The Administrative Procedure Act (APA), 5 U.S.C. 551et seq.,provides among other things, that “[e]ach agency shall give an interested person the right to petition for the issuance, amendment, or repeal of a rule.” (5 U.S.C. 553(e)). Pursuant to this provision of the APA, AHAM petitioned the Department of Energy for the issuance of a new rule to allow manufacturers of room air conditioners to use a correction factor that was not included in the regulations governing DOE's compliance testing procedures at that time. The petition also sought temporary enforcement forbearance, or a temporary industry-wide waiver or guidance, to allow use of this methodology. DOE published the petition for public comment until December 27, 2010, seeking views on whether it should grant the petition and undertake a rulemaking to consider the proposal contained in the petition. (75 FR 72739, Nov. 26, 2010).

In addition to a comment from AHAM reiterating support for their petition, DOE received a jointly filed comment from the Appliance Standards Awareness Project (ASAP) and Earth Justice regarding AHAM's petition. ASAP and Earth Justice were concerned that the correction factor is not appropriate and may not have a sound technical basis. ASAP and Earth Justice stated that the cooling capacity of a room air conditioner may actually be higher rather than lower when barometric pressure is lower than standard pressure (due to greater moisture content in the air, which generally increases latent heat removal). As a result, the correction factor, which adjusts the measured capacity upwards when barometric pressure for the test is lower than standard pressure, may actually correct the capacity in the wrong direction. ASAP and Earth Justice also commented that the correction factor referenced in AHAM's petition applies to test room conditions only where the barometric pressure is lower than standard pressure, but that it would seem appropriate that the correction factor should account for any deviation from standard barometric pressure regardless of the direction (i.e.,both higher and lower). (ASAP and Earth Justice, No. 42 at pp. 1-2)

ASAP and Earth Justice indicated their understanding that in the latest revision of ASHRAE Standard 37 (which applies to central air conditioners), the correction factor was removed when the committee could not find any reference as to where the correction factor originated or data demonstrating the problem of barometric pressure variation and how this problem could be addressed. ASAP and Earth Justice stated their understanding that the correction factor will be removed in the next revision of ASHRAE Standard 16. ASAP and Earth Justice also stated that DOE should fully investigate the issue in the test procedure rulemaking, which was ongoing at the time the comment was submitted, to ensure that the correction factor appropriately reflects the relationship between barometric pressure and measured total capacity. (ASAP and Earth Justice, No. 42 at pp. 1-2)

ASAP and Earth Justice commented that any use of a correction factor is contrary to DOE's regulations for room air conditioners to meet specific Energy Efficiency Ratio (EER) levels as prescribed under 10 CFR 430.23(f)(2) and 430.32(b), and determined in accordance with ASHRAE Standard 16-69. ASHRAE Standard 16-69 does not contain a correction factor to adjust the tested unit's capacity to a standard barometric pressure. Further, ASAP and Earth Justice stated that any deviation from DOE's test procedure regulations negates the effect of any demonstration of compliance with the applicable room air conditioner standards. (ASAP and Earth Justice, No. 42 at p. 2)

DOE notes that the removal of the correction factor in ASHRAE Standard 37 (which applies to central air conditioners) does not indicate that its use is inappropriate in ASHRAE Standard 16, which is used for rating of room air conditioners. Room air conditioners operate with a “wet” condenser in rating test conditions, because room air conditioners use thecondensate from the evaporator side of the product to enhance performance of the condenser. Central air conditioners, which are covered under ASHRAE Standard 37, generally do not have this feature and operate primarily with dry condensers. DOE notes that changes in the barometric pressure have an impact on the moist air conditions, and this may affect room air conditioner performance differently than it would affect central air conditioners because of the difference in condenser operation. This factor could lead to different efficiency measurement impacts of barometric pressure for these two types of products. DOE has not received any information from ASHRAE indicating that ASHRAE is considering revisions to Standard 16 at this time.

DOE also received additional information from AHAM supporting the inclusion of the barometric pressure correction factor in the calculation of cooling capacity from ASHRAE Standard 16. AHAM indicated that as atmospheric pressure drops, so does the air density and, therefore, the mass of air in a room. As atmospheric pressure drops, the efficiency of a unit would also drop because there would be less medium for heat transfer. “The performance of the cooling coil is considerably influenced, and the cooling capacity of the air supplied to the conditioned room is reduced, by altitude effects because air density reduces * * *. Air mass flow rate is probably the most important effect of barometric pressure changes upon system performance. It is the air mass flow rate that transfers heat between cooler coils or condensers and airstreams and removes the sensible and latent heat gains from the conditioned space. Therefore, it is of vital importance that the correct air density or specific volume be used in calculations.” (William Peter Jones, Air Conditioning Applications and Design, 32 (2d Ed. 1997)). AHAM indicated that because barometric pressure is connected to the measured efficiency of the unit, multiple tests of the same unit, under slightly different barometric pressure conditions, will likely produce different results.

AHAM also provided data from a room air conditioner performance simulation using IMST-ART version 3.30 modeling software of five simulations, in each case progressively reducing the barometric pressure inputs by 1 in. Hg starting from standard barometric pressure (29.92 in. Hg). The results from this simulation, presented below in Table 1, show that the cooling capacity decreases as atmospheric pressure decreases.

DOE recently published a final rule to amend the test procedure for room air conditioners and clothes dryers. (75 FR 972, Jan. 6, 2011). In the final rule, DOE noted that section 6.1.3 of ANSI/ASHRAE Standard 16-1983 (RA 2009) introduces a correction factor based on the test room condition's deviation from the standard barometric pressure of 29.92 inches (in.) of mercury (Hg) (101 kilopascal (kPa)). Section 6.1.3 of ANSI/ASHRAE Standard 16-1983 (RA 2009) states that the cooling capacity may be increased 0.8 percent for each in. of Hg below 29.92 in. of Hg (0.24 percent for each kPa below 101 kPa). For the reasons stated in the final rule, DOE amended the DOE test procedure to reference the relevant section of the ANSI/ASHRAE Standard and include use of the barometric pressure correction factor.

The amended test procedure was effective February 7, 2011 and applies prospectively. DOE notes that the Administrative Procedure Act defines a rule as being prospective in nature. 5 U.S.C. 551(4) (“ ‘rule’ means the whole or a part of an agency statement of general or particular applicability and future effect * * *”) In addition, the Supreme Court has stated that absent express statutory authority, agencies cannot promulgate retroactive rules.See Bowenv.Georgetown University Hospital,488 U.S. 204 (1988). The Energy Policy and Conservation Act of 1975, as amended, 42 U.S.C. 6291,et seq.,does not authorize DOE to specify retroactive application of any portion of the test procedure in a test procedure rulemaking.

For the reasons stated above, DOE denies AHAM's petition as moot.

The Consumer Product Safety Improvement Act of 2008, Public Law 110-314 (“CPSIA”) was enacted on August 14, 2008. Section 104(b) of the CPSIA requires the Commission to promulgate consumer product safety standards for durable infant or toddler products. These standards are to be “substantially the same as” applicable voluntary standards or more stringent than the voluntary standard if the Commission concludes that more stringent requirements would further reduce the risk of injury associated with the product. This document proposes a safety standard for portable bed rails. The proposed standard is substantially the same as the voluntary standard developed by ASTM International (formerly known as the American Society for Testing and Materials), ASTM F 2085-10a, “Standard Consumer Safety Specification for Portable Bed Rails,” but we are proposing some modifications to strengthen the standard because these more stringent requirements would further reduce the risk of injury associated with portable bed rails.

In theFederal Registerof October 3, 2000 (65 FR 58968), we published an advance notice of proposed rulemaking (“ANPR”) inviting written comments concerning the risks of injury associated with portable bed rails, regulatory alternatives discussed in the ANPR, other possible ways to address the risks of injury associated with portable bed rails, and the economic impacts of the regulatory alternatives. The ANPR was intended to initiate a rulemaking proceeding that could result in a rule banning portable bed rails that present an unreasonable risk of injury, and we issued the ANPR under our authority in the Federal Hazardous Substances Act (“FHSA”). Elsewhere in this issue of theFederal Register, the Commission has issued a notice that the Commission has terminated the rulemaking proceeding that it began under the FHSA because it has been superseded by the rulemaking required under section 104(b) of the CPSIA.

In May 2001, the ASTM published a standard, ASTM F 2085, “Standard Consumer Safety Specification for Portable Bed Rails.” In October 2001, CPSC staff prepared a draft proposed standard, which included performance requirements to address entrapment hazards on portable bed rails. The Commission voted to direct CPSC staff to prepare a notice of proposed rulemaking (“NPR”) based on its recommended standard. Thereafter, the ASTM Portable Bed Rail Subcommittee agreed to ballot a revision to ASTM F 2085 that was substantially the same as CPSC staff's recommended standard. Accordingly, we did not issue an NPR at that time. ASTM approved and published the revised standard in June 2003. In 2008, ASTM published another revision to the standard that included a structural integrity test to address fall incidents involving hinge lock mechanism failures. From 2009 to 2010, ASTM made and published minor revisions to the standard. The current edition of the standard is ASTM F 2085-10a, “Standard Consumer Safety Specification for Portable Bed Rails.” The standard in this proposed rule would be more stringent in some respects than the voluntary standard ASTM F 2085-10a. The proposed modifications, if finalized, will further reduce the risk of death and injury associated with portable bed rails.

ASTM F 2085-10a defines a “portable bed rail” as a “portable railing installed on the side of an adult bed and/or on the mattress surface which is intended to keep a child from falling out of bed.” The scope of the ASTM standard also states that a portable bed rail “is as a device intended to be installed on an adult bed to prevent children from falling out of bed.” Portable bed rails are intended for children (typically from 2 to 5 years of age) who can get in and out of an adult bed unassisted. They include bed rails that only have a vertical plane that presses against the side of the mattress but does not extend over it (referred to as “adjacent type bed rails”), as well as bed rails that extend over the sleeping surface of the mattress (called “mattress-top bed rails”).

A review of market information shows that there are products that differ from traditional, rigid portable bed rails in that they are constructed of nonrigid materials, such as foam or inflatable materials. Although these foam and inflatable products do not use the term “bed rails” in their packaging orlabeling, we believe that the products meet the definition of a portable bed rail and should be included in the scope of the voluntary standard. However, most performance requirements of ASTM F 2085-10a do not apply to these products because the standard was developed to address the hazards from portable bed rails constructed from rigid (wood/metal) materials. Accordingly, the proposed rule would revise ASTM F 2085-10a to include foam and inflatable products, but would require that only certain relevant provisions of the standard apply to such items.

Both portable bed rails made for a specific manufacturer's adult-size beds and “universal” bed rails that can attach to any adult-size bed are included in the scope of ASTM F 2085-10a. However, guard rails that are used with crib mattresses on toddler beds are not covered under the voluntary standard. They are addressed under the Consumer Safety Standard for Toddler Beds (April 28, 2010, 75 FR 22291). Other products that are not covered by ASTM F 2085-10a include: side rails that connect the headboard to the footboard and may or may not have any barrier purposes; conversion rails intended to convert a crib to a full-size bed; and adult-size beds where the rail is permanently attached to the bed (i.e.,bunk beds).

Additionally, the U.S. Food and Drug Administration (“FDA”) has several regulations pertaining to hospital beds, including a regulation for pediatric hospital beds (21 CFR 880.5140). The FDA regulations, in general, identify a hospital bed as having (among other things) movable and latchable side rails. If a pediatric hospital bed is subject to regulation by the FDA as a medical device, then the bed rails on that pediatric hospital bed are outside the scope of this proposed rule.

The ASTM standard for portable bed rails was first published in May 2001 (ASTM F 2085-01). This was a minimum standard with requirements for labeling but no performance requirements. The portable bed rails that met the 2001 standard typically were designed with two arms at right angles to the vertical portion of the rail. This type of portable bed rail was installed on a bed by inserting the arms between the mattress foundation and the mattress. These older style portable bed rails relied on friction between the arms and the foundation/mattress to stay in place. However, this type of design allowed the portable bed rail to be moved outward away from the mattress unintentionally if a force was applied in that direction. An outward force may result from activity by a child in the bed while the child is asleep or awake. Once the bed rail is moved outward, a gap could be created between the vertical portion of the rail and the side of the mattress. The primary hazard scenario would involve a child rolling into a gap between the mattress and portable bed rail and becoming entrapped. Once entrapped, the child could suffocate or strangle.

To address this hazard, the ASTM Subcommittee on Portable Bed Rails revised the standard in June 2003 (ASTM F 2085-03). ASTM F 2085-03 addressed the entrapment hazard by including a new section, “Openings Created by a Displacement,” with requirements to deal with displacement of a portable bed rail. In 2008, ASTM published a revised standard (ASTM F 2085-10) that included a structural integrity test to address incidents involving hinge lock mechanism failures. From 2009 to 2010, ASTM made and published minor revisions to the standard. The current edition of the standard is ASTM F 2085-10a.

To assess the adequacy of ASTM F 2085-10a, we tested a variety of portable bed rails currently in the market. Several portable bed rails were certified to ASTM F 2085-10a by the Juvenile Products Manufacturers Association (“JPMA”). JPMA operates a program to certify portable bed rails to the voluntary standard. To obtain JPMA certification, manufacturers submit their products to an independent test laboratory for conformance testing to the most current voluntary standard. For portable bed rails that are assembled and installed in accordance with the manufacturer's instructions, we believe that the requirements to address structural integrity and prevent displacement from the mattress are adequate. However, if a portable bed rail is misassembled or misinstalled on the bed, it could present an entrapment hazard. ASTM F 2085-10a does not address misassemby or misinstallation of portable bed rails.

We also reviewed the British Standard Institution (“BSI”) standard for bed rails, BS 7972:2001+A1:2009 Safety Requirements and Test Methods for Children's Bedguards for Domestic Use. The BSI standard primarily addresses entrapment and structural integrity, but also includes some requirements for warning labels. The BSI standard also contains a performance requirement that the bed rail remain attached to the bed after rolling a 30 lb cylinder into the bed rail. The test simulates a child rolling into the bed rail; the ASTM standard does not have an equivalent requirement. We conducted limited testing to compare this requirement with requirements in the ASTM standard that address potential entrapment hazards. Based on staff's review, we find that the ASTM standard is more stringent than the BSI standard because the ASTM test methods provide more stress to the portable bed rail and mattress interface when evaluating entrapment hazards.

The CPSC Directorate for Epidemiology analyzed incident data related to portable bed rails from January 1, 2000 through March 31, 2010. We received reports of a total of 132 incidents related to portable bed rails. Among the 132 reported incidents, there were 13 fatalities, 40 nonfatal injuries, and 79 noninjury incidents. Of the 13 child fatalities reported involving portable bed rails, most children (9 out of 13) were under 1 year old; two were between 1 and 2 years old; and two children, both physically handicapped, were 6 years old. While all 13 incidents reported some sort of entrapment of the child between the portable bed rail and the mattress, no additional product- or scenario-specific information was available for five reports. Among the remaining eight incidents, two deaths resulted from portable bed rail displacement, when the portable bed rail partially pushed away from underneath the mattress and allowed the child to fall into the opening and get trapped. There were three cases of portable bed rail misassembly. In the first incident, the middle bar was absent, and the child rolled into the mesh and got wedged between the mattress and the rail. In the second incident, the middle bar was not inserted through the mesh sleeve, and the child's head slipped between the bottom edge of the mesh panel and the top edge of the mattress. In the third incident, the bottom horizontal bar was not attached to the vertical bar, resulting in a hazardous gap. In the remaining three fatality incidents, not enough information was available to determine the contributing factor(s) that led to the hazardous entrapment scenario. The beds used in all eight cases were adult-size.

A total of 40 nonfatal incidents associated with the use of a portable bed rail involved injury to a child. Eighty-three percent of the injured children were 2 years old or older. The majority of the injuries (28 out of 40, or 70 percent) were identified as fractures/contusions resulting from a fall when the portable bed rail became dislodged,or lacerations/scratches on sharp or broken surfaces of the portable bed rail. The remaining injuries resulted from the child getting caught on a torn mesh panel of the rail; the child getting partially entrapped in a portable bed rail that was partly pushed out; and the child nearly choking on small parts (e.g.,hardware or labels) that separated from the portable bed rail. While no injuries were reported for the remaining 79 incidents, the incident scenarios indicate that injuries or fatalities potentially could have occurred.

We considered the 132 incidents together to identify the hazard patterns associated with portable bed rail-related incidents. The hazard patterns can be grouped into the following categories:

•Displacement of the portable bed rail—Sixty-nine of the 132 incidents (52 percent) involved the displacement of the portable bed rail, where the portable bed rail pushed out from underneath the mattress and created an opening between the mattress and the rail. In cases where the opening was small, the child became entrapped in the space. In cases where the opening was wide or the rail dislodged completely, the child fell to the floor. There were two fatal incidents, where the portable bed rail had pushed out partially and entrapped the child. There were about 21 nonfatal injuries that resulted from displacement of the rail. A small proportion of the 69 incident reports provided enough information to indicate that, for some “double-rail” configurations (i.e.,a design that has two bed rails, one on each side of the mattress), failure of the push-pin or buckle lock mechanism (on the connecting bars/straps underneath the mattress) usually was the main cause of the portable bed rail displacement.

•Worn or poor quality fabric on mesh panel—Seventeen of the 132 incidents (13 percent) involved a tear in the mesh, the unraveling of the stitching around the mesh, or simply very loose fabric on the mesh panel. Most nonfatal incident reports in this category involved the child getting caught in the tear/hole (tooth, limb, or even head); loose thread from the stitching getting tightly wound around the child (finger or neck); and mesh coming completely loose, allowing the child to slide through the panel and fall. Many consumers in the incident reports expressed concern over the potential of the tears/holes in the mesh to become larger and increase the risk of strangulation.

•Sharp surface—Fourteen of the 132 incidents (11 percent) involved lacerations or scratches, or the potential thereof, on sharp surfaces of the portable bed rail. Some of the portable bed rails reportedly involved in these incidents had sharp surfaces to begin with, while in other incidents, sharp surfaces were created when parts of the portable bed rail broke away. Occasionally, depending upon the part that broke, the broken components created a potential fall hazard.

•Hinge lock disengagement—Eleven of the 132 incidents (8 percent) involved the hinge lock mechanism failing to remain locked to keep the side panel in an upright position. This allowed the child to fall out. Three out of the 11 incidents involving hinge lock mechanism failures resulted in injuries.

•Misassembly—Seven of the 132 incidents (5 percent) involved either misassembly or misinstallation of the portable bed rail. Misassembly resulted in three fatalities. In the first case, the middle bar was absent; in the second case, the middle bar was not inserted through the mesh sleeve; and in the third case, the bottom horizontal bar was not attached to the vertical bar. Examples of nonfatal incidents related to misinstallation included the use of a portable bed rail on a toddler bed, as well as the use of a portable bed rail with an extra thick mattress, which prevented the portable bed rail from attaching securely.

•Miscellaneous Other or Unknown Issues—Fourteen of the 132 incidents (11 percent) involved other problems not listed above. Six reports—including five fatalities—did not provide any product- or scenario-specific information. Three additional fatality reports provided insufficient information to draw any conclusions about why the portable bed rail was not flush with the mattress. The remaining five nonfatal incidents involved the potential for choking on small parts, such as loose hardware or labels; instability issues resulting from loose hardware; and inadequate design issues, such as extra-wide openings in nonmesh side panels or insufficient rail height.

Section 104(b) of the CPSIA requires the Commission to assess the effectiveness of the voluntary standard in consultation with representatives of consumer groups, juvenile product manufacturers, and other experts. CPSC staff has consulted with these groups regarding the ASTM voluntary standard,Consumer Safety Specification for Portable Bed Rails,throughout its development. Consultation with members of this subcommittee is ongoing. ASTM F 2085-10a contains several labeling and performance criteria. The standard addresses many of the same hazards associated with other durable nursery products, and includes requirements for lead in paints, sharp edges/sharp points, small parts, wood part splinters, structural integrity, openings, protrusions, and warning labels. For the eight fatal incidents associated with portable bed rails for which investigations by CPSC staff were completed, we identified two major contributing factors: (1) Improper installation, and (2) misassembly. It is also notable that 11 of the 13 deaths involved children under 2 years old. Portable bed rails, which are meant to be installed on an adult bed, are not intended for this age group. Placing a railing on the side of an adult bed does not make the adult bed safe for infants (i.e.convert an adult bed into a crib). Despite the current warning label cautioning against the use of this product with children under 2 years old, parents of infants continue to use this product with their infants.

Most portable bed rails currently in the market are difficult for consumers to assemble correctly, due to the number of components and the complexity of the fastening hardware. There were three fatal incidents involving misassembled portable bed rails and, based on our testing of sample portable bed rails, consumers are likely to have difficulty assembling and installing portable bed rails correctly. The proposed rule would contain new performance requirements and associated test methods to address misassembly of portable bed rails.

These proposed performance requirements should reduce the likelihood of portable bed rail misassembly. The proposed misassembly performance requirements would prevent portable bed rail entrapment fatalities that result from assembly of a product without critical assembly components (i.e.,any component of the portable bed rail that requires consumer assembly to meet the performance requirements); incorrectly installing the portable bed rail's fabric cover/mesh (if present); or inverting/interchanging parts of the portable bed rail. The addition in the standard of misassembly performance requirements will result in portable bed rail designs that will render the portable bed rail no longer functional if it is not assembled according to the manufacturer-intendedfinal assembly, or make it obvious to the consumer that the product is misassembled. While current portable bed rail designs do not meet the proposed misassembly requirements, we are aware of the technical feasibility of this requirement because we have developed and demonstrated to ASTM, two prototypes using common portable bed rails designs (adjacent style and mattress top) that meet the proposed requirements.

The proposed rule also would contain a new performance requirement and associated warning label for portable bed rail critical installation components to address issues related to misinstallation of portable bed rails. Although we are not aware of any deaths associated with portable bed rail misinstallation, we are aware of entrapment hazards caused by misinstallation. Furthermore, review and testing of market samples indicate that some consumers may have difficulty installing portable bed rails, which could lead to potentially hazardous conditions. Installation of a portable bed rail onto a bed can require complex or physically demanding adjustments to the portable bed rail, particularly when reaching between the mattress and mattress foundation. A portable bed rail that has been installed improperly could move away from the mattress and form a hazardous gap. Portable bed rail installation components, such as anchor plate and strap combinations, can be misplaced, or not used at all. The proposed performance requirement for critical installation components would increase the likelihood that such components are attached permanently to a structural component of the portable bed rail. In addition, a proposed new warning label for critical installation components would reinforce the importance of using the installation components when installing portable bed rails onto the bed and reduce the likelihood of misinstallation.

Consistent with section 104(b) of the CPSIA, the Commission, through this proposed rule, would establish a new 16 CFR part 1224,Safety Standard for Portable Bed Rails.The new part 1224 would incorporate by reference the requirements for portable bed rails in ASTM F 2085-10a with certain changes to specific provisions and additions to the standard. The proposed modifications and additions to the standard would reduce further the risk of injury associated with portable bed rails.

Part 1224 would consist of two sections: § 1224.1,Scope, application, and effective date,and § 1224.2,Requirements for portable bed rails.

To understand the proposed rule, it is helpful to view the current ASTM F 2085-10a standard for portable bed rails and our proposed modifications, along with the explanations provided in part E.2 of this preamble. The ASTM standard is available for viewing for this purpose during the comment period through this link:http://www.astm.org/cpsc.htm.For example, the proposed rule would create several new sections in ASTM F 2085-10a. To distinguish between the requirements that would be published in the Code of Federal Regulations, we describe those requirements as proposed § 1224.1 or proposed § 1224.2, and describe the new sections that the proposed rule would create in ASTM F 2085-10a as a “new section.”

Proposed § 1224.1 would explain that part 1224 establishes a consumer product safety standard for portable bed rails manufactured or imported on or after a specific date. The date would be the effective date of a final rule, which is normally six months after date of publication of a final rule in the Federal Register.

(i). Incorporation by Reference (Proposed § 1224.2(a)).

Proposed § 1224.2(a) would state that each portable bed rail, as defined in ASTM F 2085-10a, must comply with all applicable provisions of ASTM F 2085-10a, except as provided in proposed § 1224.2(b). Proposed § 1224.2(a) also would incorporate ASTM F 2085-10a by reference, and inform interested parties how they can obtain a copy of the standard or inspect the standard at the CPSC or at the National Archives and Records Administration.

(ii). Foam and Inflatable Products (Proposed § 1224.2(b)(1)).

Proposed § 1224.2(b)(1) would revise the scope section in ASTM F 2085-10a to include foam and inflatable products. A “foam bed rail” is defined as a portable bed rail constructed primarily of nonrigid materials, such as fabric or foam. An “inflatable bed rail” is defined as a portable bed rail constructed primarily of nonrigid material that requires air to be inflated into the product to achieve structure. Our review of market information indicates that there are products that differ from traditional, rigid portable bed rails in that they are constructed of foam or inflatable rubber materials and meet the definition of a portable bed rail under ASTM F 2085-10a. However, most performance requirements of ASTM F 2085-10a do not apply to these products because the standard was developed to address the hazards from portable bed rails that consist of rigid (wood/metal) materials. Accordingly, the proposed rule would state that the foam and inflatable portable bed rails must meet only the General Requirements of section 5; the performance requirement of subsection 6.3,Enclosed Openings;and the warning statements of subsection 9.3.1 of ASTM F 2085-10a because those requirements can be applied to foam and inflatable portable bed rail products.

(iii). Terminology (Proposed § 1224.2(b)(2)).

Proposed 1224.2(b)(2) would revise the terminology in section 3 of ASTM F 2085-10a by creating new terms to be numbered as new sections 3.1.10 through 3.1.14 of ASTM F 2085-10a. The new terms would be as follows:

Foam bed railis a portable bed rail constructed primarily of nonrigid materials, such as fabric or foam;

Inflatable bed railis a portable bed rail constructed primarily of nonrigid material that requires air to be inflated into the product to achieve structure;

Critical assembly componentis any component of the portable bed rail that requires consumer assembly in order to meet the performance requirements of sections 6.1,Structural Integrity,6.3Enclosed Openings;6.4,Openings Created by Portable Bed Rail Displacement of Adjacent Style Portable Bed Rails;6.5,Openings Created by Displacement of Mattress-Top Portable Bed Rails;and 6.6,Openings Created by Displacement of Portable Bed Rails Intended for Use on Specific Manufacturers' Bedsof ASTM F 2085-10a;

Critical installation componentis any component of the portable bed rail that is used to attach the portable bed rail onto the bed; and

Misassembled/functional portable bed railis a portable bed rail that has been assembled incorrectly but appears to function as a portable bed rail. Misassembly/functionality is determined by meeting one of the criteria listed in proposed section 6.9,Determining Misassembled/Functional Portable Bed Rail,of ASTM F 2085-10a.

The proposed rule would create these new terms because the Commission is proposing new requirements for foam and inflatable products. In addition, theCommission is proposing new requirements to address misassembly and misinstallation of portable bed rails. Accordingly, the addition of the new terms will help testing laboratories understand the new performance requirements and associated test methods to reduce entrapment hazards associated with portable bed rails.

(iv). General Requirements (Proposed § 1224.2(b)(3)).

Proposed section 1224.2(b)(3) would create a new section 5.6 of ASTM F 2085-10a,Critical Installation Components.This new section of ASTM F 2085-10a (new section 5.6.1) would provide that critical installation components that are also critical assembly components and meet the definition of a misassembled/functional portable bed rail must be permanently affixed to a structural component(s) of the portable bed rail. If a critical installation component(s) is also a critical assembly component and may result in a misassembled/functional portable bed rail, a new section 5.6.2 of ASTM F 2085-10a would require that a portable bed rail not remain upright or that the vertical height must decrease by 6 inches at any point along the top rail when tested to the method for determining the acceptability of the vertical structure of a misassembled/functional portable bed rail. (The requirement regarding a portable bed rail not remaining upright or meeting certain vertical height requirements would be at a new section 6.10.1 of ASTM F 2085-10a, which we discuss later in section v of this document.) The addition of critical installation components would reduce the likelihood of portable bed rail misassembly in that a misassembled bed rail would no longer be functional without the critical installation components.

(v). Determining Misassembled/Functional Portable Bed Rail (Proposed § 1224.2(b)(4)(i) and (ii)).

Proposed § 1224.2(b)(4)(i) would create a new section 6.9 of ASTM F 2085-10a,Determining Misassmbled/Functional Portable Bed Rail.It would consider a portable bed rail to be a misassembled/functional portable bed rail if:

• The portable bed rail can be assembled without any critical assembly component (new section 6.9.1 of ASTM F 2085-10a);

• The portable bed rail can be assembled without the supplied fasteners, such as screws, nuts, or bolts that are not captive to a critical assembly component like the frame (new section 6.9.2 of ASTM F 2085-10a);

• The portable bed rail's fabric cover or mesh can be placed over the rigid frame structure without engaging critical parts of the frame as intended in final assembly (new section 6.9.3 of ASTM F 2085-10a), or

• The portable bed rail can be assembled by improper placement of any critical component, such as an inverted or an interchanged part, without permanent deformation or breakage (new section 6.9.4 of ASTM F 2085-10a).

To determine the acceptability of a misassembled/functional portable bed rail, proposed section 1224.2(b)(4)(ii) would set forth the requirements for a new section 6.10,Determining Acceptability of Misassmbled/Functional Portable Bed Rail,of ASTM F 2085-10a. The new section would provide that misassembled/functional portable bed rails must meet sections 6.10.1, 6.10.2, 6.10.3, or 6.10.4 of ASTM F 2085-10a. Under the proposed rule, a new section 6.10.1 of ASTM F 2085-10a would provide that the portable bed rail must not remain upright or the vertical height must decrease by 6 inches at any point along the top rail when tested to new section 8.7 (Test Method for Determining Acceptability of Vertical Structure of a Misassembled/Functional Portable Bed Rail) of ASTM F 2085-10a. This section would provide criteria to determine whether a misassembled portable bed rail lacks sufficient vertical structure.

A new section 6.10.2 of ASTM F 2085-10a would provide that the fabric cover or mesh attached to the bed rail must have a permanent sag that is a minimum of 3 inches after tested in accordance with new section 8.8 (Test Method for Determining Fabric Sag Acceptability of a Misassembled/Functional Portable Bed Rail) of ASTM F 2085-10a. A new section 6.10.3 of ASTM F 2085-10a would provide that a product will not be considered acceptable if the fabric cover will not fit over the frame without tearing. A new section 6.10.4 of ASTM F 2085-10a would provide that mating parts must clearly show misassembly by two parts overlapping and creating a minimum of a1/2inch protrusion out of the plane of the rail. These new sections would provide the criteria for testing laboratories to determine the sufficiency of visual cues for fabric mesh misassembly.

(vi). Test Equipment (Proposed § 1224.2(b)(5)(i)).

Proposed section 1224.2(b)(5)(i) would state that a force gauge must have a minimum range of 0 to 50 lb (222N) with a maximum tolerance of ± 0.25 lb (1.11N), as set forth under a new section 7.6 of ASTM F 2085-10a. The addition of this section will help clarify the manner in which the force will be applied under the proposed test methods discussed in section (vii) below.

(vii). Test Method for Determining Acceptability of Vertical Structure of a Misassembled/Functional Portable Bed Rail. (Proposed §§ 1224.2(b)(6)(i) and (ii)).

Proposed §§ 1224.2(b)(6)(i) and (ii) would require new test methods to address misassembly of portable bed rails. These proposed requirements would include a test method for determining the acceptability of the vertical structure of a misassembled/functional portable bed rail under a new section 8.7 of ASTM F 2085-10a, as well as a test method for determining fabric sag acceptability of a misassembled/functional portable bed rail under a new section 8.8 of ASTM F 2085-10a. These tests would provide a method for testing laboratories to determine if a misassembled portable bed rail lacks sufficient vertical structure and also determine the sufficiency of visual cues for portable bed misassembly.

Under a new section 8.7 of ASTM F 2085-10a, the proposed test method for determining acceptability of vertical structure of a misassembled/functional bed would require, if possible, an attempt to assemble the portable bed rail in a misassembled configuration(s), as described in new section 6.9 of ASTM F 2085-10a. The proposed test method also would include:

• Firmly securing the misassembled portable bed rail on a table top or other stationary flat surface using clamps (new section 8.7.2 of ASTM F 2085-10a). The clamps should be located 4 to 6 inches from the intersection of the portable bed rail legs to the vertical plane.

• Gradually applying a force of 10 lbs, using a1/2inch disc to the uppermost horizontal component of the rail in a downward direction at a location along the horizontal component most likely to vertically deform the portable bed rail; and applying the force over a period of 5 seconds, and holding the force for 10 seconds and releasing (new section 8.7.3 of ASTM F 2085-10a); and

• Repeating the steps in new sections 8.7.1 through 8.7.3 for all misassembly configurations (new section 8.7.4 of ASTM F 2085-10a).

The proposed test method for determining fabric sag acceptability of a misassembled/functional portable bed rail (new section 8.8 of ASTM F 2085-10a) would require, if possible, an attempt to assemble the portable bed railin a misassembled configuration(s), as described in new section 6.9 of ASTM F 2085-10a, and depicted in new Figure 8. The proposed test method would include:

• Gradually applying a force of 1 lb using a1/2inch disc on the fabric/mesh in any direction or location along the fabric/mesh that is most likely to cause it to come off of the frame; applying the force over a period of 5 seconds; and holding for an additional 10 seconds and releasing (new section 8.8.2 of ASTM F 2085-10a); and

• Repeating these steps for all misassembly configurations discovered in new section 6.9 of ASTM F 2085-10a (new section 8.8.3 of ASTM F 2085-10a).

Proposed section 1224.2(b)(7) would add a warning symbol

Proposed section 1224.2(b)(8) would replace the existing marking under section 9.3.1.3 of ASTM F 2085-10a, which states: “Infants who cannot get in and out of an adult bed without help can be trapped between a mattress and a wall and suffocate. NEVER place infants in adult beds with or without a portable bed rail.” The proposed warning would state instead: “Children who cannot get in and out of an adult bed without help can be trapped between a mattress and a wall and suffocate. NEVER place children younger than 2 years old in adult beds with or without a portable bed rail.” Despite the current warning label cautioning against the use of this product with children under 2 years old, parents of infants continue to use this product with their infants. Accordingly, the revised language would emphasize the hazard presented to children younger than 2 years old when placed in adult beds.

Proposed section 1224.2(b)(9) would require critical installation components to be labeled with the entrapment hazard warning for portable bed rail use to warn of issues related to misinstallation of portable bed rails under a new section 9.4 of ASTM F 2085-10a. A new section 9.4 of ASTM F 2085-10a would require the entrapment hazard warning to be in contrasting colors, permanent, conspicuous, and sans serif-style font. The proposed warning would require in the entrapment hazard warning statement the safety alert symbol

(ix). Instructional Literature (Proposed § 1224.2(b)(10)). This proposed section would revise the language in section 11.1 of ASTM F 2085-10a to add the word “installation” among the topics in instructional literature. This proposed section would read: “Instructions must be provided with the portable bed rail and must be easy to read and understand. Assembly, installation, maintenance, cleaning, operating, and adjustment instructions and warnings, where applicable, must be included.” This requirement would add clear instructional literature for installation components to provide consumers easy to understand information for securing portable bed rails on beds.

This proposed rule begins a rulemaking proceeding under section 104(b) of the CPSIA to issue a consumer product safety standard for portable bed rails. We invite all interested persons to submit comments on any aspect of the proposed rule. Comments should be submitted in accordance with the instructions in theADDRESSESsection at the beginning of this notice.

The Administrative Procedure Act (“APA”) generally requires that the effective date of a rule be at least 30 days after publication of the final rule. 5 U.S.C. 553(d). To allow time for manufacturers of portable bed rails to bring their products into compliance with the new requirements, the Commission intends that the standard would become effective six months after publication of a final rule. The Commission seeks comment on how long it would take manufacturers of portable bed rails to come into compliance with the rule.

The Regulatory Flexibility Act (“RFA”), 5 U.S.C. 601-612, requires agencies to consider the impact of proposed rules on small entities, including small businesses. Section 603 of the RFA requires that we prepare an initial regulatory flexibility analysis and make it available to the public for comment when the general notice of proposed rulemaking is published. The initial regulatory flexibility analysis must describe the impact of the proposed rule on small entities and identify any alternatives that may reduce the impact. Specifically, the initial regulatory flexibility analysis must contain:

1. A description of and, where feasible, an estimate of the number of small entities to which the proposed rule will apply;

2. A description of the reasons why action by the agency is being considered;

3. A succinct statement of the objectives of, and legal basis for, the proposed rule;

4. A description of the projected reporting, recordkeeping, and other compliance requirements of the proposed rule, including an estimate of the classes of small entities subject to the requirements and the type of professional skills necessary for the preparation of reports or records; and

5. An identification, to the extent possible, of all relevant federal rules that may duplicate, overlap, or conflict with the proposed rule.

In addition, the initial regulatory flexibility analysis must contain a description of any significant alternatives to the proposed rule that would accomplish the stated objectives of the proposed rule and at the same time reduce the economic impact on small entities.

Typically, portable bed rails are produced and/or marketed by juvenile product manufacturers and distributors or by furniture manufacturers and distributors. Currently, there are at least 14 known manufacturers or importers supplying portable bed rails to the U.S. market. Ten are domestic manufacturers (71 percent) and three are domesticimporters (21 percent). The remaining firm has an unknown supply source, and there is no publicly available information regarding its size.

Under the U.S. Small Business Administration (“SBA”) guidelines, a manufacturer of portable bed rails is small if it has 500 or fewer employees, and an importer is considered small if it has 100 or fewer employees. Based on these guidelines, nine of the domestic manufacturers and all of the domestic importers known to be supplying the U.S. market are small. There may be additional unknown small manufacturers and importers operating in the U.S. market as well.

The Juvenile Product Manufacturers Association (“JPMA”) runs a voluntary certification program for several juvenile products. Five manufacturers supply portable bed rails to the U.S. market that are compliant with the ASTM standard. Among them, four are JPMA-certified as being compliant with the current ASTM voluntary standard, and one claims compliance with the ASTM standard. Of the importers, one is JPMA-certified, and one claims compliance. JPMA estimates that current annual sales of portable bed rails are approximately 750,000 units, and retail sales are approximately $20 million. This estimate is similar to a 2003 sales estimate provided by JPMA. No information is available about the average product life of portable bed rails; if, for example, portable bed rail sales are assumed to have remained constant and portable bed rails remain in use for three to five years, there might be 2.25 million to 3.75 million portable bed rails in use. National estimates of portable bed rail product injuries are not available because National Electronic Injury Surveillance System (“NEISS”) data does not allow for clear identification of portable bed rail incidents. Therefore, the risk of injury associated with the number of products in use cannot be calculated.

Out of the 14 firms currently known to be producing or selling portable bed rails in the United States, one is a large domestic manufacturer, nine are small domestic manufacturers, and three are small domestic importers; and there is insufficient information regarding the size or supply source of the remaining firm. The impact on the 12 small domestic firms could be significant. However, the impact of the proposed standard on small manufacturers could differ, based on whether their products are compliant with the voluntary ASTM F 2085-10a. Of the nine small domestic manufacturers, five produce portable bed rails that are certified as compliant by JPMA or claim to be in compliance with the voluntary standard. The four noncompliant manufacturers may require substantial modifications to meet both the ASTM standard and the proposed requirements. The costs associated with these modifications could include product design, development and marketing staff time, product testing, and focus group expenses. There may be increased costs of production as well, particularly if additional materials are required. The actual cost of such an effort is unknown but could be significant for some firms. However, the impact of these costs may be mitigated if they are treated as new product expenses and amortized.

The impact of the proposed standard on the five compliant firms may be less significant because they already comply with the voluntary standard. However, even ASTM-compliant portable bed rails currently on the market will require modifications to meet the proposed changes. Any product redesign would entail costs similar to those outlined for non-ASTM compliant firms. Some ASTM-compliant firms may opt to preassemble the critical assembly components rather than redesign their product. Preassembled products may require larger shipping boxes, and there may be higher shipping costs associated with shipping larger boxes. To the extent that retailers charge high stocking and inventory fees, firms may face additional costs. Manufacturers may be able to offset these fees if they are able to pass on some of the expense to consumers.

While preassembly may reduce product redesign costs, meeting a requirement that critical installation components be affixed permanently may also require some product redesign. There will be some costs associated with redesign. In addition, all manufacturers will need to modify existing warning labels. A new warning label poses a small burden because it represents a minor modification. Costs associated with the new warning label would be low because no new materials are used. At least one small manufacturer's product line consists entirely or primarily of nonrigid portable bed rails. This firm may need to alter the warning label but otherwise is not likely to be affected significantly by the proposed standard.

Of the three small domestic importers, two import portable bed rails that are certified compliant by JPMA or claim to be in compliance with the voluntary standard. All of these small importers would need to find an alternate source of portable bed rails if their existing supplier does not come into compliance with the new requirements of the proposed standard. The cost to importers may increase, and, in turn, they may pass on some of those increased costs to consumers. Some importers may respond to the rule by discontinuing the import of their portable bed rails. However, the impact of such a decision may be lessened by replacing the noncompliant portable bed rail with a complying product or another juvenile product. Deciding to import an alternative product would be a reasonable and realistic way for most importers to offset any lost revenue, given that most import a variety of products. However, for small importers whose product lines rely largely on portable bed rails, substituting another product may not be realistic. The impact on these small importers likely would be more significant.

If the current voluntary standard is adopted without any modifications, the impact on small businesses potentially could be reduced in terms of costs for manufacturers and importers because redesign would not be required. Small manufacturers and importers who are compliant with the voluntary standard would have a reduced burden. However, firms that are not in compliance with the ASTM standard may still need to make substantial product changes to meet ASTM F 2085-10a. A second alternative to reduce the impact on small businesses would be to set an effective date later than six months. This would allow suppliers additional time to modify or develop compliant portable bed rails and spread the associated costs over a longer period of time.

It is possible that the proposed standard, if finalized, could have a significant impact on some small firms. The extent of these costs is unknown, but because product redevelopment would likely be necessary, it is possible that the costs could be large for some firms. Additionally, all manufacturers eventually will be subject to third party testing and certification requirements, as discussed in section L below. There will likely be some additional costs associated with third party testing and certification.

However, at least some costs are expected to be passed on to consumers without a reduction in the firms' ability to compete because of the specialfeatures associated with these products. We invite comment on what these costs may be, whether they may be passed on to the consumer, and how these costs will impact small businesses. We also seek information on the effect on retailers (e.g.,the impact of increased package size on the number of units kept in stock).

The Commission's environmental review regulation at 16 CFR part 1021 has established categories of actions that normally have little or no potential to affect the human environment and therefore do not require either an environmental assessment or an environmental impact statement. The proposed rule is within the scope of the Commission's regulation, at 16 CFR 1021.5(c)(1), which provides a categorical exclusion for rules that provide design or performance requirements for products. Thus, no environmental assessment or environmental impact statement for this rule is required.

This proposed rule contains information collection requirements that are subject to public comment and review by the Office of Management and Budget (“OMB”) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). We describe the provisions in this section of the document with an estimate of the annual reporting burden. Our estimate includes the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing each collection of information.

We particularly invite comments on: (1) Whether the collection of information is necessary for the proper performance of the CPSC's functions, including whether the information will have practical utility; (2) the accuracy of the CPSC's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility, and clarity of the information to be collected; (4) ways to reduce the burden of the collection of information on respondents, including the use of automated collection techniques, when appropriate, and other forms of information technology; and (5) estimated burden hours associated with label modification, including any alternative estimates.

Title:Safety Standard for Portable Bed Rails.

Description:The proposed rule would require each portable bed rail to comply with ASTM F 2085-10a,Standard Consumer Safety Specification for Portable Bed Rails.Sections 9, 10, and 11 of ASTM F 2085-10a contain requirements for marking and instructional literature.

Description of Respondents:Persons who manufacture or import portable bed rails.

We estimate the burden of this collection of information as follows:

Our estimates are based on the following:

Proposed § 1224.2(a) would require each portable bed rail to comply with ASTM F 2085-10a. Sections 9 and 11 of ASTM F 2085-10a contain requirements for marking, labeling, and instructional literature that are disclosure requirements, thus falling within the definition of “collections of information” at 5 CFR 1320.3(c).

Section 9.1.1 of ASTM F 2085-10a requires that the name and the place of business (city, state, mailing address, including zip code, or telephone number) of the manufacturer, importer, distributor, or seller be clearly and legibly marked on each product and its retail package. Section 9.1.2 of ASTM F 2085-10a requires a code mark or other means that identifies the date (month and year as a minimum) of manufacture.

There are 14 known firms supplying portable bed rails to the U.S. market. Seven of the 14 firms are known to produce labels that comply with these sections of the standard, so there would be no additional burden on these firms. The remaining seven firms are assumed to use labels on their products and their packaging but would need to make some modifications to their existing labels. The estimated time required to make these modification is about 1 hour per model. Each firm supplies an average of two different models of portable bed rails; therefore, the estimated burden hours associated with labels is 1 hour × 7 firms × 2 models per firm = 14 annual hours.

We estimate that the hourly compensation for the time required to create and update labels is $28.00 (Bureau of Labor Statistics, September 2010, all workers, goods-producing industries, sales, and office, Table 9). Therefore, the estimated annual cost to industry associated with the Commission-recommended labeling requirements is $392 ($28.00 per hour × 14 hours = $392).

Section 11.1 of ASTM F 2085-10a requires instructions to be supplied with the product. Portable bed rails are products that generally require assembly, and products sold without such information would not be able to compete successfully with products supplying this information. Under the OMB's regulations (5 CFR 1320.3(b)(2)), the time, effort, and financial resources necessary to comply with a collection of information that would be incurred by persons in the “normal course of their activities” are excluded from a burden estimate, where an agency demonstrates that the disclosure activities required to comply are “usual and customary.” Therefore, because the CPSC is unaware of portable bed rails that: (a) Generally require some installation, but (b) lack any instructions to the user about such installation, we estimate tentatively that there are no burden hours associated with the instructions requirement in section 11.1 of ASTM F 2085-10a because any burden associated with supplying instructions with portable bed rails would be “usual and customary” and not within the definition of “burden” under the OMB's regulations. Based on this analysis, the proposed standard for portable bed rails would impose a burden to industry of 14 hours at a cost of $392 annually.

In compliance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)), we have submitted the information collection requirements of this rule to the OMB for review. Interested persons are requested to submit comments regarding information collection by May 11, 2011, to the Officeof Information and Regulatory Affairs, OMB (see ADDRESSES).

Section 26(a) of the CPSA, 15 U.S.C. 2075(a), provides that where a “consumer product safety standard under [the CPSA]” is in effect and applies to a product, no state or political subdivision of a state may either establish or continue in effect a requirement dealing with the same risk of injury unless the state requirement is identical to the Federal standard. Section 26(c) of the CPSA also provides that states or political subdivisions of states may apply to the Commission for an exemption from this preemption under certain circumstances. Section 104(b) of the CPSIA refers to the rules to be issued under that section as “consumer product safety rules,” thus implying that the preemptive effect of section 26(a) of the CPSA would apply. Therefore, a rule issued under section 104 of the CPSIA will invoke the preemptive effect of section 26(a) of the CPSA when it becomes effective.

Section 14(a) of the Consumer Product Safety Act (“CPSA”) imposes the requirement that products subject to a consumer product safety rule under the CPSA, or to a similar rule, ban, standard, or regulation under any other act enforced by the Commission, be certified as complying with all applicable CPSC-enforced requirements. 15 U.S.C. 2063(a). Such certification must be based on a test of each product or on a reasonable testing program or, for children's products, on tests on a sufficient number of samples by a third party conformity assessment body accredited by the Commission to test according to the applicable requirements. As discussed in part K of this preamble, section 104(b)(1)(B) of the CPSIA refers to standards issued under that section, such as the rule for portable bed rails proposed in this notice, as “consumer product safety standards.” Furthermore, the designation as “consumer product safety standards” subjects such standards to certain sections of the CPSA, such as section 26(a) of the CPSA, regarding preemption. By the same reasoning, such standards also would be subject to section 14 of the CPSA, regarding testing and certification. Therefore, any such standard would be considered a consumer product safety rule to which products subject to the rule must be certified.

Because portable bed rails are children's products, certifications of compliance must be based on testing conducted by a CPSC-approved third party conformity assessment body. In the future, we will issue a notice of requirements to explain how laboratories can become accredited as third party conformity assessment bodies to test to the new safety standard. We seek comment on the testing requirements of this standard, particularly comment on whether any further specificity is required for the testing procedures and equipment and comment on whether the testing requirements are reliable, replicable, and sufficiently specific to allow laboratories to set pass/fail criteria for compliance determinations. We also seek comment on what a testing program might entail for portable bed rails.

Portable bed rails also must comply with all other applicable CPSC requirements, such as the lead content and phthalate content requirements in sections 101 and 108 of the CPSIA; the tracking label requirement in section 14(a)(5) of the CPSA; and the consumer registration form requirements in section 104 of the CPSIA.

Therefore, the Commission proposes to amend Title 16 of the Code of Federal Regulations by adding part 1224 to read as follows:

In theFederal Registerof October 3, 2000 (65 FR 58968), we published an advance notice of proposed rulemaking (“ANPR”), which initiated a rulemaking proceeding that could result in a rule banning portable bed rails that present an unreasonable risk of injury under the FHSA. After publication of the ANPR, we worked with the voluntary standards group, ASTM International (formerly known as the American Society for Testing and Materials), which added provisions in its standard for portable bed rails, ASTM F 2085,Standard Consumer Safety Specification for Portable Bed Rails,to address entrapment hazards. ASTM subsequently revised its standard to also address the structural integrity of bed rails. The current edition of the standard is ASTM F 2085-10a.

The Consumer Product Safety Improvement Act of 2008 (“CPSIA”, Pub. L. 110-314) was enacted on August 14, 2008. Section 104(b) of the CPSIA requires the Commission to promulgate consumer product safety standards for durable infant or toddler products. These standards are to be “substantially the same as” applicable voluntary standards or more stringent than the voluntary standard if the Commission concludes that more stringent requirements would further reduce the risk of injury associated with the product. Elsewhere in this issue of theFederal Register, we are publishing a proposed rule that would establish safety standards for portable bed rails that would incorporate by reference voluntary standard ASTM F 2085-10a,Standard Consumer Safety Specification for Portable Bed Rails,with certain modifications to strengthen the standard, making it more stringent and reducing the risk of injury associated with these products, including provisions that address foam and inflatable bed rail products, and new performance requirements to reduce the likelihood of misassembly and misinstallation of portable bed rails by consumers.

The rulemaking that the Commission is now initiating under section 104(b) of the CPSIA proposes to establish new requirements for portable bed rails that will include the ASTM F 2085-10a,Standard Consumer Safety Specification for Portable Bed Rails,with modifications. Accordingly, we are withdrawing the October 3, 2000 ANPR and terminating that rulemaking.

We encourage you to participate in this rulemaking by submitting comments and related materials. All comments received will be posted without change tohttp://www.regulations.govand will include any personal information you have provided.

If you submit a comment, please include the docket number for this rulemaking (USCG-2011-0182), indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation. You may submit your comments and material online (viahttp://www.regulations.gov) or by fax, mail, or hand delivery, but please use only one of these means. If you submit a comment online viahttp://www.regulations.gov,it will be considered received by the Coast Guard when you successfully transmit the comment. If you fax, hand deliver, or mail your comment, it will be considered as having been received by the Coast Guard when it is received at the Docket Management Facility. We recommend that you include your name and a mailing address, an e-mail address, or a telephone number in the body of your document so that we can contact you if we have questions regarding your submission.

To submit your comment online, go tohttp://www.regulations.gov,click on the “submit a comment” box, which will then become highlighted in blue. In the “Document Type” drop down menu select “Proposed Rule” and insert “USCG-2011-0182” in the “Keyword” box. Click “Search” then click on the balloon shape in the “Actions” column. If you submit your comments by mail or hand delivery, submit them in an unbound format, no larger than 81/2by 11 inches, suitable for copying and electronic filing. If you submit comments by mail and would like to know that they reached the Facility, please enclose a stamped, self-addressed postcard or envelope. We will consider all comments and material received during the comment period and may change the rule based on your comments.

To view comments, as well as documents mentioned in this preamble as being available in the docket, go tohttp://www.regulations.gov,click on the “read comments” box, which will then become highlighted in blue. In the “Keyword” box insert “USCG-2011-0182” and click “Search.” Click the “Open Docket Folder” in the “Actions” column. You may also visit the Docket Management Facility in Room W12-140 on the ground floor of the Department of Transportation West Building, 1200 New Jersey Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. We have an agreement with the Department of Transportation to use the Docket Management Facility.

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

We do not now plan to hold a public meeting. But you may submit a request for one using one of the four methods specified underADDRESSES. Please explain why you believe a public meeting would be beneficial. If we determine that one would aid this rulemaking, we will hold one at a time and place announced by a later notice in theFederal Register.

On June 25, 2011, the Baltimore Dragon Boat Club will sponsor Dragon Boat Races in the Patapsco River, Northwest Harbor, at Baltimore, MD. The event will consist of approximately 15 teams rowing Chinese Dragon Boats in heats of 2 or 3 boats for a distance of 500 meters. Due to the need for vessel control during the event, the Coast Guard will temporarily restrict vessel traffic in the event area to provide for the safety of participants, spectators and other transiting vessels

The Coast Guard proposes to establish temporary special local regulations on specified waters of the Patapsco River, Northwest Harbor, in Baltimore, MD. The regulations will be in effect from 6 a.m. to 6 p.m. on June 25, 2011. In the case of inclement weather this marine event may be postponed and rescheduled for 6 a.m. to 6 p.m. on June 26, 2011. The regulated area includes all waters of the Patapsco River, Northwest Harbor, in Baltimore, MD, within an area bounded by the following lines of reference; bounded on the west by a line running along longitude 076°35′35″ W; bounded on the east by a line running along longitude 076°35′10″ W; bounded on the north by a line running along latitude 39°16′40″ N; and bounded on the south by the shoreline between the east and west lines of reference. The effect of this proposed rule will be to restrict general navigation in the regulated area during the event. Except for persons or vessels authorized by the Coast Guard Patrol Commander, no person or vessel may enter or remain in the regulated area. Vessel traffic will be allowed to transit the regulated area at slow speed between heats, when the Coast Guard Patrol Commander determines it is safe to do so. These regulations are needed to control vessel traffic during the event to enhance the safety of participants, spectators and transiting vessels.

We developed this proposed rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on 13 of these statutes or executive orders.

This proposed rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, as supplemented by Executive Order 13563 and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order.

We expect the economic impact of this proposed rule to be so minimal that a full Regulatory Evaluation under the regulatory policies and procedures of DHS is unnecessary. Although this regulation will prevent traffic from transiting a portion of the Patapsco River during the event, the effect of this regulation will not be significant due to the limited duration that the regulatedarea will be in effect and the extensive advance notifications that will be made to the maritime community via the Local Notice to Mariners and marine information broadcasts, so mariners can adjust their plans accordingly. Additionally, the regulated area has been narrowly tailored to impose the least impact on general navigation yet provide the level of safety deemed necessary. Vessel traffic will be able to transit the regulated area at slow speed between heats, when the Coast Guard Patrol Commander deems it is safe to do so.

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this proposed rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.

The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule would not have a significant economic impact on a substantial number of small entities. This proposed rule would affect the following entities, some of which might be small entities: The owners or operators of vessels intending to transit or anchor in the effected portions of the Patapsco River during the event.

Although this regulation prevents traffic from transiting a portion of the Patapsco River, Northwest Harbor during the event, this proposed rule will not have a significant economic impact on a substantial number of small entities for the following reasons. This proposed rule would be in effect for only a limited period. Vessel traffic will be able to transit the regulated area between heats, when the Coast Guard Patrol Commander deems it is safe to do so. Before the enforcement period, we will issue maritime advisories so mariners can adjust their plans accordingly.

If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (see ADDRESSES) explaining why you think it qualifies and how and to what degree this rule would economically affect it.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this proposed rule so that they can better evaluate its effects on them and participate in the rulemaking. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact Coast Guard Sector Baltimore, MD. The Coast Guard will not retaliate against small entities that question or complain about this proposed rule or any policy or action of the Coast Guard.

This proposed rule would call for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520.).

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this proposed rule under that Order and have determined that it does not have implications for federalism.

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this proposed rule would not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

This proposed rule would not effect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.

This proposed rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.

We have analyzed this proposed rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and would not create an environmental risk to health or risk to safety that might disproportionately affect children.

This proposed rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.

We have analyzed this proposed rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.

The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g.,specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies.

This proposed rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.

We have analyzed this proposed rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the NationalEnvironmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have made a preliminary determination that this action is one of a category of actions which do not individually or cumulatively have a significant effect on the human environment. This proposed rule involves implementation of regulations within 33 CFR Part 100 applicable to organized marine events on the navigable waters of the United States that could negatively impact the safety of waterway users and shore side activities in the event area, and is categorically excluded from further analysis under paragraph 34(g) of the Commandant Instruction. This category of water activities includes but is not limited to sail boat regattas, boat parades, power boat racing, swimming events, crew racing, canoe and sail board racing. We seek any comments or information that may lead to the discovery of a significant environmental impact from this proposed rule.

For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR part 100 as follows:

In January 2007, the MSA was reauthorized and included a new provision requiring each FMP to use ACLs to prevent overfishing, including measures to ensure accountability, should the ACLs be exceeded. For fishery resources that were determined to be overfished, the MSA requires that such measures be implemented by 2010. For fishery resources that are not overfished, such measures must be implemented by 2011. Scallop fishery management measures to comply with the MSA's ACL and AM requirements are required for 2011, because the scallop resource is not overfished. To meet this requirement, the Council initiated development of Amendment 15 on March 5, 2008, by publishing a Notice of Intent to develop Amendment 15 (73 FR 11888, March 5, 2008) and prepare an EIS to analyze the impacts of the proposed management alternatives. The Council intended that Amendment 15 would address three goals: (1) Bring the Scallop FMP into compliance with new requirements of the reauthorized MSA; (2) address excess capacity in the limited access scallop fishery; and (3) consider measures to adjust several aspects of the overall program to make the Scallop FMP more effective. Following the public comment period that ended on August 23, 2010, the Council adopted Amendment 15 on September 29, 2010. The Council voted to adopt most of the measures proposed in the amendment except permit stacking and leasing alternatives that had been designed to address excess capacity, after considering extensive written and oral public comment on the measures. Ultimately the Council rejected these measures due to concerns that the measures would have unacceptable negative economic and social impacts on the scallop fleet and fishing communities.

Amendment 15 would establish the mechanism for implementing ACLs and AMs, which in turn would generate scallop fishery specifications, including days-at-sea (DAS), access area trip allocations, and individual fishing quotas (IFQs). Amendment 15 does not include actual catch limits and fishery specifications. These specifications will be established through the separate action of Framework 22 to the FMP for fishing years (FYs) 2011, 2012, and 2013. Framework 22 includes specific measures that address the change from DAS, access areas, and trip allocations that became effective on March 1, 2011, to different allocations implemented under Framework 22. The Council adopted Framework 22 and submitted it to NMFS for review. NMFS' review of Framework 22 is on the same timeline as Amendment 15.

The Council has reviewed the Amendment 15 proposed regulations as drafted by NMFS and deemed them to be necessary and appropriate as required by section 303(c) of the MSA.

Amendment 15 would establish how the Scallop FMP would account for all catch in the scallop fishery and would include designations of Overfishing Limit (OFL), Acceptable Biological Catch (ABC), ACLs, and Annual Catch Targets (ACT) for the scallop fishery, as well as scallop catch for the Northern Gulf of Maine (NGOM), incidental, and State waters catch components of the scallop fishery. The scallop fishery assessment would determine the exploitable biomass, including an assessment of discard and incidental mortality (mortality of scallops resulting from interaction, but not capture, in the scallop fishery). Based on the assessment, OFL would be specified as the level of landings, and associated fishing mortality rate (F) that, above which, overfishing is occurring. OFL would account for landings of scallops in State waters by vessels without Federal scallop permits. The current assessment of the scallop fishery (SAW 50, 2010) determined that the F associated with the OFL is 0.38. Since discard and incidental mortality are accounted for in the scallop resource assessment and removed prior to setting ABC, the specification of ABC, ACL, and ACT, as well as the NGOM and incidental catch, are represented by landings as a proxy for catch. ABC would be equal to overall ACL, but to account for scientific uncertainty, ABC would be less than OFL, with an associated F that has a 25-percent probability of exceeding F associated with OFL (i.e.,a 75-percent probability of being below the F associated with OFL). SAW 50 determined that the F associated with the ABC/ACL is 0.32. Catch from the NGOM would be established at the ABC/ACL level, but would not be subtracted from ABC/ACL. Since this portion of the scallop fishery is not part of the scallop assessment, the catch would be added and specified as a separate Total Allowable Catch (TAC) in addition to ABC/ACL. After removing observer set-aside and RSA (1 percent of the ABC/ACL and 1.25 M lb (567 mt) (proposed in Amendment 15), respectively), Amendment 15 would establish separate sub-ACLs for the limited access (LA) and LAGC fisheries. To account for management uncertainty, Amendment 15 proposes ACTs for each fleet. For the LA fleet, the ACT would have an associated F that has a 25-percent chance of exceeding ABC. The F associated with this ACT is currently estimated to be 0.28. For the LAGC fleet, the ACT would be set equal to the LAGC fleet's sub-ACL.

Amendment 15 proposes to modify the current OFD to provide for better management of the scallop fishery under area rotation. The proposed Hybrid OFD combines the overfishing threshold from the status quo overfishing definition for open areas with a time-averaged fishing mortality F approach for access areas. The F target in the open areas would be set at a level that is no higher than the overfishing threshold (currently F = 0.38). In access areas, it would be set annually at a level that results in F no higher than FMSYwhen averaged over time with the F in that access area, including times when the access area was closed. The combined target F for all areas could be no higher than that which gives a 25-percent probability of exceeding the F associated with ABC (F = 0.32), which is currently calculated to be F = 0.28, taking into account all sources of F in the scallop fishery.

The current OFD and overfishing reference points are based on the assumption that F is spatially uniform. In the scallop fishery this assumption is inaccurate, because of unfished biomass in closed areas, variable Fs in access areas, and spatially variable fishing mortality in open areas. Under the current OFD, closed and access areas protect the scallop stock fromrecruitment overfishing, but growth overfishing may occur in the open areas because the current OFD averages spatially across open and closed areas,i.e.,F is higher in open areas to compensate for the zero F in closed areas. The greater the fraction of scallops in the closed areas, the more ineffective the current OFD becomes. Additionally, when more biomass is within closed areas, the estimated whole-stock F may be more sensitive to recruitment and measurement error than to changes in effort. Therefore, while the scallop fishery's current OFD is consistent with MSA requirements, and has been effective at keeping the scallop fishery above the overfished level and preventing overfishing overall, certain resource and fishery conditions as described above may reduce the effectiveness of the FMP.

The current OFD states that FMAXwill be used as a proxy for FMSY. However, SAW 50 approved a direct estimate of FMSY. Therefore, Amendment 15 would replace the current BMAXand FMAXwith BMSYand FMSY. Final results from SAW 50 were available in August 2010, and both the Scallop Committee and the Council's Scientific and Statistical Committee (SSC) reviewed the results and agreed that the existing OFD should be updated to reflect new biological reference points based on BMSYand FMSY. Under Amendment 15, the new overfishing definition would read:

The proposed changes to the OFD would also require revisions of the current framework provisions in the scallop fishery regulations at 50 CFR 648.55. Under the current OFD, the framework adjustment process included provisions that ensure that measures achieve optimum yield (OY) on a continuing basis. These provisions were established as part of Amendment 10 to the FMP because of the potential inconsistency between rotational area management and use of a spatially-average OFD, whereby open area fishing mortality may be elevated relative to the condition of the resource in open areas, thus preventing OY from being achieved. Because the proposed OFD drastically reduces the risk of inappropriate open area fishing levels, due to application of the threshold F to drive open area fishing levels, the framework provisions specifically designed to adjust Council recommendations to ensure that OY is achieved are no longer necessary.

Amendment 15 includes two different assessments of scientific uncertainty, based on the following scientific parameters that are utilized in scallop resource and fishery assessments:

• Growth;

• Maturity and fecundity;

• Shell height/meat weight relationship;

• Natural mortality;

• Catch data;

• Discards and discard mortality;

• Incidental mortality;

• Commercial shell height data;

• Commercial and survey gear selectivity;

• Commercial and survey dredge efficiency;

• Stock-recruitment relationship; and

• Density dependence.

The first assessment of scientific uncertainty is qualitative and is based on the level of uncertainty, importance, and effect of the parameters. Uncertainty, importance, and effect of the parameters on the scallop resource and fishery assessment are characterized numerically on a scale of low to high. This first assessment of scientific uncertainty would provide managers with an indication of the overall level of scientific uncertainty, which would help determine a buffer between the OFL and ABC. The Council concluded in Amendment 15 that scientific uncertainty in the scallop resource and fishery is low.

The second consideration of scientific uncertainty enables the Council to establish ABC that has a low risk of exceeding OFL. Based on the parameters for determining scientific uncertainty, an analytical model developed by the PDT specifies the probability of exceeding the OFL at a specified F associated with the corresponding catch level. Using this model, and given the overall low level of scientific uncertainty, the ABC control rule would set ABC at a level that has a 25-percent probability of exceeding OFL (i.e.,a 75-percent probability that it will not exceed OFL). This value could be modified through the framework adjustment process.

Scallop catch from State waters by vessels not issued a Federal scallop permit is a relatively small component of overall scallop catch, and the scallop resource in State waters is not part of the Federal scallop resource survey. To account for scallop landings from State waters, the Council's Scallop Plan Development Team (PDT) will estimate landings annually, based on available State waters landings information, and include it in the specification of OFL. The amount of scallop landings in State waters would then be specified as a separate level of landings that would be compared to actual landings each year, and adjusted as necessary in subsequent years. This component of overall catch is not specified as an ACL and has no associated AM, since there is no Federal authority to adjust catch by vessels without a Federal permit.

Scallop catch in the NGOM would be specified similar to State waters scallop catch, except that the NGOM landings level would be based on historical landings or available resource surveys in the NGOM, and would be included in the specification of ABC. While there is no Federal survey in the NGOM, independent surveys have been conducted, and if continued, would provide survey information for NGOM landings specifications each year. Although this component of overall scallop catch is not formally an ACL, an overage is accounted for in the subsequent year through a reduction of the landings limit that is equal to the overage from the prior year.

Incidental catch has been estimated to be 50,000 lb (24,948 kg), and data continue to support this value, based on historical and predicted landing levels. Incidental catch would be removed from ABC prior to establishing the research and observer set-asides and ACLs for the limited access and LACG IFQ fleets. This component of overall scallop catch does not have a specific AM, but if incidental catch is higher than predicted, the landings limit would be adjusted in the subsequent year(s) by removing more incidental catch from ABC.

The LA and LAGC IFQ fleets would be allocated landings as sub-ACLs of the overall scallop fishery ACL with the same allocation values that were established under Amendment 11 to the FMP: LA vessels would be allocated 94.5 percent of the ABC/ACL landings; and LAGC IFQ vessels would beallocated 5.5 percent of the ABC/ACL landings. Both allocations would be made after deducting incidental catch and research and observer set-asides from ABC. Sub-ACLs were established for these two fleets so that AMs would be based on each fleet's harvest relative to its own ACL, without requiring that one fleet would be penalized for an overage of the other. Both fleets would have carryover provisions (existing for the LA and proposed under Amendment 15 for the LAGC fleet) and RSA catch could be carried over into the subsequent year. For the purpose of accounting relative to ABC and ACL, landings from carryover DAS, IFQ, or TAC would apply to the FY in which they are landed (i.e.,not to the FY for which they were allocated).

Amendment 15 proposes that management uncertainty in the scallop fishery mainly results from the uncertainty associated with carryover DAS, vessel upgrades and replacements, and open area catch under DAS. The uncertainty associated with these measures results from a difference between estimated vessel efficiency and landings per unit effort (LPUE), and realized efficiency and LPUE during the course of the fishing year. Management uncertainty for the LAGC IFQ fleet is considered very low because it would result from landings in excess of a vessel's IFQ, which can be audited and accounted for through data reviews each year. Although ACT could be specified for the LAGC fishery, it would be equal to the fleet's ACL initially, unless revised by the Council. An ACT for the LA fleet to account for management uncertainty would be set at a level with an associated F that has a 25-percent probability of exceeding ABC, which is currently 0.28.

The primary AM for the LA fleet requires a DAS reduction for the fleet in open areas that would approximate the catch overage of the ACT. Using the ACT for determining the overage is designed to account for management uncertainty and to better prevent vessels from exceeding the fleet's ACL. The DAS reduction would be distributed evenly to limited access vessels. For example, an overage of 1,500,000 lb (680 mt) would have a DAS equivalent of 625 DAS, based on an LPUE of 2,400 lb (1.1 mt) per DAS. Divided across 327 full-time vessels, the DAS reduction per vessel would be 1.9 DAS. Part time vessel DAS would be reduced by 0.76 DAS (40 percent of the full time deduction) and occasional vessel DAS would be reduced by 0.16 DAS (1/12th of the full time deduction). Part time and occasional proportional deductions are consistent with the way that DAS are assigned in the fishery. The AM would take effect in the fishing year following the fishing year in which the ACL was exceeded. Since the AM would apply mid-year, vessels may have already used more DAS in that fishing year than are ultimately allocated after applying the AM. If this occurs, a vessel that exceeds the DAS it is allocated after the AM is applied would have the amount of DAS used in excess of the vessel's final DAS allocation after the AM is applied deducted from its DAS allocation in the subsequent fishing year. For example, a vessel initially allocated 32 DAS in 2011 uses all 32 DAS prior to application of the AM. If, after application of the AM, the vessel's DAS allocation is reduced to 31 DAS, the vessel's DAS in 2012 would be reduced by 1 DAS.

Even if the ACL is exceeded, triggering the AM for the LA fleet, the F associated with the fleet's ACL may not be exceeded if, in retrospect, some of the assumptions for determining the ACL, such as LPUE relative to the status of the resource or the biomass were underestimated. Since the overall goal of the ACL is to ensure that F limits are not exceeded, enacting an AM would not be necessary if the F limits are not exceeded. To address this, Amendment 15 includes an exception provision (called a “disclaimer” in the amendment) that would stop the AM from taking effect if, in an analysis of the preceding fishing year before the AM goes into effect, the actual F resulting from the fishery in the prior year was one standard deviation below the overall F for the fleet's ACL. With an F = 0.28 for the ACL, one standard deviation below would be F = 0.24. If the fishery's F is below 0.24, the AM would not be implemented. However, if the fishery's F is 0.24 or above, the AM would take effect. When fishery data are available after the FY ends, and before the AM takes effect, the Scallop PDT will evaluate the fishery, determine the F and would recommend through the Council whether or not the AM should be implemented. To ensure compliance with applicable laws, the Regional Administrator would have discretion to implement the exception or implement the AM in accordance with the Administrative Procedure Act (APA), 5 U.S.C. 553et seq.,after considering the Council's recommendation.

The application of the AM described in item 8 above, and the AM exception described in this item 9, would be considered at the same time to ensure that multiple adjustments of DAS do not occur in one fishing year, if possible. The decision to implement the AM or the AM exception would be made by the Regional Administrator on or about September 30 of each year.

If the LA fleet's AM exception is enacted, a portion of landings would be re-distributed to the LAGC fleet for equity purposes. Under the exception, the LA fleet would have exceeded its ACL, but no AM would be put in place, as described in item 9 above. Because the LA fleet still would have harvested more scallops than allocated, without being held accountable, an inequity would be created. Had the ACL been higher, commensurate with the analysis of the prior fishing year, those “extra” scallops could have been distributed to the LAGC IFQ fleets as well. To account for the inequity, the LAGC IFQ fleet would be allocated 5.5 percent of the LA fleet's overage of its ACL. The additional allocation to the LAGC IFQ fleet would be distributed through adjustment of IFQs, upon implementation of the exception on or about September 30 of each year. An amount equivalent to the amount allocated to the LAGC IFQ fleet would be deducted from the LA ACL. The deduction would not affect the LA fleet's ACT or DAS allocations, but would establish a lower threshold for the LA fishery for triggering AMs.

Amendment 15 proposes that, if an LAGC vessel exceeds its IFQ, its IFQ would be reduced by the amount equal to the overage as soon as possible in the fishing year immediately following the fishing year in which the IFQ overage occurred. Since the AM would apply mid-year, vessels may have already used more IFQ in that fishing year than is ultimately allocated after applying the AM. If this occurs, a vessel that exceeds the IFQ it is allocated after the AM is applied would have the amount of IFQ landed in excess of the vessel's final IFQ allocation after the AM is applied deducted from its IFQ allocation in the subsequent fishing year. For example, a vessel with an initial IFQ of 1,000 lb (453.6 kg) in 2010 landed 1,200 lb (544.3 kg) of scallops in 2010, and is initially allocated 1,300 lb (589.7 kg) of scallops in 2011. That vessel would be subject to an IFQ reduction equal to 200 lb (90.7 kg) to account for the 200 lb (90.7 kg) overage in 2010. If that vessel lands 1,300 lb (589.7 kg) of scallops in 2011 prior to application of the 200 lb(90.7 kg) deduction as the AM, the vessel would be subject to a deduction of 200 lb (90.7 kg) in 2012.

For vessels involved in a temporary IFQ transfer, the entire deduction shall apply to the vessel that acquired IFQ, not the transferring vessel. A vessel that has an overage that exceeds its IFQ in the subsequent fishing year shall be subject to an IFQ reduction in subsequent years until the overage is paid back. For example, a vessel with an IFQ of 1,000 lb (454 kg) in each year over a 3-year period, that harvests 2,500 lb (1,134 kg) of scallops the first year, would have a 1,500-lb (680-kg) IFQ deduction, so that it would have zero pounds to harvest in year 2, and 500 lb (227 kg) to harvest in year 3. A vessel that has a “negative” IFQ balance, as described in the example, could lease or transfer IFQ to balance the IFQ, provided there are no sanctions or other enforcement penalties that would prohibit the vessel from acquiring IFQ.

Applying the AM to an individual vessel's IFQ was considered appropriate because the Council determined that individual vessel overages of IFQ would be the only cause of exceeding the ACL for the IFQ fleet. A vessel that has an overage in one FY that exceeds its entire IFQ in the subsequent FY would be required to take IFQ reductions in subsequent years until the overage is paid back. For example, a vessel with an IFQ of 1,000 lb (454 kg) in each year over a 3-year period, that harvests 2,500 lb (1,134 kg) of scallops the first year, would have a 1,500-lb (680-kg) IFQ deduction, so that it would have zero pounds to harvest in year 2, and 500 lb (227 kg) to harvest in year 3. A vessel that has a “negative” IFQ balance, as described in the example, could lease IFQ to balance the IFQ, provided there are no sanctions or other enforcement actions that would prohibit the vessel from acquiring IFQ. These automatic IFQ deductions do not excuse a vessel from any enforcement actions that may be applicable for the overage. The Council determined that this individual-vessel AM would be more equitable than penalizing others in the fleet for single-vessel overages. The Council incorporated ACT into the LAGC IFQ fleet allocation, but chose not to apply any management uncertainty buffer for the fleet at this time. This could be adjusted through the framework process if an ACT is needed to address management uncertainty.

To account for YTF catch in the scallop fishery, Amendment 15 would establish sub-ACLs (called “sub” ACLs to reflect that these ACLs are part of the overall ACL established in the NE Multispecies FMP). for the Southern New England/Mid-Atlantic (SNE/MA) and Georges Bank (GB) YTF sub-ACLs for the scallop fishery. The amount of YTF estimated to be harvested annually would depend on the scallop DAS and access area allocations, and could be adjusted through the NE Multispecies FMP framework adjustment process.

Areas within the GB and SNE/MA YTF stock areas that have been pre-identified would close to scallop fishing in the FY following a FY in which the YTF sub-ACL for the scallop fishery is exceeded. These areas were identified during the final development of Amendment 15 as the statistical areas that have high bycatch of YTF in the scallop fishery. For the GB YTF stock, the closure would be in statistical area 562, which extends from just west of Closed Area II (CAII), through that closed area, and to the southeast of that closed area. In addition, a small portion of statistical area 525 within the CAII access area would also be closed. For the SNE/MA YTF stock, statistical areas 537, 539, and 613 would close under the YTF AM. Coordinates of these YTF AM closed areas are included in the proposed regulations in this proposed rule. A chart depicting the areas is in the Amendment 15 FEIS (see ADDRESSES). The Council decided that the statistical areas included in each YTF AM would close to LA vessels only; LAGC vessels would be exempt from these closures if fishing in an exempted area authorized under the NE Multispecies FMP, because these exemptions were created because bycatch of YTF in the LAGC fishery is extremely low. However, any YTF catch by LAGC vessels as they continue to fish would count toward that stock area's sub-ACL for the scallop fishery (and would contribute to an overage of the sub-ACL for the scallop fishery). The YTF closure AM would be effective in the scallop FY directly following the year in which the YTF sub-ACL is exceeded. By January 15 of each year, NMFS would determine whether the YTF sub-ACL is expected to (or has been) exceeded that year. NMFS would announce the closure to the scallop fleet as soon as possible following the determination, and the closure would take effect on March 1. The Council also specified that if the scallop fishery exceeds its YTF allocation in 2010 (specified under the NE Multispecies FMP), and that causes the entire applicable YT ACL to be exceeded for the 2010 fishing year, the scallop fishery will be subject to the applicable YTF AM. To implement the YTF AM for the 2011 fishing year, NMFS would determine the length of the closure as specified below, beginning when Amendment 15 is effective, if approved. For the 2012 fishing year and beyond, the YTF closure AM areas would remain closed for the length of time specified in the following tables, and would be in place for one fishing year only:

In order to more effectively monitor YTF bycatch in open areas, the daily vessel monitoring system (VMS) catch report that is currently required in access areas only would be required for all scallop trips in all areas. Vessel operators would be required to report the following information: Fishingvessel trip report (FVTR) serial number; date fish caught; total pounds of scallop meats kept; total pounds of YTF kept; total pounds of YTF discarded; and total pounds of all other fish kept. Vessels would be required to submit VMS catch reports for every day fished by 9 a.m. of the day following the day on which fishing occurred, consistent with access area catch reporting.

IFQ scallop vessels would be allowed to harvest 600 lb (272.2 kg) of shucked scallops or 75 bu (26.4 hL) of in-shell scallops per trip, an increase of 200 lb (90.7 kg) or 25 bu (8.8 hL) per trip from the current 400-lb (181.4-kg) or 50-bu (17.6-hL) possession/trip limit. This alternative would address concerns that the current possession limit is not economically feasible due to increased costs. The 600-lb (272.2-kg) possession limit is not expected to change the “small boat” nature of the LAGC fishery, and would remain consistent with the Council's vision for LAGC vessels, while enabling vessel owners to maintain profits under rising costs. The increase is also consistent with the conservation objectives of the FMP because landings are constrained by the IFQ allocations.

Amendment 15 proposes to allow IFQ vessels that have unused IFQ at the end of the FY to carry over up to 15 percent of their unused IFQ to the subsequent FY. Any IFQ that was leased by but not used by a vessel could also be carried over by the vessel that acquired the IFQ (for monitoring and accounting purposes, leased-in IFQ is used first, in the order acquired). For accounting purposes, the combined total of all vessels' IFQ carry-over shall be added to the LAGC IFQ fleet's applicable ACL for the carry-over year. Any IFQ carried over that is landed in the carry-over fishing year shall be counted against the ACL specified in paragraph (a)(4)(i) of this section, as increased by the total carry-over for all LAGC IFQ vessels, as specified in paragraph (h)(2)(v)(B).

This proposed measure would increase the 2-percent IFQ cap per vessel to 2.5 percent of the total IFQ allocation to allow more flexibility and promote efficiency for vessels in fishing IFQs available to them. IFQ that is carried over would not contribute to the vessel's 2.5-percent IFQ cap because the carryover is a temporary increase of the vessel's IFQ based on underharvest the prior year. Because there is also a 5-percent overall cap on how much IFQ on entity may own, a vessel owner would now be permitted to own only two vessels to meet the 5-percent ownership cap, rather than having to own more than two vessels. This alternative would provide increased flexibility to vessel owners to more effectively and efficiently fish their IFQs.

This alternative would allow LAGC IFQ permit owners to permanently transfer some or all of their quota allocation, independent of their IFQ permit, to another LAGC IFQ permit holder while retaining the permit itself. This measure would enable vessel owners additional flexibility to buy or sell IFQ without impacting other permits on their vessel. This allowance would only apply to IFQ permit holders that do not also have a LA scallop permit to prevent crossover of IFQ allocations between the two IFQ fleets that have separate allocations.

To establish compatibility with the NE Multispecies FMP, Amendment 15 would modify the EFH closed areas in the Scallop FMP by removing the four EFH closed areas that were implemented in Amendment 10 to the Scallop FMP, and it would replacing them with EFH closed areas that are identical to the EFH closed areas implemented under the NE Multispecies FMP. These areas are the Closed Area I (CAI), Closed Area II (CAII), Nantucket Lightship, Western Gulf of Maine, Jeffrey's Bank, and Cashes Ledge Habitat Closed Areas. Coordinates for the area are provided in the proposed regulations in this proposed rule. A chart depicting the areas is in the FEIS for Amendment 15 (see ADDRESSES). These areas would be closed to scallop fishing (and closed to all mobile bottom-tending gear under the NE Multispecies FMP) to minimize the adverse impacts of scallop fishing. This change in the EFH closed areas under the Scallop FMP would make the EFH closed areas consistent between the Scallop FMP and the NE Multispecies FMP, as intended under Joint Frameworks 16 to the Scallop FMP and 39 to the NE Multispecies FMP (Joint Framework 16/39) (69 FR 63460, November 2, 2004). With inconsistent areas, the scallop access areas in CAI, CAII, and the NLCA are inconsistent with the area rotation program established under the Scallop FMP because they are restricted to areas smaller than designed. These areas were originally implemented under that action, but were vacated by a Federal Court order resulting from a lawsuit on Joint Framework 16/39. That order specified that the EFH closed areas could only be changed through an FMP amendment. This proposed action would address the inconsistency while the Council continues to develop EFH measures under Phase 2 of its Omnibus EFH Amendment.

Fishery specifications in the scallop fishery are generally set every 2 years, through the biennial framework adjustment process. This alternative would extend the fishery specification process to include a third year of allocation measures that would be effective if subsequent framework actions are delayed. Currently, measures from the prior year roll over to the next FY while the implementation of the new set of management measures is pending. However, the measures that roll over are often not appropriate for the status of the resource. By setting the measures for the third year in the framework, the measures are more likely to be appropriate for the condition of the fishery and resource. Third-year measures would need to be set with sufficient precaution to take into account the uncertainty associated with projections for the third year. The third-year measures would be superseded by the measures developed in the biennial framework adjustment for that year as soon as it is implemented.

The following measures would be added to the current list of measures that can be adjusted under the Scallop FMP by framework action.

Modify the LAGC possession limit:The possession limit for LAGC vessels could be modified upward or downward by framework action. The intent is that any modification of the possession limit would not modify the nature of the LAGC fleet and would be consistent with the Council's vision to maintain a small-vessel fleet under LAGC provisions. While the Council specified in the Amendment 15 document that the possession limit adjustments could be done for IFQ vessels, it also determined that the regulations should specify that possession limit adjustments could be made through the framework process for all LAGC vessels, including LAGC NGOM and Incidental vessels.

Adjustment to aspects of ACL management:This action proposes anew management strategy under ACL management that will use many new measures. All of the measures specified in this action would be able to be modified through framework actions. The specific ACL-related measures that could be modified by framework include: Modifying associated definitions and specification of OFL, ABC, ACLs and ACTs, all of which are specifically intended to be changed in future frameworks or specification packages as new information becomes available about the resource and fishery; buffers identified for management uncertainty or scientific uncertainty (ABC control rule); AMs for scallop ACLs and other sub-ACLs allocated to the scallop fishery; monitoring and reporting requirements associated with ACLs; timing of AM measures; and adoption of sub-ACLs for other species that are not currently part of this program.

The framework action proposing the boundary change would include an analysis of the impacts of the specific boundaries considered. This additional framework authority would not allow adoption of new EFH closed areas.

Amendment 15 proposes to allocate 1.25 million lb (567 mt) of scallops for RSA, regardless of the total projected catch for the fishery. In the future, the value could be increased or decreased by framework action.

Amendment 15 includes several adjustments designed to improve the RSA Program so that it is more efficient, and so that awards under the Federal grants process can be provided near or before the start of the scallop FY on March 1. The following improvements are proposed:

Amendment 15 proposes that the announcement of the funding opportunity should be published as soon as possible in the year preceding the year in which research would be conducted. If this results in more timely reviewing and processing of awards, this would maximize time for research and compensation trips before the end of the FY. This would be facilitated by the Amendment 15 proposal to allocate 1.25 M lb (567 mt) to RSA program annually (seebelow).

Currently, research priorities, TACs for RSAs, and approved research projects are limited to 1 year. Amendment 15 would allow RSA proposals and compensation to span up to 2 years, corresponding with the biennial framework process. Projects could be awarded for 1 or 2 years. Under this alternative, applicants could apply for RSA for the first year, second year, or both. This alternative would increase flexibility for the applicant, provide funding for some longer term projects, and potentially reduce time and resources spent on the application and review process.

Currently 2 percent of access area TACs and open area DAS are set aside for the RSA program. That amount of TAC and DAS varies depending on the total TAC and DAS for the fishery. Amendment 15 would modify the scallop RSA program so that 1.25 M lb (567 mt) would be set aside for the RSA program. In addition, open area RSA would be awarded in pounds rather than DAS. Total projected catch for the fishery may vary from year to year, but the amount of catch set-aside for research would be constant at 1.25 M lb (567 mt), unless changed through a framework adjustment. Assuming a projected catch of about 50 million lb (22,680 mt) for the fishery, 1.25 M lb (567 mt) equals about 2.5 percent. This is higher than recent levels to recognize the importance of research and scallop resource surveys for the success of the area rotation program, but would not create a separate pool of RSA for scallop resource surveys.

Allocating this fixed amount could enable the grant awards to be issued earlier, because the amount of TAC available for research would be known in advance and would not change from year to year. The specific areas that would have available RSA would be identified in the framework, but RSA awards could still be made before approval of the framework, based on total scallop pounds needed to fund the research. Recipients could either choose to wait for NMFS approval of the framework to begin compensation fishing within approved access areas, or could begin compensation fishing in open areas prior to approval of the framework. The intent of this alternative is to help improve timeliness of the scallop RSA program. This should only be an issue for the first year of a framework, because area-specific RSA pounds will be known for the second year of the framework action.

Amendment 15 includes a provision that specifies that if updated analyses suggest that the price per pound estimates used in the FFO were low, and if all RSA TAC is not allocated, NMFS could allocate unused TAC to compensate awarded projects or to expand a project rather than having that RSA go unused. Amendment 15 proposes that if there is RSA TAC available after all awards are made, a project that was already awarded RSA would be permitted to apply for additional TAC to expand its research project or for compensation if the actual scallop price per pound was less than estimated. The implementation details of this proposal were not specified in Amendment 15. Therefore, under the authority of section 305(d) of the MSA, NMFS proposes that this provision would enable NMFS to provide the opportunity for reallocation of available RSA pounds as part of the original FFO for the project. The FFO would specify the conditions under which a project that has been awarded RSA could be provided additional RSA pounds as supplemental compensation to account for lower-than-expected scallop price or for expansion of the approved project.

Currently all RSA TAC has to be harvested by the end of the FY for which it is awarded. This measure would allow an RSA award recipient to harvest RSA compensation TAC for up to 3 months (i.e.,prior to June 1) into the subsequent FY. Allowing vessels involved in RSA projects to harvest RSA TAC into the next FY would provide flexibility for participating vessels and researchers, and is consistent with carryover provisions for the fishery as a whole.

Amendment 15 proposes a list of the scallop management measures from which RSA funded projects may be exempt. The researcher would need to list the measures the project is proposed to be exempt from in the RSA proposal. The researcher would not need to apply for an exempted fishing permit (EFP) to be exempt from the following restrictions: Crew restrictions; seasonal closures in access areas; and the requirement to return to port if fishing in more than one area. These exemptions would be issued by theRegional Administrator through a letter of authorization. The exemptions would be issued for research trips under the applicable RSA project. RSA compensation fishing trips would not be eligible for exemption from these restrictions because compensation trips are intended only to provide researchers with the ability to collect funds through normal fishing operations.

Although the Council recommended that the Council's Scallop Advisory Panel members play a more prominent role in setting research priorities and reviewing proposals, no proposed regulations are necessary to effectuate that recommendation. NMFS would seek more input from the Council's Scallop Advisors through the next solicitation for scallop RSA proposals. Review of RSA projects under the Federal grants program is limited to individuals who do not have any relationship or vested interest in proposed research.

Public comments are being solicited on Amendment 15 and its incorporated documents through the end of the comment period stated in this proposed rule (see DATES). NMFS has also published a Notice of Availability, with a comment period ending May 23, 2011, (76 FR 16595, March 24, 2011). All comments received by May 23, 2011, whether specifically directed to Amendment 15 or the proposed rule for Amendment 15, will be considered in the approval/disapproval decision on Amendment 15. Comments received after that date will not be considered in the decision to approve or disapprove Amendment 15. To be considered, comments must be received by close of business on the last day of the comment period; that does not mean postmarked or otherwise transmitted by that date.

Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the NMFS Assistant Administrator has determined that this proposed rule is consistent with the Scallop FMP, other provisions of the Magnuson-Stevens Act, and other applicable law, 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 a revision to a current collection-of-information requirement subject to review and approval by OMB under the Paperwork Reduction Act (PRA). Public reporting burden for this collection of information, the expansion of the VMS catch report to all areas (OMB Control Number 0648-0491), is estimated to average 2 min per response. This estimate includes the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection information.

Public comment is sought regarding: 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; 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. Send comments on these or any other aspects of the collection of information to OMB by e-mail atOIRA_Submission@omb.eop.gov,or fax to (202) 395-7285 and to the Regional Administrator at the address provided in theADDRESSESsection of this proposed rule.

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.

An IRFA has been prepared, as required by section 603 of the Regulatory Flexibility Act (RFA). The IRFA consists of the relevant analyses, including the draft IRFA, included in Amendment 15, and the preamble to this proposed rule. A summary of the analysis follows.

This action proposes to implement ACL and AMs for the scallop fishery, as well as other measures to improve management of the scallop fishery. A description of the management measures, why this action is being considered, and the legal basis for this action are contained in the preamble of this proposed rule and are not repeated here.

The proposed regulations would affect vessels with LA and LAGC scallop permits. The FEIS for Amendment 15 provides extensive information on the number and size of vessels and small businesses that would be affected by the proposed regulations, by port and State. There were 313 vessels that obtained full-time LA permits in 2010, including 250 dredge, 52 small-dredge and 11 scallop trawl permits. In the same year, there were also 34 part-time LA permits in the sea scallop fishery. No vessels were issued occasional scallop permits. By the start of FY 2010, the first year of the LAGC IFQ program, 362 IFQ permits (including 40 IFQ permits issued to vessels with a LA scallop permit), 127 NGOM, and 294 incidental catch permits were issued. Since all scallop permits are limited access, vessel owners would only cancel permits if they decide to stop fishing for scallops on the permitted vessel permanently or if they transfer IFQ to another IFQ vessel and permanently relinquish the vessel's scallop permit. This is likely to be infrequent due to the value of retaining the permit. As such, the number of scallop permits could decline over time, but would likely be less than 10 permits per year.

The RFA defines a small business entity in any fish-harvesting or hatchery business as a firm that is independently owned and operated and not dominant in its field of operation (including its affiliates), with receipts of up to $4 million annually. The vessels in the Atlantic sea scallop fishery are considered small business entities because all of them grossed less than $3 million according to the dealer's data for FYs 1994 to 2009. In FY 2009, total average revenue per full-time scallop vessel was just over $1 million, and total average scallop revenue per general category vessel was just under $80,000. The IRFA for this and prior Scallop FMP actions has not considered individual entity ownership of multiple vessels. More information about common ownership is being gathered, but the effects of common ownership relative to small v large entities under the RFA is still unclear and will be addressed in future analyses.

The Small Business Association (SBA) suggests two criteria to consider in determining the significance of regulatory impacts; namely, disproportionality and profitability. The disproportionality criterion compares the effects of the regulatory action on small versus large entities (using the SBA-approved size definition of “small entity”), not the difference between segments of small entities. Amendment 15 is not expected to have significant regulatory impacts on the basis of the disproportionality criterion, because all entities are considered to be small entities in the scallop fishery and, therefore, the proposed action would not place a substantial number of small entities at a significant competitive disadvantage relative to large entities. A summary of the economic impactsrelative to the profitability criterion is provided below under “Economic Impacts of Proposed Measures and Alternatives.”

This action would implement an expansion of current VMS catch reporting that would require all LA, LAGC IFQ, and LAGC NGOM scallop vessels to report YTF catch (kept and discards) and all other species kept (including scallops) on all scallop trips. Such reports would have to be submitted for each day fished by 9 a.m. of the day following the day on which the fishing activity occurred. Currently this requirement applies only to access area scallop trips. The expansion of the requirement to all areas would increase the current burden cost of 333 hours at a total cost of $4,995 to 1,000 hours at a total cost of $15,000 for all scallop vessels combined. The expansion is needed to monitor YTF bycatch relative to the sub-ACL for YTF proposed under Amendment 15. Amendment 15 does not duplicate, overlap, or conflict with any other Federal law.

A summary of the economic impacts of proposed and alternative measures is provided below. Detailed economic impact analysis is provided in Section 5.4 and Appendix III of the FEIS for Amendment 15 (see ADDRESSES).

Each vessel within the same permit category (i.e.,full-time, part-time, and occasional) is allocated the same number of DAS and access area trips. LAGC IFQ vessels receive 5.5 percent of the projected catch after research and observer set-asides are removed, and IFQs are proportionately allocated based on a percent share of the 5.5-percent fleetwide allocation. Therefore, those measures that affect overall projected landings will have proportional impacts on all the participants because allocations for all vessels will be adjusted up or down in the same percentage. Some of the other proposed measures are specific to each fishery, however, and they will result in differential impacts, as discussed below for each individual action. In summary, although some specific measures proposed in Amendment 15, such as the hybrid OFD, catch limits, and AMs could have some negative impacts on the revenues and profits from the scallop fishery in the short-term, the benefits from the other proposed alternatives, including the measures that would reduce scientific or management uncertainty, the modification of the EFH areas, modifications to the LAGC possession limits and other related measures are expected to offset in part or in full these short-term negative effects. As a result, the aggregate economic impacts of Amendment 15 measures, combined, in the short-term are likely to range from small negative impacts to small positive impacts. The proposed action is not expected to have significant impacts on the viability of the vessels, because these impacts are estimated to be relatively small. In addition, even with negative impacts, the profit rate is estimated to exceed 20 percent of the gross revenue in the scallop industry, providing for short-term cash reserves to finance operations through several months or years until the positive effects of the regulations start paying off. In the long-term, the economic impacts of the combined measures on the participants of the scallop are expected to be positive.

Amendment 15 includes ACLs and AMs to bring the Scallop FMP into compliance with requirements of the MSA as reauthorized in 2007. Although the Council discussed various ways of establishing ACLs throughout the development of Amendment 15, the only alternative was to take no action. Alternatives to proposed AMs would have implemented AMs a full year after the end of the fishing year in which the overage occurred. The Council considered two alternatives to the proposed revision of the OFD. One alternative maintained the current OFD and another based the OFD on a resource-wide and time-averaged approach. The Council's decision to modify the essential fish habitat (EFH) closed areas under the Scallop FMP had only the alternative to take no action. The Council considered several alternatives to the various adjustments to measures for the LAGC fishery and determined that additional alternatives were not necessary. Specifically, the Council considered various increases to the LAGC IFQ fishery possession limit, no increase to the maximum IFQ a vessel can be allocated, no allowance to carry over IFQ from one fishing year to the next, no allowance to transfer IFQ separately from the IFQ permit, and a suite of measures to regulate the formation of community fishing associations. The Council also considered several alternatives to the proposed adjustments to the scallop RSA program, including separating set-aside TAC for scallop resource surveys, and various ways of allocating RSA TAC that remains available after all approved projects are awarded in a particular year. Since the Council can only establish framework measures for those measures that are included in the FMP already, the only alternative to the proposed additions to the list of measures that can be adjusted by framework adjustments is to not add measures or add only a subset of the measures. Under the MSA, NMFS can only approve or disapprove management measures recommended by the Council. Therefore, NMFS cannot replace proposed alternatives with other measures considered by not adopted by the Council.

This new requirement is expected to have long-term economic benefits on the fishery by helping to ensure that catch limits (ACLs) are set at or below ABC, in order to prevent the resource from being overfished and overfishing from occurring. Buffers for scientific and management uncertainty would reduce the risk of fishery exceeding its ACL, thus reducing the risk of overfishing the scallop resource, with positive impacts on the overall scallop yield, revenues, and total economic benefits from the fishery. Establishing catch limits is expected to result in a similar landings stream compared to the status quo management. Even if the landing streams changed as a result of the new measures, the risk to the resource from overfishing due to scientific or management uncertainty would be minimized under the proposed measures, because these sources of uncertainty are better accounted for. This, in turn, is expected to keep the landings and economic benefits relatively more stable and reduce the uncertainty in business decisions over the long-term. The separation of an ACL into two sub-ACLs with associated ACTs is expected to have positive impacts on the scallop fishery and its subcomponents. Separating the two fleets with separate ACLs prevents one component of the fishery from impacting the catch levels of the other. This would prevent negative economic impacts from spreading from one fleet to the other. There are no alternatives that would generate higher economic benefits for the participants of the scallop fishery. Under the No Action alternative, there is a risk of overfishing the resource due to the scientific and management uncertainty that is not adequately addressed currently. Existing measures do not have well-defined accountability and payback mechanismsif catch limits are exceeded due to these sources of uncertainty, which could result in continual reductions in allocations, effort levels, and trips.

LA AMs would consist of the use of an ACT, and an overall DAS reduction to account for any overages. The deduction would be applied in the second FY following the FY in which the overage occurred (e.g.,an overage in FY 2011 would result in a DAS reduction in FY 2013). The overall economic impacts in the short-term on the participants of the scallop fishery depend on whether or not the ACT prevents an ACL overage. Exceeding the ACL in one year will have positive economic impacts on the participants of the scallop fishery in that year, but it would be followed by negative impacts in the year in which the AM is applied, since DAS would be deducted based on the level of the overage. The short-term impacts averaged over the applicable years would be neutral or small. The proposed action also includes a disclaimer for when the LA AM would not be triggered, even if the LA sub-ACL exceeded. If there is no biological harm, and updated estimates of F are actually lower than what was projected, there will be no reason for a DAS reduction in the subsequent year. This would minimize or even eliminate any potentially negative impacts, since the AM would not be implemented.

For the LAGC fishery, if an individual vessel exceeds its IFQ (including leased IFQ), the amount of IFQ equal to the overage would be deducted from the vessel's IFQ in the FY following the FY in which the overage occurred. Similarly, this action proposes that if the NGOM component of the fishery exceeds the overall hard-TAC (equal to the NGOM ACL) after all data is final, then the hard TAC could be reduced by the amount equal to the overage in the following FY. Exceeding the vessel's IFQ in one year will have positive economic impacts in that year, followed by negative impacts in the year in which the deduction is applied, so the short-term impacts averaged over these 2 years would be neutral or small. The measures would help reduce the risks of exceeding ACLs and would have positive impacts on the scallop yields and economic impacts from the fishery as a whole over the long-term.

The Council also considered making the AMs effective in the second year following FY in which the overage occurred. This would have very similar economic impacts to the proposed application of AMs, except that the negative impacts would be delayed for 1 year.

If the LA AM disclaimer is triggered, 5.5 percent of the difference between the exceeded LA sub-ACL and the actual LA landings will be allocated to the LAGC fleet the following FY. This measure would have positive economic impacts on the LAGC vessels and prevent the LA fishery from receiving a higher share of the total catch than allocated to them by Amendment 15 provisions. The no action alternative would generate negative economic impacts compared to the proposed action, because it would not provide the LAGC fleet with similar additional catch.

The proposed AM for the YTF sub-ACL, if the scallop fishery exceeds the sub-ACL, is a seasonal closure of areas that have been pre-identified to have high YTF bycatch rates. The applicable area would be closed in the subsequent FY for a specified period of time to only LA scallop vessels (LAGC vessels would be exempt from the closure). This measure could increase fishing costs and have negative impacts on the scallop revenues and profits if the effort is moved to less productive areas with lower LPUE, or to areas with a predominance of smaller scallops with a lower price. Implementation of the closure in the subsequent year, rather than in-season, would prevent derby style fishing and minimize the negative impacts on prices and revenues associated with it. Exempting LAGC trips from this AM would prevent high distributional impacts for LAGC vessels that have a dependence on fishing within the proposed closure areas in SNE waters.

The alternative that would close an entire YTF stock area would have greater negative impacts on scallop revenues and profits compared to options that would close only specific portions of areas with high YTF bycatch. Higher negative impacts result from a very large portion of the scallop fishery being closed compared to discrete areas under the proposed alternative. Economic benefits from minimizing YTF bycatch in the year following an overage under the stock wide area closure alternatives would accrue over the long term if YTF stocks improve and the likelihood of scallop fishery closures is reduced. However, the proposed measure provides nearly the same bycatch reduction for YTF because the areas are where the highest YTF bycatch occurs in the scallop fishery. The immediate economic benefits of the proposed measure therefore outweighs the long term potential benefits associated with the stock wide closure. The alternatives that would institute either a fleet maximum DAS or an individual maximum number of DAS that can be used in a stock area for year 3 to account for an overage of the YTF sub-ACL in year 1 could reduce the negative impacts on scallop revenues, costs, and total economic benefits by preventing derby fishing and allowing more time for the scallop fleet to make adjustments for exceeding the YTF ACLs. However, it would apply penalties to the whole fleet for overages that may have been caused by only a part of the fleet. In addition, these options could increase the administration costs by making it necessary to monitor DAS-used by YTF stock areas, which would require additional reporting and recordkeeping requirements.

The adoption of the hybrid OFD could result in a reduction in revenues and profits compared to no action alternative in the short to medium term. During the first 10 years of implementation, average scallop revenue per vessel net of trips costs are expected to decline by about 5.8 percent. This alternative is expected have positive economic impacts over the long-term, however, since this definition will provide more flexibility to meet the area rotation objectives and is expected to increase catch by 10 percent with larger average scallop size. In addition, this alternative could potentially reduce area swept, thus would reduce adverse effects on bycatch, seabed habitats, and EFH, with indirect positive impacts on the scallop fishery. For example, a reduction in bycatch would prevent triggering YTF AM measures, and the negative impacts on scallop landings and revenues associated with such a measure. This could offset some of the short-term potentially negative economic impacts from the hybrid OFD.

The status quo OFD is estimated to result in higher revenues and profits in the short-term compared to the hybrid overfishing definition. This alternative was not selected by the Council because it is not consistent with the spatial management of the scallop fishery, has higher risks for the scallop resource, and lower economic benefits for the scallop fishery over the long-term compared to the proposed measure.

The proposed carryover provision would allow LAGC IFQ vessels to carry up to 15 percent of a vessel's IFQ, including leased IFQ, to the following FY, if the vessel has unused IFQ at the end of the FY. This would provide flexibility and safety-at-sea benefits in the case of unforeseen circumstances or bad weather that prevents the vessel from using all of its IFQ. As a result, this would give opportunity to vessels to land their unused quote in the next year with positive economic impacts for vessels, the LAGC fishery, and overall scallop revenue and profits.

The no action alternative would have smaller economic benefits compared to the proposed option because it would not allow IFQ to be carried over into the subsequent FY. The Council also considered allowing a vessel's entire IFQ to be carried over, which would have provided higher immediate economic benefits than the proposed option. However, transferring a larger portion or the entire amount of the unused quota could increase management uncertainty, which could result in application of an ACT, set below the ACL, to serve as a buffer to protect against the uncertainty. This overall reduction for the following FY would have negative impacts on the quota allocations and economic benefits in future years.

An increase in the general category possession limit from 400 lb (181.4 kg) to 600 lb (272.2 kg) is expected to reduce the fishing time and trip costs, because it would increase trip efficiency and reduce steaming time over the course of the FY. In addition, it could increase profits for these vessels or offset the cost of elevated fuel prices. As a result, the proposed option is expected have positive economic impacts on the scallop fishery compared to the no action alternative.

Alternatives to the proposed action included eliminating the possession limit and increasing it to 1,000 lb (454 kg) per trip. These alternatives would produce higher benefits than the proposed option by maximizing trip revenue compared to fishing costs. However, this alternative could change the nature of the LAGC fishery from a small scale fishery to a full-time operation like the LA fishery, which would run counter to the FMP's objective of preserving the small scale nature of the fishery for the LAGC fleet. It may result in consolidation that would eliminate operations with smaller IFQs or that have less total share of the IFQ fishery. This alternative was not selected because the Council continues to support the LAGC fishery as a small vessel fishery, consistent with its goals and vision for the fishery as developed under Amendment 11 to the FMP.

The proposed action to change the 2-percent maximum quota per vessel to 2.5 percent would provide more flexibility to vessels to adjust their harvest levels to changes in the scallop resource conditions. In addition, since a vessel owner could meet the 5-percent ownership cap by owning only two vessels, it would eliminate ownership costs associated with multiple vessels. The proposed increase to a 2.5-percent cap would, therefore, have positive impacts on profitability. The no action alternative for increasing the maximum IFQ per vessel would not improve flexibility and would have negative economic impacts associated with costs of vessel ownership compared to the proposed action.

The proposed measure to allow the IFQ to be split from the IFQ permit would improve flexibility and facilitate movement of quota between fishermen. It would also increase the likelihood that all IFQ will be harvested, thereby reducing management uncertainty. It would allow fishermen to combine their allocations and to benefit from an economically viable operation when the allocations of some vessels are too small to make scallop fishing profitable. The proposed measure is therefore likely to have positive impacts on revenues and profits for the participants of the IFQ fishery.

The Council rejected an alternative that would have allowed quota to be transferred between the LA/IFQ fleet and IFQ-only fleet. This alternative would have resulted in larger economic benefits for LAGC vessels because it would provide another source of IFQ. However, this option was not chosen by the Council mostly due to concerns about the difficulty of monitoring mixed quota from the two categories, since they are allocated quota from two separate pools.

Under the no action alternative, LAGC vessels that want to permanently transfer quota have to purchase LAGC permit as well as all the other permits a vessel has, which makes purchasing of LAGC IFQ very expensive. It also is a deterrent to engaging in permanent transfers, since some owners would prefer to retain the permits for other fisheries. The no action alternative, therefore, would have reduced benefits compared to the proposed action.

The proposed option would modify the EFH areas closed to scallop gear under Scallop Amendment 10 to be consistent with NE Multispecies Amendment 13, and eliminate the areas closed for EFH under Amendment 10. As a result, effort could be allocated to CAI (where the scallops are larger and yield is higher), instead of allocating more open area effort in areas with potentially lower catch rates. This is estimated to have positive impacts on the scallop resource and future yield, and to increase the scallop revenues by about $8 million (assuming a price of $7.00 per lb) per year. Fishing in more productive areas would also reduce the fishing costs. Therefore, the proposed measure is expected to have positive impacts on revenues and profits from the scallop fishery. The Council considered taking no action, but such action would have lower economic benefits than the proposed action, since it would not provide access to portions of the scallop resource that would improve yield and reduce fishing costs.

These alternatives are expected to have positive indirect economic benefits for the sea scallop fishery by improving the timing and administration of the RSA program. Having dedicated resources for funding research to survey access areas will improve the Council's ability to allocate the appropriate amount of effort to prevent overfishing and optimize yield. Exempting RSA projects (if identified in the proposal) from crew restrictions, the seasonal closure in Elephant Trunk, and the requirement to return to port if fishing in more than one area will allow more flexibility and more effective research. If, as a result of these measures, the program can be more streamlined, and worthwhile projects can occur with fewer obstacles, better and more timely research will result in indirect benefits to the scallop resource and yield and will increase economic benefits from the scallop fishery. Several alternatives were considered by the Council, but they all would have similar impacts. Therefore, the proposed measures are based on policy decisions that reflect the most efficient and effective way of implementing the RSA Program.

The proposed action includes adding a third year of specifications to the framework process in order to prevent outdated measures from getting implemented due to the delay in the implementation of the 2-year framework actions. It would serve as a “safety mechanism” to prevent against “No Action” rollovers during implementation delays. These “No Action” rollover measures complicate management of the scallop fishery, do not make sense for the industry, and may cause undesired negative effects or require further management intervention. Therefore, including third-year specifications would alleviate some of the implementation issues caused by the time lag between the FY and the time when the survey data becomes available. Since the measures that are created for year 3 will result in landings more consistent with the updated scallop biomass estimates and PDT recommendations, this action is expected to have positive indirect effects on the participants of the scallop fishery. There are no other alternatives that would result in larger economic benefits.

Expanding the list of adjustable framework items would allow the Council to more easily adjust the allocations according to the resource conditions and as needed in terms of research priorities or to make further changes to benefit EFH. As a result, these measures are expected to have positive impacts on the scallop fishery and its participants. There are no other alternatives that would result in larger economic benefits.

For the reasons set out in the preamble, 50 CFR part 648 is proposed to be amended as follows: