPs (35 presently operating, five not operating) and three AFA motherships could choose to participate in halibut deck sorting under this proposed rule if they met all of the permitting requirements for the non-pollock groundfish fisheries and the catch monitoring and handling requirements for deck sorting.

One additional CP has been identified as being eligible to participate in halibut deck sorting. This CP is somewhat unique in several ways. First, it is Amendment 80 eligible but is not currently participating in the Amendment 80 Program. Secondly, due to limited holding capacity, this vessel pre-sorts all catch on deck prior to processing. This is in contrast to the practice of other CPs that hold fish in a bin below deck before delivery to the factory where sorting will then occur. This means that all halibut are presently deck sorted and discarded and do not enter the factory. In addition, this CP has very limited deck space within which to accommodate the deck sorting equipment required by this action and such modifications may not be possible. Therefore, due to its configuration and operational practices, it is unlikely that this CP will choose to deck sort halibut PSC. Therefore, this vessel is not considered as a directly regulated entity under this proposed rule.

Three questions must be considered in classifying CPs and motherships to determine if they are small entities under the RFA. First, are the individual vessels independently owned and operated and not dominant in their field of operation, or are these vessels affiliated with any other business entities worldwide? Second, which industry classification is appropriate to use for the CPs that conduct both fish harvesting and fish processing and for the three motherships that process groundfish, but do not conduct any fishing activities themselves? Third, which income or employment threshold should be applied to identify the small entities among the universe of directly regulated entities in each of these entity categories?

The thresholds applied to determine if an entity or group of entities are “small” under the RFA depend on the industry classification for the entity or entities. Businesses classified as primarily engaged in commercial fishing are considered small entities if they have combined annual gross receipts not in excess of $11.0 million for all affiliated operations worldwide (81 FR 4469; January 26, 2016). Businesses classified as primarily engaged in fish processing are considered small entities if they employ 750 or fewer persons on a full-time, part-time, temporary, or other basis, at all affiliated operations worldwide.

CPs engage in both fish harvesting and fish processing activities. The eight CPs that operate as motherships during some part of the year operate primarily as CPs throughout the year, so they will be considered CPs for purposes of classification under this IRFA. Since at least 1993, NMFS Alaska Region has considered CPs to be predominantly engaged in fish harvesting rather than fish processing. Under this classification, the threshold of $11.0 million in annual gross receipts is the appropriate threshold to apply to identify any CPs that are small entities. Because the AFA motherships only process groundfish and do not conduct any fishing activities themselves, they are classified as fish processors, and the threshold of 750 employees is the appropriate threshold to apply to identify any motherships that are small entities under the RFA.

Analysis of fish harvesting revenue at the ex-vessel level for each of the 35 potentially directly regulated CPs that made landings in 2017 reveals that several individual vessels did not exceed the $11.0 million threshold. However, a review of ownership affiliations, and resulting aggregate revenue, reveals that the combined revenue of all co-owned CPs in each of the 10 fishing corporations that own these CPs exceeded the $11.0 threshold and are, thus, considered large entities for RFA purposes.

Additionally, four of the five permitted CPs that are not presently participating in the affected fisheries but are permitted to do so are affiliated through ownership with other CPs that are presently operating in the groundfish fisheries off Alaska. These corporations are a subset of the 10 corporations having ownership of the 35 participating CPs and have been determined to be large entities based on aggregate revenue. The one remaining permitted CP that is not presently participating has not maintained required Federal vessel documentation since 2004 and the owner corporation is inactive according to Washington State corporate records.

One directly regulated CP has annual gross ex-vessel revenue below the $11.0 million threshold. Thus, based on revenue analysis of the individual CPs, combined with ownership affiliation analysis, all but one of the 40 potentially directly regulated CP entities operating in the affected fishery are large entities for RFA purposes.

As noted above, three AFA motherships also could potentially deck sort halibut if they participated as a mothership in a non-pollock groundfish fishery in the BSAI or GOA. Motherships that only process groundfish are classified as fish processors and the threshold of 750 employees is the appropriate threshold to apply to identify if any of these motherships are small entities. NMFS does not have any information that establishes whether any of the three motherships are affiliated through ownership with other business entities worldwide, so they are considered as individual entities for this analysis. In addition, NMFS does not have access to firm level employment data for these mothership firms; however, given the size of the motherships it is unlikely that firm level employment exceeds the 750 employee threshold. Therefore, NMFS has determined that these three motherships also are small entities for RFA purposes.

Although one CP potentially directly regulated by this action is a small entity under the RFA, its participation in the formal deck sorting program is doubtful given current operations and constraints. However, if this CP did choose to sort halibut PSC on deck in the future, they would do so voluntarily and only if the benefits of accounting for reduced halibut mortality outweigh the costs of compliance with program requirements. This statement is also true for the three motherships that are potentially directly regulated small entities by this action. Thus, any impact on the one CP or the three motherships would not be a significant adverse economic impact.

The proposed rule also would directly regulate the owners and operators of CPs and motherships subject to requirements for bin monitoring and observer sampling stations. Revisions to the bin monitoring regulations to remove Option 2 (the line of sight option) would affect some of the same CPs that are potentially directly regulated by the halibut deck sorting action. This element of the proposed rule would not affect the one CP that is a small entity because unsorted fish are not held below deck in bins on this vessel. As described above, none of the potentially directly regulated CPs that use fish bins subject to the bin monitoring requirements are small entities. In addition, none of these vessels have used Option 2 since 2011, and then only in conjunction with other still available options. Therefore, removing Option 2 would not impose any additional costs or restrictions or create any impacts that would be considered significant adverse economic impacts on small entities.

Revisions to the timing of the observer sampling station and bin monitoring inspection reports would affect any CP using trawl, hook-and-line, or pot gear and any mothership subject to these regulations. Some of these CPs may be small entities. However, the proposed revisions increase flexibility for the time between inspections, so do not impose any additional costs or constraints on the vessel owners or operatives. The added flexibility constitutes a slight relaxation of regulations. Therefore, although this element of the proposed rule may affect some small entities, it would not impose any adverse economic impacts.

Although NMFS identified only one small entity CP and potentially three small entity motherships that could be directly regulated by the deck sorting elements of this proposed rule, NMFS believes that it is very unlikely that this action would impose a significant adverse impact. However, NMFS has prepared this IRFA, which provides potentially affected small entities an opportunity to provide comments on this IRFA. NMFS will evaluate any comments received on the IRFA and may consider certifying under section 605 of the RFA (5 U.S.C. 605) that this action will not have a significant economic impact on a substantial number of small entities prior to publication of the final rule.

This proposed rule would implement additional reporting, recordkeeping, and other compliance requirements for the owners and operators of trawl CPs and motherships who choose to sort halibut PSC on deck when operating in the non-pollock groundfish fisheries off Alaska. As noted earlier in the preamble to this proposed rule, these requirements include an observer deck sampling station, video monitoring, an approved Deck Safety Plan, prior approval by NMFS of the plan, a meeting onboard the vessel to review the plan, observer coverage and experience requirements, and other catch handling and monitoring requirements. In addition, the vessel owner or operator must notify the Observer Program by phone at least 24 hours prior to departure when a vessel will carry an observer who has not deployed on that vessel in the past 12 months, and participate in a pre-cruise meeting if NMFS requests such a meeting. Vessel operators also must notify the observer at least 15 minutes prior to fish being brought on board during trips when the vessel participates in halibut deck sorting activities.

No specific recordkeeping, reporting, or other compliance requirements are associated with the revisions to requirements for bin monitoring and observer sampling stations. These revisions would remove an option for providing observers visual access to the fish bins and provide additional flexibility for the timing of annual bin and observer sampling station inspections and reports. These revisions would not change the existing requirements for requesting bin and sampling station inspections and the equipment, operational, and documentation requirements associated with these inspection programs.

No small entity is subject to reporting requirements that are in addition to or different from the requirements that apply to all directly regulated entities. No unique professional skills are needed for the vessel operators to comply with any of the reporting and recordkeeping requirements associated with this proposed rule.

No significant alternatives were identified that would accomplish the stated objectives for implementing a halibut deck sorting program via regulation, are consistent with applicable statutes, and that would minimize costs to potentially affected small entities more than the proposed rule. NMFS considered two alternatives for action in this proposed rule. Alternative 1 is the no action alternative. This alternative would continue to allow halibut deck sorting under an EFP; however, EFPs are not intended to continue indefinitely. Thus, under the no action alternative halibut deck sorting that is currently occurring under the EFP may not be an option in the future. The uncertainty of the EFP makes Alternative 1 potentially costly to vessels that would opt to continue halibut deck sorting, but would not be allowed to if the EFP was discontinued.

Alternative 2, along with Options 1 and 2, provide the greatest economic benefits. The primary economic benefit of this proposed rule is to reduce halibut mortality and allow program participants greater potential to harvest all allocations of target species at all levels of future halibut abundance and PSC limits. NMFS's administrative burden of managing the EFP process will also be reduced as will industry management and implementation costs that are presently born by the EFP applicants and the EFP manager. The economic effects on fishery participants that are affected by this proposed action are considered to be beneficial. Participants will enter the program voluntarily and only if the benefits of accounting for reduced halibut mortality outweigh the costs of compliance with program requirements.

This proposed rule contains collection-of-information requirements subject to review and approval by the Office of Management and Budget (OMB) under the Paperwork Reduction Act (PRA). These requirements have been submitted to OMB for approval under Control Number 0648-0318 (North Pacific Observer Program) and Control Number 0648-0330 (Alaska Region, Scale and Catch Weighing Requirements). The public reporting burden for the collection-of-information requirements in this proposed rule includes the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information.

This proposed rule contains collection-of-information requirements subject to review and approval by the Office of Management and Budget (OMB) under the Paperwork Reduction Act (PRA). These requirements have been submitted to OMB for approval under Control Number 0648-0318 (North Pacific Observer Program) and Control Number 0648-0330 (Alaska Region, Scale and Catch Weighing Requirements). The public reporting burden for the collection-of-information requirements in this proposed rule includes the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information.

Vessel owners or operators of trawl CPs and motherships who choose to sort halibut PSC on deck must have a NMFS-approved Deck Safety Plan prior to participating in halibut deck sorting. When this action takes effect, 24 vessels will have participated in halibut deck sorting with a fully developed Deck Safety Plan. NMFS estimates approximately one new vessel annually in this program. Public reporting burden for the development of a new Deck Safety Plan during the first (initial) year a vessel participates in halibut deck sorting is estimated to average 12 hours. After the first year, the public reporting burden for a respondent to modify or renew an existing Deck Safety Plan is estimated to be one hour.

For vessel owners or operators of trawl CPs and motherships who choose to sort halibut PSC on deck, the public reporting burden per response to notify the Observer Program by phone is estimated to be five minutes, the burden to notify the observer is estimated at two minutes, and appeal of a disapproved Deck Safety Plan is estimated at 4 hours.

When this action takes effect, 24 vessels will have participated in halibut deck sorting with installed deck video monitoring systems and observer deck sampling stations in compliance with regulations. NMFS estimates approximately one new vessel annually in this program. Vessel owners or operators of trawl CPs and motherships who choose to sort halibut PSC on deck must install an observer sampling station on deck for use by the observer when deck sorting halibut. Public reporting burden for the installation of the observer deck sampling station during the first (initial) year a vessel participates is halibut deck sorting is estimated to average 12 hours. After the first year, annual maintenance of observer sampling stations both in the factory and on deck would be expected to be minimal and would likely be done with other factory modifications initiated by the vessel to improve processing efficiency. Annual public reporting burden after the first year is estimated at one minute.

In addition, these vessels must install a deck sorting video monitoring system on deck. Public reporting burden for the installation of the video monitoring system is estimated to average 12 hours. After the first year, annual maintenance of the video monitoring system, including routine inspection and time required to call out for any needed repair, is estimated at one minute.

Public reporting burden for the Inspection Request for Observer Sampling Station, At-sea Scales, Video Monitoring Deck Sampling Station, and Deck Video Monitoring is estimated at 8 minutes.

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

Notwithstanding any other provision of the law, no person is required to respond to, and no person shall be subject to penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB control number. All currently approved NOAA collections of information may be viewed at http://www.cio.noaa.gov/services_programs/prasubs.html.

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

The revisions and additions to read as follows: