The Agricultural Marketing Service published a document in the Federal Register on April 19, 2006 (71 FR 20288) amending regulations pertaining to Voluntary Grading of Shell Eggs. In that document, FR Doc. 06-3693, the number appearing in the Estimated value, Total value column should read 899,100, not 899,10. Therefore, in the Federal Register dated April 19, 2006, (71 FR 20288), in Table 1, under the heading Estimated value, in the Total value column “899,10” is corrected to read “899,100”.

The FAA has determined that notice and opportunity for prior public comment are impracticable, because these procedures would significantly delay certification of the airplane and thus delivery of the affected aircraft. In addition, the substance of these special conditions has been subject to the public comment process in several prior instances with no substantive comments received. The FAA, therefore, finds that good cause exists for making these special conditions effective upon issuance; however, we invite interested people to take part in this rulemaking by sending written comments, data, or views. The most helpful comments reference a specific portion of the special conditions, explain the reason for any recommended change, and include supporting data. We ask that you send us two copies of written comments.

We will file in the docket all comments we receive as well as a report summarizing each substantive public contact with FAA personnel concerning these special conditions. You may inspect the docket before and after the comment closing date. If you wish to review the docket in person, go to the address in the ADDRESSES section of this preamble between 7:30 a.m., and 4:00 p.m., Monday through Friday, except Federal holidays.

We will consider all comments we receive on or before the closing date for comments. We will consider comments filed late if it is possible to do so without incurring expense or delay. We may change these special conditions, based on the comments we receive.

If you want the FAA to acknowledge receipt of your comments on these special conditions, include with your comments a pre-addressed, stamped postcard on which the docket number appears. We will stamp the date on the postcard and mail it back to you.

On May 17, 2005, Flight Test Associates of Mojave, California, applied to the FAA, Los Angeles Aircraft Certification Office, for a supplemental type certificate (STC) to modify Sabreliner Model NA-265-60 airplanes. This model, currently approved under Type Certificate No. A2WE, is powered by two Pratt and Whitney Turbo Wasp JT12A-8 engines and carries up to ten passengers. The modification incorporates installation of dual Honeywell Model AM-250 digital altimeters that perform critical functions. These digital altimeters have the potential to be vulnerable to high-intensity radiated fields external to the airplanes.

Under 14 CFR 21.101, Flight Test Associates must show that the Sabreliner Model NA-265-60 airplanes, as modified, continue to meet the applicable provisions of the regulations incorporated by reference in Type Certificate No. A2WE, or the applicable regulations in effect on the date of application for the change. The regulations incorporated by reference in the type certificate are commonly referred to as the “original type certification basis.” The regulations incorporated by reference in Type Certificate No. A2WE include Civil Air Regulations 4b, as amended by Amendments 4b-1 through 4b-9.

If the Administrator finds that the applicable airworthiness regulations do not contain adequate or appropriate safety standards for the modified Sabreliner Model NA-265-60 airplanes because of a novel or unusual design feature, special conditions are prescribed under the provisions of § 21.16.

In addition to the applicable airworthiness regulations and special conditions, the Sabreliner Model NA265-60 airplanes must comply with the fuel vent and exhaust emission requirements of 14 CFR part 34 and the noise certification requirements of 14 CFR part 36.

Special conditions, as defined in 14 CFR 11.19, are issued under § 11.38 and become part of the type certification basis under § 21.101.

Special conditions are initially applicable to the model for which they are issued. Should Flight Test Associates apply at a later date for an STC to modify any other model included on Type Certificate No. A2WE to incorporate the same or similar novel or unusual design feature, these special conditions would also apply to the other model under § 21.101.

As noted earlier, the Sabreliner Model NA-265-60 airplanes modified by Flight Test Associates will incorporate dual primary altimeters that perform critical functions. These systems may be vulnerable to HIRF external to the airplane. The current airworthiness standards do not contain adequate or appropriate safety standards for the protection of this equipment from the adverse effects of HIRF. Accordingly, this system is considered to be a novel or unusual design feature.

There is no specific regulation that addresses protection for electrical and electronic systems from HIRF. Increased power levels from ground-based radio transmitters and the growing use of sensitive avionics/electronics and electrical systems to command and control airplanes have made it necessary to provide adequate protection.

To ensure that a level of safety is achieved equivalent to that intended by the regulations incorporated by reference, special conditions are needed for the Sabreliner Model NA-265-60 airplanes modified by Flight Test Associates. These special conditions require that new primary altimeters that perform critical functions be designed and installed to preclude component damage and interruption of function due to both the direct and indirect effects of HIRF.

With the trend toward increased power levels from ground-based transmitters and the advent of space and satellite communications coupled with electronic command and control of the airplane, the immunity of critical digital avionics/electronics and electrical systems to HIRF must be established.

It is not possible to precisely define the HIRF to which the airplane will be exposed in service. There is also uncertainty concerning the effectiveness of airframe shielding for HIRF. Furthermore, coupling of electromagnetic energy to cockpit-installed equipment through the cockpit window apertures is undefined. Based on surveys and analysis of existing HIRF emitters, an adequate level of protection exists when compliance with the HIRF protection special condition is shown with either paragraph 1 or 2 below:

1. A minimum threat of 100 volts rms (root-mean-square) per meter electric field strength from 10 KHz to 18 GHz.

a. The threat must be applied to the system elements and their associated wiring harnesses without the benefit of airframe shielding.

b. Demonstration of this level of protection is established through system tests and analysis.

2. A threat external to the airframe of the field strengths indicated in the following table for the frequency ranges indicated. Both peak and average field strength components from the table are to be demonstrated.

The threat levels identified above are the result of an FAA review of existing studies on the subject of HIRF, in light of the ongoing work of the Electromagnetic Effects Harmonization Working Group of the Aviation Rulemaking Advisory Committee.

As discussed above, these special conditions are applicable to Sabreliner Model NA-265-60 airplanes modified by Flight Test Associates. Should Flight Test Associates apply at a later date for an STC to modify any other model included on Type Certificate No. A2WE to incorporate the same or similar novel or unusual design feature, these special conditions would apply to that model as well as under § 21.101.

This action affects only certain novel or unusual design features on the Sabreliner Model NA-265-60 airplanes. It is not a rule of general applicability and affects only the applicant which applied to the FAA for approval of these features on the airplane.

The substance of the special conditions for these airplanes has undergone the notice and comment procedure in several prior instances and has been derived without substantive change from those previously issued. Because a delay would significantly affect the certification of the airplane, which is imminent, the FAA has determined that prior public notice and comment are unnecessary and impracticable, and good cause exists for adopting these special conditions upon issuance. The FAA is requesting comments to allow interested persons to submit views that may not have been submitted in response to the prior opportunities for comment described above.

The authority citation for these special conditions is as follows:

Accordingly, pursuant to the authority delegated to me by the Administrator, the following special conditions are issued as part of the supplemental type certification basis for the Sabreliner Model NA-265-60 airplanes modified by Flight Test Associates.

1. Protection from Unwanted Effects of High-Intensity Radiated Fields (HIRF). Each electrical and electronic system that performs critical functions must be designed and installed to ensure that the operation and operational capability of these systems to perform critical functions are not adversely affected when the airplane is exposed to high-intensity radiated fields.

2. For the purpose of these special conditions, the following definition applies:

Critical Functions: Functions whose failure would contribute to or cause a failure condition that would prevent the continued safe flight and landing of the airplane.

You may examine the airworthiness directive (AD) docket on the Internet at http://dms.dot.gov or in person at the Docket Management Facility office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The Docket Management Facility office (telephone (800) 647-5227) is located on the plaza level of the Nassif Building at the street address stated in the ADDRESSES section.

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to include an AD that would apply to certain Airbus Model A300-600, A310-200, and A310-300 series airplanes. That NPRM was published in the Federal Register on October 20, 2005 (70 FR 61078). That NPRM proposed to require modifying the forward outflow valve of the pressure regulation subsystem.

We provided the public the opportunity to participate in the development of this AD. We have considered the comments received.

Airline Pilots Association International concurs with the intent and proposed language of the NPRM. The National Transportation Safety Board supports the proposed rulemaking.

Airbus asks that we change the NPRM to refer to Airbus Service Bulletins A300-53-6149 (for Model A300-600 series airplanes) and A310-53-2121 (for Model A310-200 and A310-300 series airplanes), both Revision 01, both dated September 12, 2005, as additional sources of service information for accomplishing the modification. The NPRM refers to the original issue of the service bulletins as the acceptable sources of service information for accomplishing the proposed modification.

We agree with the request. The procedures in Revision 01 of the referenced service bulletins are essentially the same as those in the original issue of the service bulletins. Accordingly, we have revised paragraph (f) of this AD to refer to Revision 01 of the service bulletins as the appropriate source of service information for accomplishing the required modification. We have also added a statement to paragraph (f) that gives credit for modifications accomplished before the effective date of this AD per the original issue of the service bulletins.

United Parcel Service (UPS) and American Airlines (AAL) ask that the compliance time for the modification specified in the NPRM be extended.

UPS states that considering the safety improvement provided by AD 2004-14-08, amendment 39-13717 (69 FR 41925, July 13, 2004), referenced in the NPRM in the “Other Relevant Rulemaking” section, the compliance time should be changed from 22 months to the next C-check maintenance visit or 30 months, whichever occurs later. UPS notes that this would allow the subject modification to be done during normal heavy maintenance.

AAL states that compliance periods are based upon, among other factors, an analysis of the purported risk and an assessment of mitigating factors that may alter the scope of risk. AAL adds that it is the largest U.S. operator of the passenger version of the A300-600 airplanes (34 airplanes), and notes that other significant U.S. operators are freight operators which carry only crew on their airplanes. All AAL airplanes were modified soon after identification of the unsafe condition; therefore, a significant portion of the risk was eliminated. AAL states that this mitigating action was not included in the analysis, and if included, the compliance time could be extended and would still achieve an equivalent level of airplane safety. AAL asks that the compliance time be extended to 36 months.

We agree that the compliance time may be extended; we have reconsidered the urgency of the unsafe condition and the amount of work related to the required modification. Our reconsideration includes the data provided by AAL which show that it has accomplished the required modification on all its passenger airplanes, and that other affected airplanes are freight carriers, which operate at a lower risk level than passenger airplanes. We find that extending the compliance time from 22 to 36 months will not adversely affect safety, and, for the majority of affected operators, will allow the required modification to be performed during regularly scheduled maintenance at a base where special equipment and trained maintenance personnel will be available if necessary. We have changed the compliance time for accomplishing the modification required by paragraph (f) of this AD accordingly.

Airbus asks that the applicability in the NPRM be changed for Model A310 series airplanes to match the effectivity of French airworthiness directive F-2005-061 R1, dated May 25, 2005. The French airworthiness directive includes airplanes on which Airbus Modification 3881 has been embodied in production or Airbus Service Bulletin A310-21-2012 has been embodied in service. The commenter states that this clarification in the scope of the applicability would be useful for operators of Model A310-200 and -300 series airplanes.

We agree that the applicability in this AD should be changed to match the effectivity in the French airworthiness directive for Airbus Model A310-200 and -300 series airplanes. Therefore, we have changed paragraph (c) of this AD, for clarification, to specify that the AD applies to Airbus Model A310-200 and -300 series airplanes on which Airbus Modification 3881 has been done in production or Airbus Service Bulletin A310-21-2012 has been done in service.

AAL states that although the NPRM does not indicate compliance is required with a specific revision level of the service bulletin, subsequent revisions of the service bulletin that meet the intent of the NPRM should be included.

We do not agree with the request. Approving revisions of service bulletins that have not yet been released would violate the Office of the Federal Register's (OFR) regulations for approving materials that are incorporated by reference. In general terms, we are required by these OFR regulations either to publish the service document contents as part of the actual AD language, or to submit the service document to the OFR for approval as “referenced” material, in which case we may only refer to such material in the text of an AD. The AD may refer to the service document only if the OFR has approved it for “incorporation by reference.” To allow operators to use later revisions of a referenced document, we must either revise the AD to reference the specific later revisions, or operators may request approval to use later revisions as an alternative method of compliance (AMOC) with this AD. Operators may request approval of an AMOC for this AD under the provisions of paragraph (g)(1) of this AD. We have made no change to the AD in this regard.

AAL asks that the alternative modification (installation of a larger outflow valve inlet screen) made to its fleet be included as one of the available compliance options in the final rule. AAL states that it took the initiative to redesign the outflow valve inlet screen on both the forward and aft outflow valves. AAL notes that the original screen can be completely covered with the single, standard-size 22-inch-wide insulation blanket commonly found in close proximity to the valve. A cylindrical inlet screen was added between the original inlet screen and the outflow valve; the new design adds over 250 percent to the surface area and adds a critical third dimension to the screen shape. The increase in surface area ensures that if an insulation blanket were to become entangled in the outflow valve screen, the screen would be large enough to maintain adequate flow to prevent the buildup of cabin pressure.

We do not agree with the request; the alternative modification is unique to AAL and therefore should not be included in the final rule. An AMOC is the appropriate avenue for approval of that method of compliance. In light of the above, we consider the requirements in this AD applicable to AAL airplanes until AAL obtains approval for an AMOC for this AD under the provisions of paragraph (g)(1) of this AD. No change to the AD is necessary in this regard.

AAL asks that the work hours specified to accomplish the modification be increased, and adds that the referenced service information shows the work hours necessary as 5.5 for each airplane, using two kits, but the NPRM estimates only 3 to 4 work hours per airplane.

We do not agree to increase the work hours. The estimate of 5.5 work hours specified in the service information includes time for gaining access and closing up. The cost analysis in AD rulemaking actions, however, typically does not include costs such as the time required to gain access and close up, time necessary for planning, or time necessitated by other administrative actions. Those incidental costs may vary significantly among operators and are almost impossible to calculate. We recognize that, in doing the actions required by an AD, operators may incur incidental costs in addition to the direct costs. However, the estimate of 3 to 4 work hours, as specified in this AD, represents the time necessary to perform only the actions actually required by this AD. We have made no change to the AD in this regard.

AAL and UPS note that the service bulletin reference identified in the NPRM for Airbus Model A300-600 series airplanes is incorrect. The NPRM referenced Airbus Service Bulletin A300-63-6149, but the correct reference is Airbus Service Bulletin A300-53-6149; the service bulletin reference has been corrected throughout this AD.

We have carefully reviewed the available data, including the comments received, and determined that air safety and the public interest require adopting the AD with the changes described previously. These changes will neither increase the economic burden on any operator nor increase the scope of the AD.

This AD affects about 169 airplanes of U.S. registry. The modification takes between 3 and 4 work hours per airplane, depending on airplane configuration, at an average labor rate of $65 per work hour. Required parts cost ranges between $120 and $420 per kit (2 kits per airplane). Based on these figures, the estimated cost of the modification required by this AD for U.S. operators ranges between $73,515 and $185,900 or between $435 and $1,100 per airplane.

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

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

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

For the reasons discussed above, I certify that this AD:

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

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

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

We prepared a regulatory evaluation of the estimated costs to comply with this AD and placed it in the AD docket. See the ADDRESSES section for a location to examine the regulatory evaluation.

On January 30, 2006, the FAA published in the Federal Register a notice of proposed rulemaking to modify R-3002A, B, C, D, E, and F; and establish R-3002G at Fort Benning, Georgia (71 FR 4836). Interested parties were invited to participate in this rulemaking effort by submitting comments on this proposal to the FAA. No comments were received in response to the notice.

Restricted areas in 14 CFR part 73 are published in subpart B of FAA Order 7400.8M, dated January 6, 2006 and effective February 16, 2006. The restricted areas listed in this document will be published subsequently in the Order.

This action amends Title 14 Code of Federal Regulations 14 CFR part 73 by adjusting the boundaries of Restricted Areas R-3002A, B, C, D, E, and F, Fort Benning, GA; and redesignates a section of existing restricted airspace as a separate area titled R-3002G. The boundary amendments revoke existing restricted airspace over land ceded to the City of Columbus, GA, in the northwest section of the range, and establish new restricted airspace to the south of existing Restricted Areas R-3002A, B, and C, over land ceded by the City to Fort Benning. This action also realigns the internal dividing lines between restricted areas to permit better scheduling and utilization of the complex. The FAA is also changing the name of the controlling agency from “FAA, ATC Tower, Columbus, GA,” to “FAA, Atlanta TRACON,” and the name of the using agency from “Commanding Officer, Fort Benning, GA,” to “U.S. Army, Commanding General, Infantry Center and Fort Benning, GA.” These name changes reflect the current titles of the responsible agencies.

These changes will facilitate the release of restricted airspace that is not needed for military operations, and will enhance the efficient use of the navigable airspace.

This regulation is limited to an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. Therefore, this regulation: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under Department of Transportation (DOT) Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

The Department of the Army, Fort Benning, Georgia (GA) conducted an environmental assessment (EA) on a landfill exchange, and an environmental impact statement (EIS) on a land exchange with the City of Columbus, GA. The landfill exchange related to an area located north of Fort Benning and the land exchange related to an area south. The EA resulted in a Finding of No Significant Impact (FONSI) and the parties implemented the action in 1997. The EIS resulted in a Record of Decision (ROD) and the parties implemented the action in 2000. Both of these exchanges require minor modifications to Restricted Area 3002 (R-3002). The U.S. Army submitted the proposal for modification of R-3002, identified as the Land Exchange Airspace Redesignation.

In January 2004, the U.S. Army conducted a review of the EA/FONSI for the landfill and the EIS/ROD for the land exchange and determined that the contents remained substantially valid and do not warrant preparation of a new EA or EIS, nor a supplement or amendment to the FONSI or ROD. They conducted the review in accordance with the then current applicable U.S. Army directives and FAA Order 1050.1D, “Policies and Procedures for Considering Environmental Impacts.”

The FAA reviewed the proponent's environmental documentation and determined that there is no reasonable expectation for this airspace action to cause any potentially significant environmental impacts and that it will not trigger any extraordinary circumstances, which would warrant preparation of additional environmental documentation. The FAA, therefore, has determined that this action qualifies for categorical exclusion from further environmental analysis under the National Environmental Policy Act in accordance with FAA Order 1050.1E, “Environmental Impacts: Policies and Procedures,” paragraphs 303d, 307c, and 311c.

This amendment to Title 14 of the Code of Federal Regulations, Part 97 (14 CFR part 97), establishes, amends, suspends, or revokes SIAPs and/or Weather Takeoff Minimums. The complete regulatory description of each SIAP and/or Weather Takeoff Minimums is contained in official FAA form documents which are incorporated by reference in this amendment under 5 U.S.C. 552(a), 1 CFR part 51, and 14 CFR part 97.20. The applicable FAA Forms are identified as FAA Forms 8260-3, 8260-4, 8260-5 and 8260-15A. Materials incorporated by reference are available for examination or purchase as stated above.

The large number of SIAPs and/or Weather Takeoff Minimums, their complex nature, and the need for a special format make their verbatim publication in the Federal Register expensive and impractical. Further, airmen do not use the regulatory text of the SIAPs and/or Weather Takeoff Minimums but refer to their depiction on charts printed by publishers of aeronautical materials. Thus, the advantages of incorporation by reference are realized and publication of the complete description of each SIAP and/or Weather Takeoff Minimums contained in FAA form documents is unnecessary. The provisions of this amendment state the affected CFR sections, with the types and effective dates of the SIAPs and/or Weather Takeoff Minimums. This amendment also identifies the airport, its location, the procedure identification and the amendment number.

This amendment to 14 CFR part 97 is effective upon publication of each separate SIAP and/or Weather Takeoff Minimums as contained in the transmittal. Some SIAP and/or Weather Takeoff Minimums amendments may have been previously issued by the FAA in a Flight Data Center (FDC) Notice to Airmen (NOTAM) as an emergency action of immediate flight safety relating directly to published aeronautical charts. The circumstances which created the need for some SIAP, and/or Weather Takeoff Minimums amendments may require making them effective in less than 30 days. For the remaining SIAPs and/or Weather Takeoff Minimums, an effective date at least 30 days after publication is provided.

Further, the SIAPs and/or Weather Takeoff Minimums contained in this amendment are based on the criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these SIAPs and/or Weather Takeoff Minimums, the TERPS criteria were applied to the conditions existing or anticipated at the affected airports. Because of the close and immediate relationship between these SIAPs and/or Weather Takeoff Minimums and safety in air commerce, I find that notice and public procedure before adopting these SIAPs and/or Weather Takeoff Minimums are impracticable and contrary to the public interest and, where applicable, that good cause exists for making some SIAPs and/or Weather Takeoff Minimums effective in less than 30 days.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore—(1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

1. The Federal Energy Regulatory Commission (Commission) is amending its regulations under the Federal Power Act (FPA) 1 to incorporate by reference certain standards promulgated by the Wholesale Electric Quadrant (WEQ) of the North American Energy Standards Board (NAESB). These standards establish a set of business practice standards and communication protocols for the electric industry that will enable industry members to achieve efficiencies by streamlining utility business and transactional processes and communication procedures. The standards replace, with modifications, the Commission's existing Business Practice Standards for Open Access Same-Time Information Systems (OASIS) Transactions and OASIS Standards and Communication Protocols and Data Dictionary requirements. In addition, the standards include business practices to complement the North American Electric Reliability Council's (NERC) Version 0 reliability standards and ultimately the standards to be adopted by the Electric Reliability Organization (ERO) pursuant to Order Nos. 672 and 672-A. 2 Adopting these standards will establish a formal ongoing process for reviewing and upgrading the Commission's OASIS standards as well as adopting other electric industry business practice standards.

2. When the Commission developed its OASIS regulations, OASIS Standards and Communication Protocols, Data Dictionary, and OASIS Business Practice Standards, it relied heavily on the assistance provided by all segments of the wholesale electric power industry and its customers in the ad hoc working groups that came together and offered consensus proposals for the Commission's consideration. 3 While this process was very successful, it became apparent to the Commission that ongoing issues remained that would be better addressed by an ongoing industry group dedicated to drafting consensus industry standards to implement the Commission's OASIS-related policies as well as to complement policies on other industry business practices.

3. On December 19, 2001, the Commission issued an order asking the wholesale electric power industry to develop business practice standards and communication protocols by establishing a single consensus, industry-wide standards organization for the wholesale electric industry. 4

4. Subsequently, in 2002, the Gas Industry Standards Board stepped forward and volunteered to play this role by modifying its organization to broaden the scope of its activities to address electric power standards. The result of this reorganization has been the emergence of NAESB's WEQ, a non-profit, industry-driven organization working to reach consensus on standards to streamline the business practices and transactional processes within the wholesale electric industry and proposing and adopting voluntary communication standards and model business practices.

5. The WEQ's procedures ensure that all industry members can have input into the development of a business practice standard, whether or not they are members of NAESB, and each standard it adopts is supported by a consensus of the five industry segments: transmission, generation, marketer/brokers, distribution/load serving entities, and end users. 5

6. The Commission also urged the industry to expeditiously establish the procedures for ensuring coordination between NERC and NAESB, and requested NAESB and others to file an update on the progress on coordination between it and NERC 90 days after the formation of the WEQ. 6 In response to the Commission's request, NAESB and NERC filed a joint letter, on December 16, 2002, explaining that they had signed a memorandum of understanding (MOU) “designed to ensure that the development of wholesale electric business practices and reliability standards are harmonized and that every practicable effort is made to eliminate overlap and duplication of efforts between the two organizations.” The MOU describes, among other coordination procedures, the establishment of a Joint Interface Committee (JIC) that will review all standards development proposals received by either organization and determine which organization should be assigned to draft the relevant standards.

7. On January 18, 2005, NAESB submitted a status report to the Commission detailing the WEQ's activities over the two years since the group's inception, and informed the Commission that it had adopted its first set of business practice and communication standards for the electric industry (Version 000). NAESB stated that these standards, in addition to adopting the Commission's existing OASIS standards, included improvements and revisions to: (1) Facilitate the redirection of transmission service; (2) address multiple submissions of identical transmission requests/queuing issues; (3) address OASIS posting requirements under Order No. 2003 (the Large Generator Interconnection rule);  7 and (4) provide non-substantive editing to improve the formatting, organization, and clarity of the text.

8. In its report, NAESB also informed the Commission that the WEQ adopted four business practice standards to complement NERC's Version 0 reliability standards. 8 NAESB stated that these business practice standards were developed as part of a joint effort with NERC in which the JIC divided the existing NERC operating policies into reliability standards for development by NERC and business practices standards for development by NAESB.

9. Further, NAESB stated that the WEQ had adopted business practice standards for Standards of Conduct to implement the Commission's requirements in Order Nos. 2004, 2004-A, and 2004-B. 9

10. In response to NAESB's report, on May 9, 2005, the Commission issued a Notice of Proposed Rulemaking (Standards NOPR)  10 that proposed to incorporate by reference the following Version 000 standards developed by the WEQ: (1) Business Practices for Open Access Same-Time Information Systems (OASIS), with the exception of standards that duplicate the Commission's regulations; (2) Business Practices for Open Access Same-Time Information Systems (OASIS) Standards & Communication Protocols; and (3) an OASIS Data Dictionary. The Commission also proposed to incorporate by reference the WEQ's business practice standards on Coordinate Interchange, Area Control Error (ACE) Equation Special Cases, Manual Time Error Correction, and Inadvertent Interchange Payback. The Commission did not propose to incorporate by reference Standard 001-9.7 concerning redirects of transmission service, 11 because the standard was unclear and could be interpreted to conflict with provisions of the pro forma open access transmission tariff (OATT). 12 The Commission also did not propose to incorporate by reference the WEQ's Standards of Conduct for Electric Transmission Providers (WEQ-009) because they duplicate the Commission's regulations on this subject.

11. Twenty-three comments were filed in response to the Standards NOPR. 13 These comments raise a number of issues concerning the relationship of the standards to reliability standards, the substance of specific standards, and the availability and process for obtaining regional variances and waivers of the standards.

12. The Commission is pleased that the WEQ has begun the process of developing business practice and communication standards for the electric industry. Standardization of business practices and communication processes will benefit the electric industry by providing for uniform methods of doing business with different transmission providers. Many participants in electric markets conduct business transactions involving a number of different transmission providers and establishing a uniform set of procedures and communication protocols will help make such transactions more efficient. Moreover, having the industry consider business practice standards through a consensus process may result in the industry devising ways to improve and make business practices more efficient.

13. The Version 000 standards adopted by the WEQ establish the baseline upon which future wholesale electric business practice standards can be built. The WEQ has, for example, adopted the existing Commission OASIS standards, but significantly has modified these standards to provide customers with greater flexibility.

14. The WEQ also adopted business practice standards that complement NERC's Version 0 reliability standards. The development of such standards will be of increasing importance in the future as the Commission approves reliability standards under the recently enacted Energy Policy Act of 2005 (EPAct 2005). 14 Business practice and reliability standards must complement each other to support an efficient grid. Companies need to have means of conducting business that ensure compliance with the reliability standards. We, therefore, are pleased NERC and NAESB have developed operating protocols that synchronize their standards development to provide for efficient and coordinated implementation of their respective standards.

15. In addition, since the electric industry relies heavily on natural gas as a fuel source, it is becoming increasingly important for the business practices and communication protocols of these industries to work together efficiently. Because NAESB develops business practice and communication standards for the wholesale and retail natural gas and electric industries, NAESB standards will enable participants in these industries to better coordinate their activities and improve their communications. 15

16. Nonetheless, while standardization of business practice and communication standards will promote efficient transactions, we recognize that different regions may conduct business differently and regional variations may be needed. The WEQ standards we adopt in this order include standards recognizing such regional differences. Similarly, transmission providers use different business models. For example, independent system operators (ISOs), regional transmission organizations (RTOs), and traditional vertically integrated public utilities conduct business in very different ways, and the WEQ standards will need to recognize such differences.

17. A number of parties have raised issues with respect to the applicability of certain WEQ standards to specific circumstances. In the future, we would encourage all industry participants to raise such issues during the standard development process so that all industry segments can determine whether a particular standard should recognize such differences. This process may resolve requests before they reach the Commission. Even if the request is not satisfactorily resolved by the WEQ, the process will help create a record should the requester seek a variance or waiver when the standard is presented to the Commission.

18. We recognize that with respect to the standards being incorporated in this Final Rule, parties cannot seek review of their issues at the WEQ prior to implementation. Rather than seek to resolve these specific issues in a generic proceeding, we are establishing a process for those parties to file requests for waiver with respect to particular standards prior to implementation of this Final Rule.

19. The specific standards developed by the WEQ that we are incorporating by reference in this Final Rule are as follows:

20. The Commission will also require public utilities to modify their OATTs to include the WEQ standards that we are incorporating by reference, the next time they make any unrelated filing to revise their OATTs. We also clarify that, to the extent that a public utility's OASIS obligations are administered by an ISO or RTO and are not covered in its OATT, the public utility will not need to modify its OATT to meet these particular requirements.

21. We will address below the issues raised in the comments on the standards.

22. As explained above, when NAESB's WEQ was formed, NERC and NAESB signed an MOU that set up the JIC. 16 The MOU was subsequently amended to include participation by the ISO/RTO Council. 17 Among other duties, the JIC determines whether a proposed standard is a reliability standard to be developed by NERC or is a business practice standard to be developed by NAESB.

23. The JIC unanimously approved the drafting committee's determination that certain standards be developed as business practice standards by NAESB. Among them were: Coordinate Interchange; ACE Equation Special Cases; Manual Time Error Correction; and Inadvertent Interchange Payback. 18 These standards previously had been part of NERC's policy statements, which included both reliability and commercial components. The translation of the reliability and commercial components of the existing NERC policy statements into standards resulted in the NERC Version 0 reliability standards dealing with the reliability component and the complementary WEQ Version 000 business practice standards dealing with the commercial component. Any changes that were required to bring the standards up to date were to be made in subsequent Version 1 standards. 19

24. NERC and other commenters 20 supporting NERC's position, requested that the Commission defer action on three of the WEQ standards designed to complement NERC's Version 0 reliability standards, so that these standards could be developed as reliability standards by NERC. 21 Other commenters expressed confidence that NERC and NAESB could resolve any differences. 22

25. Subsequently, NERC and NAESB have resolved this issue. In comments filed on February 21, 2006, by NERC and on February 17, 2006 by NAESB, they report that NERC is withdrawing its request to the Commission to defer action on the three standards, and NERC states that the three standards complement and are consistent with the existing NERC Version 0 reliability standards. 23 In addition, NERC and NAESB inform the Commission that they are in the process of finalizing new procedures for coordinating the development of standards in areas that affect both reliability and business practices. The new approach will allow reliability standards to be developed under the NERC process and business practices to be developed under the NAESB process, while the actual development work will be done by a joint team sponsored by NERC and NAESB.

26. The Commission is pleased that NERC and NAESB have reached agreement on how to deal with the three standards  24 and commends their efforts to develop an improved process for standards development. The Commission agrees that appropriate classification of standards between reliability and business practices is important, because the statutory procedures under which the Commission adopts business practice and reliability standards differ significantly. An improved process by NERC and NAESB for standards development should form a firm foundation for ensuring that standards in these two important areas are properly developed, classified, and coordinated so that the grid can run efficiently. We look forward to hearing that the parties have finalized their process.

27. The Commission incorporates by reference the four NAESB standards complementing NERC reliability standards: Coordinate Interchange, Area Control Error (ACE) Equation Special Cases, Manual Time Error Correction, and Inadvertent Interchange Payback. We address below issues raised in comments with respect to some of the standards.

28. The Inadvertent Interchange Payback standards define the methods by which energy imbalances between Balancing Authorities can be repaid. Inadvertent Interchange occurs when a Balancing Authority is not able to fully balance generation and load within its area. The standards permit Balancing Authorities to repay imbalances though bilateral in-kind payback, unilateral in-kind payback, or “other payback methods,” e.g. , through financial payments.

29. In its February 17, 2006 comments, NAESB informs the Commission that based on the report of its Inadvertent Interchange Payback Task Force (Task Force), it does not recommend any additional changes to the commercial business practices for inadvertent interchange payback at this time. The Task Force report recognized that significant effort was expended by NAESB and its member organizations to develop an Inadvertent Interchange settlement standard that would mitigate the potential financial gain that misuse of the payback-in-kind methodology might create. However, a majority of the Task Force members determined that, at this time, no consensus regarding any proposed solutions considered by the task force could gain approval. Each of the proposed solutions considered had one or more significant implementation hurdles to overcome, including but not limited to: data acquisition and integrity; pricing; credit; funding; and 100 percent participation of the affected interconnection.

30. TAPS claims that the proposed business practice continues the current practice of “return-in-kind” payment for inadvertent energy exchange between Balancing Authorities/control areas, while non-control areas remain subject to a $100/MWh charge for energy imbalance. TAPS argues that this treatment of non-control areas is discriminatory compared to the treatment of control area imbalances. 25

31. We are adopting the WEQ business practice standards (Standard WEQ-007) because they follow a long-standing industry practice for repaying imbalances between Balancing Authorities. TAPS does not claim that return-in-kind payback should not be used by Balancing Authorities/control area; it contends only that it is discriminatory to limit this approach to Balancing Authorities. TAPS has raised the same issue in the Commission's rulemaking in RM05-25-000, where the Commission has issued a notice of inquiry to consider reforms to the Order No. 888 pro forma OATT and the OATTs of public utilities. 26 We find the issue of whether non-control areas should be allowed in-kind payback, as raised by TAPS, is more appropriately considered in the rulemaking in RM05-25-000, and we will address it there.

32. We are concerned that, as reported by NAESB, the existing Inadvertent Interchange Payback standards are susceptible to abuse for financial gain, particularly if such abuse can lead Balancing Authorities to create imbalances that may jeopardize reliability. We urge NERC and NAESB to continue to work cooperatively to revise these standards to ensure that Inadvertent Interchange Payback cannot be abused and that reliability is not jeopardized by such actions. We emphasize that these standards refer only to inadvertent interchange, not to advertent actions, and that the Commission does not condone abusive actions taken by any party. The Commission retains authority under section 206 of the FPA to take actions in the event of such abuse. 27

33. The Manual Time Error Correction standards specify the procedure to be used for reducing a time error. The need for manual time error correction stems from the inability of Balancing Authorities to perfectly balance generation and load. The frequency of the Interconnection is normally scheduled to 60.00 Hz and Balancing Authorities attempt to balance generation and load in order to meet this objective. However, the balancing function is imperfect and over time the frequency will average slightly above or below 60.00 Hz resulting in mechanical electric clocks developing an error relative to true time. 28

34. Bonneville and EEI claim that the chart on the second page of the Manual Time Error Correction standards (Standard 006-5) does not reflect a NERC waiver setting the Western Electricity Coordinating Council (WECC) initiation of manual time error as plus or minus five seconds instead of two seconds. 29

35. We will accept the WEQ's Manual Time Error standard (Standard WEQ-006). As to the concerns raised by the commenters, the waiver expired on February 8, 2004. 30 If a different timing requirement is needed by the WECC, the WECC or its members may seek such a change from the WEQ and, while that change is pending, request a waiver from the Commission allowing deviations from the requirements of the chart in Standard 006-5 in appropriate circumstances.

36. The Coordinate Interchange standards define procedures for market participants to request implementation of transactions crossing one or more Balancing Authority boundaries.

37. The ISO/RTO Council states that Appendix A of the Coordinate Interchange standards (Standard 004-A), dealing with interchange transactions from the Eastern Interconnection through the Southwest Power Pool (SPP) to ERCOT, is out of date. The ISO/RTO Council states that certain provisions of SPP's tariff recently have been changed and the Coordinate Interchange standards should be revised accordingly.

38. We expect that, given the ever changing nature of the industry, the WEQ will revise its standards when appropriate. 31 In fact, the WEQ is already in the process of revising the Coordinate Interchange standards, including Appendix A. 32 We encourage the ISO/RTO Council to participate in the development of revised standards. In the meantime, we will accept the WEQ's Coordinate Interchange standards (Standard WEQ-004). The ISO/RTO Council, or its members, may request a waiver allowing deviations from the requirements of Appendix A in appropriate circumstances.

39. The ISO/RTO Council reports that the four NAESB standards define terms somewhat differently from the NERC definitions. The ISO/RTO Council would have NERC define reliability terms and NAESB use these definitions. In support of its argument, the ISO/RTO Council argues that operators should not have to understand more than one definition of the same item. 33

40. While we will accept the definitions associated with the four existing standards complementing NERC's Version 0 reliability standards so that these standards can be implemented, we agree with the ISO/RTO Council that in the future there should be a single definition of reliability terms. It is appropriate that NERC take the lead on defining these terms, as they are reliability-related, and that these same definitions be used by the WEQ in its standards. In future versions of the standards, NAESB should use the NERC definitions relating to reliability.

41. The WEQ adopted standards intended to facilitate the redirect of transmission services. In the Standards NOPR, the Commission expressed concerns, and requested comment, about Standard 001-9.7 in relation to the policies the Commission has adopted in the pro forma OATT. Standard 001-9.7 states:

42. Unless otherwise mutually agreed to by the primary provider and original customer, a request for Redirect on a Firm basis does not impact the [Transmission Customer's] long term firm renewal rights ( e.g. , rollover or evergreen rights) on the original path, nor does it confer any renewal rights on the redirected path.

43. In the Standards NOPR, the Commission expressed concern about how to interpret this standard in light of the rollover rights as defined in the pro forma OATT. The Commission requested comment on whether, if it determines that this standard is in conflict with its policies, there is an immediate need for a standard on this issue or whether the Commission can wait for the WEQ to reconsider this issue and develop alternate language.

44. NAESB states that, during the deliberations on Standard 001-9.7, there was a concern that in some instances a transmission customer may wish to retain all rollover rights under an existing service agreement yet still request service over alternate points of receipt or delivery. Because of these issues, the WEQ determined that there may be circumstances with respect to redirects on a firm basis where the parties may mutually agree as to the disposition of rollover rights. NAESB states that it will develop alternate language, if the Commission determines that this standard conflicts with its policy. 34

45. Bonneville asserts that Standard 001-9.7 can be read in harmony with the pro forma OATT and urges the Commission to adopt Standard 001-9.7 with one suggested modification. According to Bonneville, the Commission has stated that the redirect requestor retains the reservation priority rights afforded by section 2.2 of the pro forma OATT on the parent (or original) path. In the Standards NOPR, Bonneville contends, the Commission has suggested that the redirect requestor holds section 2.2 rights on both the parent path and the redirect path. Bonneville argues that, if this is allowed, a redirect requestor could encumber the future available transmission capability (ATC) of two paths for the price of one. It argues that the practical impact of requiring section 2.2 rights on both paths is that firm redirects will not be granted. Bonneville agrees with NAESB that rollover should not be given to the redirect request. However, Bonneville would create an exception when a long-term firm redirect reservation terminates when the service agreement terminates. Then Bonneville recommends moving the reservation priority from the original request path to the redirect request path and initiating a contract amendment for this type of redirect, thus allowing for contract modification on a firm basis with all the rights that flow with the service agreement. Bonneville contends that this approach will allow the redirect requestor to choose which path it values most, releasing the other path to new entrants. 35

46. Southern Companies contends that a request by a transmission customer to redirect service on a firm basis does not change that customer's rollover rights on the original path and does not confer rollover rights on the redirected path. However, Southern Companies argues that transmission providers and transmission customers should have the ability to mutually agree to change the rollover rights from the original path to the redirected path if both parties find this beneficial. Southern Companies believes that Standard 001-9.7 allows for this flexibility. 36

47. On the other hand, Cinergy shares the Commission's concern in the Standards NOPR that Standard 001-9.7 does not appear to be consistent with the pro forma OATT. Accordingly, Cinergy does not support its adoption. Cinergy contends that requests for redirect transmission service should be treated as a new transmission service request and the customer should be able to indicate whether any rollover rights are requested on the new path. If the remaining term of service on the original path with long-term firm rights is requested on the redirected path, the customer should be able to request rollover rights on the redirected path at the time of the request. If the redirected request is approved, the rollover rights on the existing path should terminate for the amount of service being redirected on a long-term firm basis. 37

48. Likewise, Exelon argues that Standard 001-9.7 not be adopted for the reasons stated in the Standards NOPR. In Exelon's view, Standard 001-9.7 would permit a customer to relinquish rollover rights, contrary to the Commission's policy that transmission customers should not be permitted to contract away rollover rights because transmission owners could unfairly induce customers to give up their rollover rights.

49. Exelon also opposes adoption of Standard 001-9.7 because it would change the present Commission policy that allows rollover rights on a redirect of transmission. Exelon interprets Standard 001-9.7 to provide that a customer who is granted transmission on a new path would have to forego rollover rights on that new path. Exelon agrees with the Commission that rollover rights should be transferred to the new path. Exelon also states that Standard 001-9.7 begs the question of what would be the effect of a “request” for redirected service. Exelon believes that acceptance and confirmation by the transmission provider are necessary to grant the right for redirected service, but Standard 001-9.7 does not make that clear. 38

50. The Midwest ISO believes that there is no immediate need to change the Commission's policy on redirect service and rollover rights and that the WEQ should be given a further opportunity to discuss with the industry any departure from the Commission's policy on rollover rights. 39

51. Standard 001-9.7 does not specify clearly the parties' responsibilities with respect to the ability of a customer requesting a firm redirect to obtain rollover rights on the redirect path. 40 Under section 22.2 of the pro forma OATT, a request for a firm redirect is like a request for new transmission service. The transmission provider, therefore, is required to offer rollover rights to a customer requesting a firm redirect if rollover rights are available on the redirect path. However, the transmission provider may not operationally be able to offer rollover rights on the requested redirect path due to reasonably forecasted native load needs for the transmission capacity.

52. Standard 001-9.7 provides that “unless otherwise mutually agreed to by the primary provider and original customer, a request for a Redirect on a Firm basis * * * [does not] confer any renewal rights on the redirect path. ” (Emphasis added). This phrase could be interpreted to mean that the parties to an agreement may mutually agree to eliminate rollover rights and that a transmission provider may agree, but is not obligated, to offer rollover rights on the redirect path even when such rights are available. These provisions are inconsistent with the pro forma OATT and the Commission's policies. In addition, the last phrase of the standard also conflicts with the last sentence of section 22.2 of the pro forma OATT, which is limited to the period while the new request for service is pending. Therefore, we will not adopt Standard 001-9.7 at this time, but will allow the WEQ to reconsider the standard and to adopt a revised standard consistent with the Commission's policies.

53. The comments on this issue show that there is confusion in the industry regarding the provisions of sections 22.1 and 22.2 of the pro forma OATT. To assist the WEQ in developing a standard that is consistent with the Commission's policy, we offer the following guidance.

54. Section 22 of the pro forma OATT addresses changes in service specifications. Section 22.1 pertains to modifications on a non-firm basis and section 22.2 covers modifications on a firm basis. Under section 22.1, a firm point-to-point transmission customer may request non-firm transmission service at secondary receipt and delivery points (points other than those specified in the service agreement). Section 22.1(c) provides that the transmission customer shall retain its right to schedule firm point-to-point transmission service at the receipt and delivery points specified in its relevant service agreement in the amount of its original capacity reservation.

55. Under section 22.2, any request by a transmission customer to modify receipt and delivery points on a firm basis is treated as a new request for service. This section also provides that, “ [w]hile such new request is pending, the Transmission Customer shall retain its priority for service at the existing firm Receipt and Delivery Points specified in its Service Agreement” (emphasis added). Once the new request is accepted and confirmed, the transmission customer loses all rights to the original receipt and delivery points, including rollover rights associated with the original path.

56. Bonneville asserts that the Commission has stated that the redirect requestor retains section 2.2 reservation priority rights on its original path. 41 Under section 22.1(c), which pertains to redirects on a non-firm basis, the transmission customer retains its right to schedule firm point-to-point service on its original path. This means that the transmission customer retains its original rights on its original path including its rollover rights on its original path and the requestor does not obtain new rollover rights on the redirected path. However, there is no similar provision in section 22.2 for redirects on a firm basis. 42

57. Southern Companies argues that a request by a transmission customer to redirect service on a firm basis cannot change that customer's rollover rights on the original path and does not confer rollover rights on the redirected path. We disagree. Section 22.2 provides that, while a transmission customer's request for new service on a firm basis is pending , the transmission customer retains its priority for service on its existing path, including rollover rights on its existing path. However, once a transmission customer's request for firm transmission service at new receipt and delivery points is accepted and confirmed, the new reservation governs the rights at the new receipt and delivery points and the transmission customer can obtain rollover rights with respect to the redirected capacity. In addition, at the time the transmission customer's request for the redirected capacity is accepted and confirmed, the transmission customer loses all rights to the original receipt and delivery points, including rollover rights associated with the original path.

58. As part of its process of review, NAESB identified several questions that were raised regarding rollover rights under the pro forma OATT during members' deliberations on Standard 001-9.7. These questions generally raised issues with respect to whether customers retain rollover rights on both the original and the redirected path.

59. A long-term firm transmission customer may request multiple, successive redirects and, as provided in section 22.2 of the pro forma OATT, each such successive request is treated as a new request for service in accordance with section 17 of the pro forma OATT. As a new request for service, each request is subject to the availability of capacity and subject to the possibility that the transmission provider may not be able to provide rollover rights on the new, redirected path. For example, assume a transmission customer with a one-year agreement for service between points A and B. If the transmission customer seeks to redirect on a firm basis in month 4 to points C to D and then redirect back to points A to B thereafter, at the end of the one year agreement the transmission customer would have rollover rights only with respect to points A to B. 43 With the same assumptions, if the transmission customer begins with points A to B, but redirects in month 4 to points C to D for the remainder of the one-year agreement, the transmission customer would have rollover rights only with respect to points C to D. If the transmission provider is unable to provide rollover rights on any redirected path, whether to points C to D or, thereafter, to points A to B, it would have to demonstrate at the time of the redirect request that it has native load growth or contracts that commence in the future that prevent it from providing rollover rights. 44

60. If a transmission provider claims, either at the time of the original transmission request or at the time of a redirect request, that it is unable to provide rollover rights because it has native load growth or a contract that commences in the future, it must still offer transmission service for the time preceding the native load growth or commencement of the future contract. As explained above, however, it may limit rollover rights based on native load growth or contracts that commence in the future.

61. Further, if a transmission customer with a long-term firm transmission agreement requests to redirect on a firm basis for one month and then redirect on a firm basis back to its original receipt and delivery points for the remainder of the term of the agreement, such requests do not convert its existing long-term firm transmission service agreement into separate short-term transmission service agreements. 45 Under this scenario, the transmission customer has rollover rights for the original receipt and delivery points, because those are the points to which it has rights at the end of the agreement.

62. Standard 001-10.6 states:

63. In this standard, the phrase “all other types” is not defined. In the Standards NOPR, the Commission interpreted this phrase to apply only to services that are comparable to non-firm secondary point-to-point service, proposed to accept the standard based on this interpretation, and invited comments on this interpretation.

64. Cinergy, the Midwest ISO and NAESB support the Commission's interpretation of Standard 001-10.6 in the Standards NOPR. Cinergy also proposes that the WEQ consider revising the standard to read as follows:

65. Since there is no disagreement with the Commission's interpretation of Standard 001-10.6 in the Standards NOPR, we will adopt this standard as proposed. We will allow the WEQ to determine whether this standard would be clearer if revised as Cinergy proposes.

66. Bonneville states that the Commission's current OASIS Standards and Communication Protocols and OASIS Data Dictionary and the NAESB WEQ version of those documents contain some definition discrepancies, most likely due to editing errors during the reformatting process. It proposes four minor technical revisions to Standard 002-4.2.10.2, Status Value, for the status values for COUNTEROFFER, DECLINED, DISPLACED and REFUSED. In addition, Bonneville suggests that a data element “ANNULLED” be added to the OASIS Data Dictionary and that it be defined as “assigned by Provider or Seller when, by mutual agreement with the Customer, a confirmed reservation is to be voided (Final State).”  47

67. Bonneville's request for the four technical revisions is moot. On March 25, 2005, the WEQ made the requested minor revisions to its January 15, 2005 standards. As to Bonneville's suggestion that a data element “ANNULLED” be added to the OASIS Data Dictionary, this definition is included in Standard 002-4.2.10.2, but is not currently included in the Commission's Data Dictionary. If Bonneville wishes to have this definition included in the OASIS Data Dictionary, it may submit a request to the WEQ to make such a change. In that way, the requested change will receive consideration by all industry segments before it is approved. If approved, the Commission will then have the opportunity to incorporate the change by reference in its regulations when the WEQ reports the next version of its standards to the Commission.

68. Bonneville and the ISO/RTO Council raise concerns about Standard 002-4.5, Information Supported by Web page, which states:

69. Bonneville contends that this standard requires the exclusive use of INFO.HTM. It argues that as long as postings are logically organized, user friendly and transparent to all users, exclusive use of INFO.HTM should not be mandated to provide links to the required informational postings. 48

70. The ISO/RTO Council recommends that the Commission consider revising the standard to allow the information defined in Standard 002-4.5 to be posted on either the OASIS Main/Home page (as customers are accustomed to that posting) or INFO.HTM—rather than prescribing that they all must be on INFO.HTM. The ISO/RTO Council contends that very few OASIS sites use an INFO.HTM page. Thus, enforcing this requirement would be a new practice and would add confusion to the finding of such information, and may create duplicate links to the same information that would only lead to further confusion. 49

71. We do not interpret Standard 002-4.5 to mandate the exclusive use of INFO.HTM to provide links to required informational postings. While this standard requires certain information to be made available through a link from INFO.HTM, this does not preclude the posting of the same information elsewhere on OASIS, such as on the main or home page, as the ISO/RTO Council suggests, or, as Bonneville suggests, in a manner that is logically organized, user friendly and transparent to all users. Requiring informational postings to be available through a link from INFO.HTM provides for standardization and helps new users find the required information. At the same time, permitting links from other areas of OASIS allows flexibility.

72. In the Standards NOPR, the Commission declined to propose adopting the WEQ's Standards of Conduct for Electric Transmission Providers (WEQ-009) because they duplicate, with some problematic revisions, the Commission's existing regulations codifying the Standards of Conduct, rather than implementing these standards. 50 In addition, the Commission stated that “it would be useful if the WEQ would adopt standards comparable to those NAESB adopted regarding standards of conduct on the gas side.”  51

73. APPA supported the Commission's proposal in the Standards NOPR not to incorporate duplicative standards. 52 NAESB stated that it would review the wholesale gas quadrant standards of conduct to prepare comparable standards for the wholesale electric quadrant which would amend the WEQ standards. 53

74. We will not incorporate by reference the WEQ's Standards of Conduct for Electric Transmission Providers (WEQ-009) since they duplicate the Commission's regulations. As explained above, the WEQ has offered to revise its standards of conduct to implement the Commission's standard of conduct regulations, rather than duplicate them. We look forward to reviewing this work product when it is completed.

75. The Commission proposed in the Standards NOPR to incorporate by reference in its regulations most of the standards adopted by the WEQ and to require that all public utilities revise their OATTs to include these standards. Some commenters question the applicability of the standards or possible waiver of the standards. These commenters raise issues concerning: (1) Possible variances for regional practices that may be inconsistent with the national standards; (2) waivers of certain standards for small entities or for ISOs and RTOs; and (3) whether non-public utilities (including Canadian entities) that participate in the wholesale electric power market can generally meet the open access reciprocity requirement established in Order Nos. 888  54 and 889 without complying with these standards and whether they may apply for waivers of particular standards on a case-by-case basis.

76. The Commission recognizes, as it did in Order Nos. 888 and 889, that there is a need for regional variances and waivers. Certain regions may conduct business differently than other regions. The current WEQ standards recognize this. We also recognize that ISOs and RTOs operate using a business model for making transmission reservations to which certain OASIS and other standards may not be applicable.

77. In implementing the OASIS standards, the Commission has sought to determine whether compliance with a standard should be required of all public utilities or whether waivers or variances of those standards should be allowed. In some cases, the Commission has insisted on uniform national standards. For example, the Commission has required ISOs and RTOs to comply with naming standards for paths into, through and out of their territory, in order to facilitate moving power across the grid. 55

78. Now that the WEQ is developing these standards, we prefer that initially all regional and other generic requests for variances, such as to accommodate different business models, be raised during the WEQ standards development process, and we encourage participation by all interested persons in that process. 56 The standards adopted by the WEQ recognize the need, in specific circumstances, for regional differences to be recognized in a national standard. 57 Having the WEQ consider requests for regional differences to be reflected in a specific business practice standard will allow all industry segments, at the outset, to determine whether the standard should recognize such differences. By first submitting the request to the WEQ during development of the standard, the request may be resolved during the WEQ process. Even if the request is not resolved by the WEQ, the process will help create a record should the requester seek a variance or waiver when the standard is presented to the Commission.

79. We recognize that with respect to the standards being incorporated in this rule, some commenters request specific waivers or variances of certain of the WEQ standards and they cannot seek review of their issues at the WEQ prior to implementation. We do not have a sufficient record to resolve such issues in this proceeding. Therefore, we will require each public utility that wants a waiver of any standard we are incorporating by reference in this Final Rule to file a request for waiver. In its request for waiver the public utility should explain that it is seeking the waiver under this Final Rule, citing the caption and docket number of this proceeding, and should identify the specific standard(s) for which it requests waiver and make its arguments as to why the waiver should be granted. Utilities, including ISOs and RTOs, that have existing waivers of certain OASIS standards may reapply for such waivers using the following simplified procedures. They should identify the specific standards from which they are seeking waivers and provide the caption, date and docket number of the proceeding in which they received the waiver and of this Final Rule and must certify that the circumstances warranting such waivers have not changed. Requests for waivers must be filed on or before June 1, 2006.

80. Moreover, the exemptions previously granted by the Commission will not be expanded to apply to the new WEQ OASIS standards dealing with redirects and multiple requests because it is not clear, at this point, that all public utilities that previously obtained waivers of the OASIS posting requirements will need waivers of these standards.

81. NY Transmission Owners argues that ISOs and RTOs should be allowed to upgrade from the minimally acceptable business practice required in a business practice standard. The business practice standards we are adopting here are minimum standards and all public utilities, including ISOs and RTOs, can provide customers with more flexibility than afforded by the standards. Such improvements must provide customers with increased flexibility, but should not affect customers' ability to utilize the standard procedure or adversely affect the rights of those not a party to the revision to meet the minimum standards criteria established. 58 Any such improvement would need to be filed with the Commission as a request to amend the public utility's OATT.

82. NY Transmission Owners asks that public utilities that are members of ISOs and RTOs not be required to revise their OATTs to incorporate the proposed OASIS standards, because the ISOs or RTOs operate their OASIS.

83. We agree with NY Transmission Owners. A public utility whose OASIS is administered by an ISO or RTO may comply with the requirement to include the OASIS standards in its OATT by adding a provision to its OATT stating that the ISO or RTO will be performing these functions on its behalf.

84. Several commenters  59 argue that small utilities that previously have obtained waivers from the Commission from compliance with the requirements of Order Nos. 888 and 889 should be granted an automatic waiver of the OASIS-related business practice standards proposed to be incorporated by reference by the Standards NOPR. Moreover, to the extent that public utilities need to apply for a waiver of the OASIS-related business practice standards, TAPS requests that the Commission clarify that the waiver criteria provided in Order Nos. 888, 889, and 2004 should be applied to the pertinent WEQ standards, rather than the criteria in the two orders cited in the Standards NOPR, 60 which relate to the stricter standard for waivers under Order No. 2001. 61

85. We will extend to small entities (that the Commission previously granted waivers of the Commission's OASIS-related standards) a streamlined procedure for requesting waivers of the corresponding newly adopted OASIS-related standards, as long as the circumstances warranting such waivers remain unchanged. For small entities to obtain such a waiver, they must file a letter explaining that they are seeking a waiver under this Final Rule, citing the caption and docket number of this proceeding, and identifying the caption, date and docket number of the proceeding in which they received their waiver and certifying that the circumstances warranting such waivers have not changed. These waivers would not apply to newly created standards, including standards to: Facilitate redirects of transmission service; address multiple submissions of identical transmission requests and queuing issues; and address Coordinate Interchange, ACE Equation Special Cases, Manual Time Error Correction, and Inadvertent Interchange Payback.

86. We also note that, while the costs of creating a fully functional OASIS Web site may be beyond the resources of a small company, such a company could comply with the redirect standards without undue additional cost. Nevertheless, a small company that believes that compliance with a particular redirect or other business practice standards would cause it hardship may request a waiver of a particular standard for good cause. Such a request will be evaluated on a case-by-case basis. In its waiver request, the requesting entity should specifically reference the standard at issue, describe its problems in complying with the standard, and describe how the entity intends to process such transactions.

87. We agree with TAPS and clarify that the appropriate criteria governing waiver requests relating to OASIS-related business practice standards should be the applicable criteria regarding waivers under Order Nos. 888 and 889, which were laid out in Black Creek Hydro, Inc. , 77 FERC ¶ 61,232 (1996) ( Black Creek ), 62 and in Inland Power & Light Company, 84 FERC ¶ 61,301 (1998) ( Inland P&L ) and for the Commission's Standards of Conduct under Order No. 2004, 63 which were laid out in Bear Creek Storage Company , 108 FERC ¶ 61,011 (2004) ( Bear Creek ), among other cases. In Inland P&L , the Commission explained that waiver of Order No. 889 is appropriate: (1) If the applicant owns, operates, or controls only limited and discrete transmission facilities (rather than an integrated transmission grid); or (2) if the applicant is a small public utility  64 that owns, operates, or controls an integrated transmission grid (unless it is a member of a tight power pool, or other circumstances are present that indicate that a waiver is not justified). The waiver would last until such time as the public utility receives a request for transmission service, at which time the public utility must file a pro forma OATT within 60 days. 65 Moreover, as the Commission explained in Inland P&L , the Commission has held, among other matters, that a waiver of Order No. 889 remains in effect until an entity evaluating its transmission needs finds that it needs the information not being reported (because of the waiver) and files a complaint on this subject with the Commission and the Commission takes action in response to the complaint. 66

88. Finally, the Commission routinely processes requests for waivers and does not see a need to include a specific reference to waivers for non-public utilities in Part 38, as requested by NRECA. We will apply the same principles in granting waivers that the Commission established in Inland P&L and other relevant Commission cases.

89. The ISO/RTO Council argues that requiring compliance with business practice standards by Canadian entities, which are non-jurisdictional, through the imposition of reciprocity conditions is not appropriate. It contends that the open access considerations underlying Order No. 888 should not be assumed to apply to the business practice standards. The ISO/RTO Council urges that, at a minimum, the Commission should defer consideration of this condition at this time, pending further review. 67

90. The Commission previously found that OASIS-related rules are necessary for reciprocity tariffs of non-jurisdictional entities unless an entity has shown that a waiver is justified. Canadian entities have not requested any generic changes to this policy. 68 Thus, at this time, we will retain our current policy. Canadian entities with reciprocity tariffs that need a waiver of particular standards may request such a waiver.

91. The Standards NOPR included an information collection statement that projected the annualized cost of complying with the proposals in the Standards NOPR and invited comments on this cost estimate. In response, FirstEnergy Companies states that it “cannot comment on the estimated cost of compliance” but requests that the Commission approve the recovery of the actual costs of compliance. FirstEnergy Companies argues that such cost recovery is warranted because compliance with the WEQ standards will be mandatory. 69

92. The Commission typically allows recovery in rates of prudently incurred costs to comply with standards such as those promulgated by the WEQ, and we will make those determinations on a case-by-case basis.

93. In the Standards NOPR, the Commission explained that, in section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Congress requires federal agencies to use technical standards developed by voluntary consensus standards organizations, like NAESB's WEQ, as a means to carry out policy objectives or activities. 70 As the Commission has pointed out on several occasions, 71 incorporation by reference is the appropriate, and indeed the required, method for adopting copyrighted standards material. 72 The Standards NOPR also explained that, as required by the NTTAA, the WEQ standards are reasonably available from NAESB.

94. Three commenters oppose the proposal to allow NAESB to charge a fee to obtain its copyrighted materials. They argue that these materials should be made available at no charge. In particular, NEPOOL cautions against mandating compliance with standards that are only accessible to NAESB members, to those that pay a fee or to those that travel to the FERC Public Reference Room in Washington, DC, and that carry licensing restrictions. NEPOOL argues that these accessibility concerns extend not only to all the public utilities that will be affected by any final rule in this proceeding, but also to all customers of transmission services that need to review them.

95. Similarly, IRH requests that the Commission remove any fee or membership restrictions currently placed by NAESB on obtaining access to the most current standards incorporated by reference by the Commission. IRH argues that these documents should be freely available to the public. UI similarly claims that these fee and licensing restrictions will seriously limit the ability of entities to obtain access to applicable regulatory requirements pertaining to OASIS. UI argues that existing OASIS standards are presently available to the public, at no charge, and any amendments proposed by the WEQ to those standards as part of this rulemaking proceeding should also be publicly available.

96. The Commission neither determined the fees for the standards, nor are we in a position to waive the fees charged by NAESB. NAESB's policies are set by the industry, and the industry has determined that charging fees for access to the standards is appropriate. To the extent the commenters wish to change this NAESB policy, they need to pursue this issue at NAESB to craft an approach that a consensus of the industry finds reasonable.

97. As the Commission has explained in previous orders, 73 the Commission cannot waive or otherwise change the NAESB policy. Section 12 of NTTAA establishes a government policy under which agencies are to rely upon, and adopt, private sector standards, such as those adopted by the WEQ, whenever practicable and appropriate. 74 The Freedom of Information Act and its implementing regulations establish that the proper method of adopting such copyrighted material by a federal agency is to incorporate it by reference into the agency's regulations. 75 To be eligible for incorporation by reference, the document must be reasonably available to the class of persons affected by the publication. 76 Once adopted, a copy must be provided to the Office of the Federal Register for viewing and the material must be available and readily obtainable. Neither the statute nor the regulations require that the standards be available at no cost. Indeed, standards incorporated by reference are exempt from the requirement that the agency charge fees for providing copies of documents according to its fee schedule. 77 The Office of the Federal Register has approved the WEQ standards for incorporation by reference. Most standards incorporated by reference in government regulations require a fee or charge to obtain the standards. The American National Standards Institute (ANSI), which administers and coordinates the U.S. voluntary standardization and conformity assessment system, explains that fees for standards are necessary because “while most of the people working on standards development are volunteers, standards developers incur expense in the coordination of these voluntary efforts.”  78

98. The Commission finds that the WEQ standards meet the test of being reasonably accessible to all industry members. Members of NAESB obtain access to the standards for free. Those who choose not to join can obtain the standards booklet for a fee of $100. 79 The commenters do not, and cannot reasonably, contend that a $100 cost constitutes an extreme burden to members of the electric industry.

99. As to NEPOOL's argument that these standards will need to be accessed not only by public utilities, but also by their customers, we do not find that $100 is beyond the means of most customers, and the public utilities may be willing to make the standards available to their customers to review. In our view, the costs public utilities will incur to obtain these standards from NAESB are a de minimis expense since the benefits to the industry and the public of replacing a Commission-driven approach to standards development with the NAESB process far outweighs the burden of these costs. In fact, one of the major reasons for having the WEQ develop standards is that it is far more efficient and cost effective for the industry than having the Commission develop standards, like OASIS, using Commission processes.

100. The Version 000 standards we are incorporating by reference in this Final Rule must be implemented by July 1, 2006. Public utilities are required to include these standards in their OATTs. Public utilities filing proposed revisions to their OATTs to include these standards must do so with their next unrelated OATT filing in accordance with the following schedule. On or after June 1, 2006, a public utility filing proposed OATT revisions unrelated to this rule is required to file proposed revisions to its OATT to include the standards adopted in this Final Rule as part of that filing. (Prior to June 1, 2006, a public utility filing proposed OATT revisions unrelated to this rule has the option of filing proposed OATT revisions to include the standards adopted in this Final Rule as part of that filing.) As the standards adopted in this Final Rule must be implemented by July 1, 2006, the OATT revisions filed to comply with this rule are to include an effective date of July 1, 2006. 80 Any requests for waiver of any of these standards must be filed on or before June 1, 2006.

101. If adoption of these standards does not require any changes or revisions to existing OATT provisions, public utilities may comply with this rule by adding a provision to their OATTs that incorporates the standards adopted in this rule by reference, including the standard number and Version 000 to identify the standard. To incorporate these standards into their OATTs, public utilities must use the following language in their OATTs:

• Business Practices for Open Access Same-Time Information Systems (OASIS) (WEQ-001, Version 000, January 15, 2005, with minor corrections applied on March 25, 2005, and additional numbering added October 3, 2005) including Standards 001-0.2 through 001-0.8, 001-2.0 through 001-9.6.2, 001-9.8 through 001-10.8.6, and Examples 001-8.3-A, 001-9.2-A, 001-10.2-A, 001-9.3-A, 001-10.3-A, 001-9.4.1-A, 001-10.4.1-A, 001-9.4.2-A, 001-10.4.2-A, 001-9.5-A, 001-10.5-A, 001-9.5.1-A, and 001-10.5.1-A;

• Business Practices for Open Access Same-Time Information Systems (OASIS) Standards & Communication Protocols (WEQ-002, Version 000, January 15, 2005, with minor corrections applied on March 25, 2005, and additional numbering added October 3, 2005) including Standards 002-1 through 002-5.10;

• Open Access Same-Time Information Systems (OASIS) Data Dictionary (WEQ-003, Version 000, January 15, 2005, with minor corrections applied on March 25, 2005, and additional numbering added October 3, 2005) including Standard 003-0;

• Coordinate Interchange (WEQ-004, Version 000, January 15, 2005, with minor corrections applied on March 25, 2005, and additional numbering added October 3, 2005) including Purpose, Applicability, and Standards 004-0 through 004-13, and 004-A through 004-D;

• Area Control Error (ACE) Equation Special Cases Standards (WEQ-005, Version 000, January 15, 2005, with minor corrections applied on March 25, 2005, and additional numbering added October 3, 2005) including Purpose, Applicability, and Standards 005-0 through 005-3.1.3, and 005-A;

• Manual Time Error Correction (WEQ-006, Version 000, January 15, 2005, with minor corrections applied on March 25, 2005, and additional numbering added October 3, 2005) including Purpose, Applicability, and Standards 006-0 through 006-12; and

• Inadvertent Interchange Payback (WEQ-007, Version 000, January 15, 2005, with minor corrections applied on March 25, 2005, and additional numbering added October 3, 2005) including Purpose, Applicability, and Standards 007-0 through 007-2, and 007-A.

102. If a public utility requests waiver of a standard, it will not be required to comply with the standard until the Commission acts on its waiver request. Therefore, if a public utility has obtained a waiver or has a pending request for a waiver, its proposed revision to its OATT should not include the standard number associated with the standard for which it has obtained or seeks a waiver. Instead, the public utility's OATT should specify those standards for which the public utility has obtained a waiver or has pending a request for waiver. Once a waiver request is denied, the public utility will be required to include in its OATT the standard(s) for which waiver was denied.

103. Office of Management and Budget (OMB) Circular A-119 (section 11) (February 10, 1998) provides that when a Federal agency issues or revises a regulation containing a standard, the agency should publish a statement in the final rule stating whether the adopted standard is a voluntary consensus standard or a government-unique standard. In this rulemaking, the Commission is incorporating by reference voluntary consensus standards developed by the WEQ.

104. OMB's regulations in 5 CFR 1320.11 (2005) require that it approve certain reporting and recordkeeping requirements (collections of information) imposed by an agency. Upon approval of a collection of information, OMB assigns an OMB control number and an expiration date. Respondents subject to the filing requirements of this Final Rule will not be penalized for failing to respond to these collections of information unless the collections of information display a valid OMB control number.

105. This Final Rule will affect the following existing data collections: Electric Rate Schedule Filings (FERC-516) and Standards for Business Practices and Communication Protocols for Public Utilities (FERC-717) (formerly Open Access Same Time Information System).

106. The following burden estimates cover compliance with this rule:

Public Reporting Burden:

The Bank Secrecy Act  1 authorizes the Secretary of the Treasury (Secretary) to issue regulations requiring financial institutions to keep records and file reports that are determined to have a high degree of usefulness in criminal, tax, and regulatory matters, or in the conduct of intelligence or counter-intelligence activities, to protect against international terrorism, and to implement counter-money laundering programs and compliance procedures. 2 The Secretary's authority to administer the Bank Secrecy Act has been delegated to the Director of the Financial Crimes Enforcement Network. Our regulations implementing the Bank Secrecy Act are codified at 31 CFR part 103.

With the enactment of 31 U.S.C. 5318(g) in 1992, 3 Congress authorized the Secretary to require financial institutions to report suspicious transactions. As amended by the USA PATRIOT Act, subsection 5318(g)(1) states that:

Subsection (g)(2)(A) provides further:

Subsection (g)(3)(A) provides that neither a financial institution, nor any director, officer, employee, or agent of any financial institution

Finally, subsection (g)(4) requires the Secretary, “to the extent practicable and appropriate,” to designate “a single officer or agency of the United States to whom such reports shall be made.”  4 The designated agency is in turn responsible for referring any report of a suspicious transaction to “any appropriate law enforcement, supervisory agency, or U.S. intelligence agency for use in the conduct of intelligence or counterintelligence activities, including analysis, to protect against international terrorism.”  5

This final rule applies to investment companies that are “mutual funds,” which are open-end management investment companies as described in the Investment Company Act of 1940 (15 U.S.C. 80a). Mutual funds are the predominant type of investment companies. As of September 2005, investors held approximately $8.6 trillion in U.S. mutual fund shares, representing more than 95 percent of the assets held by investment companies regulated by the U.S. Securities and Exchange Commission (Commission). 6 Currently, more than 2,400 active mutual funds are registered with the Commission. 7

This final rule is part of a series of steps that we are taking to address comprehensively the risk of money laundering through mutual funds. In April 2002, we issued an interim final rule to implement section 352 of the USA PATRIOT Act. The interim final rule required mutual funds to develop and implement anti-money laundering programs designed to prevent them from being used to launder money or finance terrorist activities, which includes achieving and monitoring compliance with the applicable requirements of the Bank Secrecy Act and its implementing regulations. 8 In May 2003, we issued, jointly with the Commission, a final rule to implement section 326 of the USA PATRIOT Act, requiring mutual funds to implement reasonable procedures to: (1) Verify the identity of any person seeking to open an account, to the extent reasonable and practicable; (2) maintain records of the information used to verify the person's identity; and (3) determine whether the person appears on any lists of known or suspected terrorists or terrorist organizations provided to investment companies by any federal government agency and designated as such by the Department of the Treasury in consultation with federal functional regulators. 9

The proposed rule was published in the Federal Register on February 2, 2006, at 71 FR 5631. No public comments were received. The only change made to this final rule was to move portions of the information into appendices.

It has been determined that 32 CFR part 275 is not a significant regulatory action. The rule does not (1) Have an annual effect to the economy of $100 million or more or adversely affect in a material way the economy; a section of the economy; productivity; competition; jobs; the environment; public health or safety; or State, local, or tribal governments or communities; (2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another Agency; (3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs, or the rights and obligations of recipients thereof; or (4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in this Executive order.

It has been certified that this rule is not subject to the Regulatory Flexibility Act (5 U.S.C. 601) because it would not, if promulgated, have a significant economic impact on a substantial number of small entities because it is only concerned with accessing financial records as prescribed by Federal law.

It has been certified that this rule does not impose reporting or recordkeeping requirements under the Paperwork Reduction Act of 1995.

It has been certified that this rule does not contain a Federal mandate that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year.

It has been certified that this rule does not have federalism implications, as set forth in Executive Order 13132. This rule does not have substantial direct effects on the States, the relationship between the National Government and the States, or the distribution of power and responsibilities among the various levels of government.

We did not publish a notice of proposed rulemaking (NPRM) for this regulation. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing an NPRM. Publishing an NPRM would be impracticable and contrary to public interest because immediate action is necessary to protect those using the waterway. Because of the danger posed to the swimmers competing within a confined area, special local regulations are necessary to provide for the safety of event participants, support craft and other vessels transiting the event area. For the safety reasons noted, it is in the public interest to have these regulations in effect during the event. However advance notifications will be made to users of the waterway via marine information broadcasts, local notice to mariners, area newspapers and radio stations.

On June 10, 2006, the Escape from Fort Delaware Triathlon, Inc. will sponsor the “6th Annual Escape from Fort Delaware Triathlon”. The swimming segment of the event will consist of approximately 500 swimmers competing across a one mile course along the Delaware River between Pea Patch Island and Delaware City, Delaware. The competition will begin at Pea Patch Island. The participants will swim across to the finish line located at the Delaware City Wharf, swimming approximately one mile, across Bulkhead Shoal Channel. Approximately 20 support vessels will accompany the swimmers. Due to the need for vessel control during the swimming event, the Coast Guard will temporarily restrict vessel traffic in the event area to provide for the safety of participants, support craft and other transiting vessels.

The Coast Guard is establishing temporary special local regulations on specified waters of the Delaware River between Fort Delaware on Pea Patch Island and the Delaware City Wharf at Delaware City, Delaware. The temporary special local regulations will be in effect from 5:30 a.m. to 10:30 a.m. on June 10, 2006. The effect 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 may be allowed to transit the regulated area at slow speed as the swim progresses, when the Coast Guard Patrol Commander determines it is safe to do so. The Patrol Commander will notify the public of specific enforcement times by Marine Radio Safety Broadcast. These regulations are needed to control vessel traffic during the event to enhance the safety of participants, spectators and transiting vessels.

This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, 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.

Although this regulation restricts vessel traffic from transiting a portion of the Delaware River during the event, the effect of this regulation will not be significant due to the limited duration that the regulated area will be in effect and the extensive advance notifications that will be made to the maritime community via marine information broadcasts, area newspapers and radio stations so mariners can adjust their plans accordingly.

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this 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 rule will not have a significant economic impact on a substantial number of small entities. This rule will affect the following entities, some of which may be small entities: the owners or operators of vessels intending to transit this section of the Delaware River during the event.

This rule will not have a significant economic impact on a substantial number of small entities for the following reasons. This rule will be in effect for only a short period, from 5:30 a.m. to 10:30 a.m. on June 10, 2006. Vessels desiring to transit the event area will be able to transit the regulated area at slow speed as the swim progresses, when the Coast Guard Patrol Commander determines it is safe to do so. Before the enforcement period, we will issue maritime advisories so mariners can adjust their plans accordingly.

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 the rule so that they could better evaluate its effects on them and participate in the rulemaking process. 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 the address listed under ADDRESSES . The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.

Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247).

This rule calls 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 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 rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

This rule will 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 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 rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not create an environmental risk to health or risk to safety that may disproportionately affect children.

This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does 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 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 rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.

We have analyzed this rule under Commandant Instruction M16475.lD, which guides the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded that there are no factors in this case that would limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Therefore, this rule is categorically excluded, under figure 2-1, paragraph (34)(h), of the Instruction, from further environmental documentation. Special local regulations issued in conjunction with a regatta or marine event permit are specifically excluded from further analysis and documentation under those sections. Under figure 2-1, paragraph (34)(h), of the Instruction, an “Environmental Analysis Check List” and a “Categorical Exclusion Determination” are not required for this rule.

On February 9, 2006, we published a notice of proposed rulemaking (NPRM) entitled Special Local Regulations for Marine Events; Maryland Swim for Life, Chester River, Chestertown, MD in the Federal Register (71 FR 6713). No letters were received commenting on the proposed rule. No public meeting was requested, and none was held.

On June 17, 2006, the Maryland Swim for Life Association will sponsor the “Maryland Swim for Life”, an open water swimming competition held on the waters of the Chester River, near Chestertown, Maryland. Approximately 100 swimmers start from Rolph's Wharf and swim up-river 2.5 miles then swim down-river returning back to Rolph's Wharf. A fleet of approximately 20 support vessels accompanies the swimmers. The regulations at 33 CFR 100.533 are effective annually for the Maryland Swim for Life marine event. Paragraph (d) of Section 100.533 establishes the enforcement date for the Maryland Swim for Life. This regulation changes the enforcement date from the second Saturday in July to the third Saturday in June each year. Notice of exact time, date and location will be published in the Federal Register prior to the event. The Maryland Swim for Life Association who is the sponsor for this event intends to hold it annually. To provide for the safety of participants and support vessels, the Coast Guard will temporarily restrict vessel traffic in the event area during the swim.

No comments were received in response to our notice of proposed rulemaking and accordingly no changes have been made to the regulatory text.

This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, 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. It is not “significant” under the regulatory policies and procedures of the Department of Homeland Security (DHS).

We expect the economic impact of this rule to be so minimal that a full Regulatory Evaluation under the regulatory policies and procedures of DHS is unnecessary. The effect of this action merely establishes the dates on which the existing regulations would be in effect and would not impose any new restrictions on vessel traffic.

Although this regulation prevents traffic from transiting a portion of the Chester River during the event, the effect of this regulation will not be significant due to the limited duration that the regulated area will be in effect and the extensive advance notifications that will be made to the maritime community via marine information broadcasts, local radio stations and area newspapers so mariners can adjust their plans accordingly.

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this 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 rule will not have a significant economic impact on a substantial number of small entities. This rule will affect the following entities, some of which may be small entities: the owners or operators of vessels intending to transit this section of the Chester River during the event.

This rule would not have a significant economic impact on a substantial number of small entities for the following reasons. This rule merely establishes the dates on which the existing regulations would be in effect of the regulated area and would not impose any new restrictions on vessel traffic.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we offered to assist small entities in understanding the rule so that they could better evaluate its effects on them and participate in the rulemaking process. 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 the address listed under ADDRESSES.

Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247).

This rule calls 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 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 rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

This rule will 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 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 rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and will not create an environmental risk to health or risk to safety that may disproportionately affect children.

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

We have analyzed this 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 rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.

We have analyzed this rule under Commandant Instruction M16475.1D, which guides the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded that there are no factors in this case that would limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Therefore, this rule is categorically excluded, under figure 2-1, paragraph (34)(h), of the Instruction, from further environmental documentation. Special local regulations issued in conjunction with a regatta or marine parade permit are specifically excluded from further analysis and documentation under those sections. Under figure 2-1, paragraph (34)(h), of the Instruction, an “Environmental Analysis Check List” and a “Categorical Exclusion Determination” are not required for this rule.

On August 5 and August 6, 2006, the Kent Narrows Racing Association will sponsor the “Thunder on the Narrows” powerboat races, on Prospect Bay, near Kent Island Narrows, Maryland. The event will consist of approximately 75 hydroplanes and jersey speed skiffs racing in heats counter-clockwise around an oval racecourse. A fleet of spectator vessels is expected to gather near the event site to view the race. In order to ensure the safety of participants, spectators and transiting vessels, 33 CFR 100.530 will be enforced for the duration of the event. Under provisions of 33 CFR 100.530, from 9:30 a.m. to 6:30 p.m. on August 5 and 6, 2006, vessels may not enter the regulated area without permission from the Coast Guard Patrol Commander. Spectator vessels may anchor outside the regulated area but may not block a navigable channel. Because these restrictions will be in effect for a limited period, they should not result in a significant disruption of maritime traffic.

In addition to this notice, the maritime community will be provided extensive advance notification via the Local Notice to Mariners, and marine information broadcasts so mariners can adjust their plans accordingly.

We did not publish a notice of proposed rulemaking (NPRM) for this regulation. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing an NPRM. The information for the bridge construction was not given with sufficient time to publish an NPRM. Publishing an NPRM and delaying its effective date would be contrary to the public interest since immediate action is needed to minimize potential danger to the construction workers and mariners transiting the area. The Coast Guard will issue a broadcast notice to mariners to advise mariners of the restriction.

For the same reasons, under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . The Coast Guard will issue a broadcast notice to mariners and will place Coast Guard or local law enforcement vessels in the vicinity of this zone to advise mariners of the restriction.

Boh Brothers Construction will be pouring concrete for the new bridge columns on the west side of Sanibel Island Bridge “A” span. The concrete pour will take place in two phases on two different days. The first phase will consist of pouring the bottom half of the columns. Phase one is scheduled to take place on April 12, 2006, from 5 a.m. until 4 p.m. Phase two will involve pouring the top half of the columns. Phase two is tentatively scheduled to occur on April 27, from 5 a.m. until 4 p.m. The operation will require a 50 foot by 120 foot barge to be positioned in the center of the channel along with a tug and working skiffs. The nature of this work and the close proximity of the channel present a hazard to mariners transiting the area. This safety zone is being established to ensure the safety of life on the navigable waters of the United States.

The safety zone encompasses the following waters of San Carlos Bay, Florida: All waters from surface to bottom, within a 400 foot radius of the following coordinates: 26°28′59″N, 082°00′52″W. Vessels and persons are prohibited from anchoring, mooring, or transiting within this zone, unless authorized by the Captain of the Port St. Petersburg or his designated representative. The zone is effective from 5 a.m. on April 12 through 4 p.m. on May 10, 2006. The aforementioned safety zone enforcement dates may change due to environmental factors. Coast Guard Sector St. Petersburg will give notice of the enforcement of the safety zone by issuing a Broadcast Notice to Mariners beginning 24 to 48 hours prior to beginning the operation. On-scene notice will be provided by local Coast Guard and local law enforcement marine units enforcing the safety zone.

This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, 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. It is not “significant” under the regulatory policies and procedures of the Department of Homeland Security (DHS).

We expect the economic impact of this rule to be so minimal that a full Regulatory Evaluation under the regulatory policies and procedures of DHS is unnecessary. The rule will only be enforced for a limited amount of time. Moreover, vessels may still enter the safety zone with the express permission of the Captain of the Port St. Petersburg or his designated representative.

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this 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 rule will not have a significant economic impact on a substantial number of small entities. This rule may affect the following entities, some of which may be small entities: The owners or operators of vessels intending to transit near the Sanibel Island Bridge span “A” from 5 a.m. on April 12 through 4 p.m. on May 10, 2006. This safety zone will not have a significant economic impact on a substantial number of small entities for the following reasons. This rule will be enforced for a limited time when marine traffic is expected to be minimal. Additionally, traffic will be allowed to enter the zone with the permission of the Captain of the Port St. Petersburg or designated representative.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we offered to assist small entities in understanding the rule so that they could better evaluate its effects on them and participate in the rulemaking process. Small entities may contact the person listed under FOR FURTHER INFORMATION CONTACT for assistance in understanding and participating in this rulemaking. We also have a point of contact for commenting on actions by employees of the Coast Guard. Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247).

This rule calls 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 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 rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

This rule will 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 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 rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not create an environmental risk to health or risk to safety that may disproportionately affect children.

This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does 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 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 rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.

We have analyzed this rule under Commandant Instruction M16475.lD and Department of Homeland Security Management Directive 5100.1, which guides the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded that there are no factors in this case that would limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Therefore, this rule is categorically excluded, under figure 2-1, paragraph (34)(g), of the Instruction, from further environmental documentation. A final “Environmental Analysis Check List” and a final “Categorical Exclusion Determination” are available in the docket where indicated under ADDRESSES.

On March 21, 2000, the National Park Service published a regulation (36 CFR 3.24) on the management of personal watercraft (PWC) use within all units of the national park system (65 FR 15077). This regulation prohibits PWC use in all national park units unless the NPS determines that this type of water-based recreational activity is appropriate for the specific park unit based on the legislation establishing that park, the park's resources and values, other visitor uses of the area, and overall management objectives. The regulation banned PWC use in all park units effective April 20, 2000, except for 21 parks, lakeshores, seashores, and recreation areas. The regulation established a 2-year grace period following the final rule publication to provide these 21 park units time to consider whether PWC use should be permitted to continue.

Gulf Islands National Seashore is located in the northeastern portion of the Gulf of Mexico and includes a widely spaced chain of barrier islands extending nearly 160 miles from the eastern end of Santa Rosa Island in Florida to Cat Island in Mississippi. Other islands in the national seashore include Horn, Petit Bois, and East Ship and West Ship islands in Mississippi and a section of Perdido Key in Florida. Gulf Islands National Seashore also includes mainland tracts at Pensacola Forts and Naval Live Oaks Reservation near Pensacola, Florida, and Davis Bayou, adjacent to Ocean Springs, Mississippi. The national seashore contains 139,775.46 acres within the authorized boundary, excluding Cat Island (only a portion has been acquired as of this date). Of this total acreage, 19,445.46 acres are fastlands (above water) and 119,730 acres are submerged lands.

Gulf Islands National Seashore contains snowy-white beaches, sparkling blue waters, fertile coastal marshes, and dense maritime forests. Visitors can explore 19th century forts, enjoy shaded picnic areas, hike on winding nature trails, and camp in comfortable campgrounds. In addition, Horn and Petit Bois islands located in Mississippi are federally designated wilderness areas. Nature, history, and recreational opportunities abound in this national treasure. All areas of Gulf Islands National Seashore in the Florida District and the Davis Bayou area in the Mississippi District are reachable from Interstate 10. The Mississippi District barrier islands are only accessible by boat.

Gulf Islands National Seashore, Florida and Mississippi, was authorized by Act of Congress, Public Law 91-660, January 8, 1971, to provide for recognition of certain historic values such as coastal fortifications and other purposes such as the preservation and enjoyment of undeveloped barrier islands and beaches.

Gulf Islands National Seashore conserves certain outstanding natural, cultural and recreational resources along the Northern Gulf Coast of Florida and Mississippi. These include several coastal defense forts spanning more than two centuries of military activity, historic and prehistoric archaeological sites, and pristine examples of intact Mississippi coastal barrier islands, salt marshes, bayous, submerged grass beds, complex terrestrial communities, emerald green water, and white sand beaches.

Gulf Islands National Seashore was established for the following purposes:

• Preserve for public use and enjoyment certain areas possessing outstanding natural, historic, and recreational values.

• Conserve and manage the wildlife and natural resources.

• Preserve as wilderness any area within the national seashore found to be suitable and so designated in accordance with the provisions of the Wilderness Act (78 Stat. 890).

• Recognize, preserve, and interpret the national historic significance of Fort Barrancas Water Battery (Battery San Antonio), Fort Barrancas; Advanced Redoubt of Fort Barrancas at Pensacola Naval Station; Fort Pickens on Santa Rosa Island, Florida; Fort McRee site, Perdido Key, Florida; and Fort Massachusetts on West Ship Island, Mississippi, in accordance with the Act of August 21, 1935 (49 Stat. 666). That act states: “It is a National policy to preserve for public use historic sites, buildings, and objects of National significance for inspiration and benefits of the people of the United States.”

Gulf Islands National Seashore is significant for the following reasons:

• Nationally significant historical coastal defense forts representing a continuum of development.

• Several mostly undisturbed, natural areas in close proximity to major population centers.

• Areas of natural significant high quality beaches, dunes, and water resources.

• Endangered species occur in several areas.

• Contains regionally important prehistoric archaeological sites.

• Provides outstanding controlled areas conducive to the successful reintroduction of native threatened and endangered species.

• Provides habitat for early life stages of many coastal and marine flora and fauna of commercial and recreational importance.

• Provides a benchmark to compare environmental conditions in developed areas of the Gulf Coast.

Under the National Park Service's Organic Act of 1916 (Organic Act) (16 U.S.C. 1 et seq. ) Congress granted the NPS broad authority to regulate the use of the Federal areas known as national parks. In addition, the Organic Act (16 U.S.C. 3) allows the NPS, through the Secretary of the Interior, to “make and publish such rules and regulations as he may deem necessary or proper for the use and management of the parks * * *”

16 U.S.C. 1a-1 states, “The authorization of activities shall be conducted in light of the high public value and integrity of the National Park System and shall not be exercised in derogation of the values and purposes for which these various areas have been established * * *”

As with the United States Coast Guard, NPS's regulatory authority over waters subject to the jurisdiction of the United States, including navigable waters and areas within their ordinary reach, is based upon the Property and Commerce Clauses of the U.S. Constitution. In regard to the NPS, Congress in 1976 directed the NPS to “promulgate and enforce regulations concerning boating and other activities on or relating to waters within areas of the National Park System, including waters subject to the jurisdiction of the United States * * *” (16 U.S.C. 1a- 2(h)). In 1996 the NPS published a final rule (61 FR 35136; July 5, 1996) amending 36 CFR 1.2(a)(3) to clarify its authority to regulate activities within the National Park System boundaries occurring on waters subject to the jurisdiction of the United States.

Personal watercraft use emerged at Gulf Islands National Seashore in the 1980s. Although PWC use was a small percentage of total boat use within the national seashore, park staff believes that use had increased over the five years prior to the closure. If reinstated, PWC use at the national seashore is not expected to decrease. In fact, an increase in usage would be expected as more residents purchase personal watercraft and tourism continues to grow.

Prior to the closure to personal watercraft in April 2002, personal watercraft were recognized as a Class A motorboat and were treated as any other such vessel. All regulations that apply to any registered vessel operating in waters of Florida and Mississippi that are regulated by the NPS applied to personal watercraft.

Personal watercraft were permitted throughout the national seashore, except as follows: no motorized vessels are permitted above the mean high tide line on the designated wilderness islands of Horn and Petit Bois; the lakes, ponds, lagoons and inlets of East Ship Island, West Ship Island, Horn Island, Petit Bois Island, and Cat Island (lands under NPS management) are closed to the use of motorized vessels; the lagoons of Perdido Key within Big Lagoon are closed to all combustion engines; and the areas 200 feet from the remnants of the old fishing pier and 200 feet from the new fishing pier at Fort Pickens are closed to all boating operations. There are also seasonal closures to watercraft to protect nesting shorebirds and other sensitive wildlife and relict dunes.

Perdido Key in Florida and East Ship and West Ship islands in Mississippi have the most concentrated boating use within the national seashore. Many area residents in both States have boat docks and own boats or personal watercraft, and visit the national seashore.

Florida District. In Florida, the park is situated between the Gulf of Mexico and the Pensacola Bay system. Although the Gulf offers almost unlimited area for personal watercraft use, most operation occurs within the bay. In 2000, personal watercraft comprised 12.5% of all registered vessels statewide. In the Florida District of the park, it is estimated that personal watercraft comprised 0.5% of recreational boating. Personal watercraft traversed along the north shoreline of Santa Rosa Island while very few traversed the south, or Gulf, shoreline. In general, PWC usage within the Florida District of the park was concentrated in the Perdido Key area. During the summer months, most areas of PWC use consisted of 6 or 7 personal watercraft per month, while on a peak-use day PWC activity in the Perdido Key area might have comprised 25 personal watercraft. The reason for the higher use in the Perdido Key area is the sheltered nature of the area and the proximity to residences with launching facilities.

Mississippi District. The Mississippi portion of the park separates the Gulf of Mexico from the Mississippi Sound. Personal watercraft account for 6% of the registered boats in Mississippi, and it is estimated that they comprised approximately 4% of recreational boating in the Mississippi District of the park. The islands are situated between 6 to 14 miles from the mainland, weather conditions can change quickly, and large ships use the intracoastal waterway shipping channels. These factors combined to limit PWC use in the Mississippi District as transportation to the islands, and use of Gulfside waters was almost nonexistent except immediately adjacent to the islands. Observations of PWC use indicate that they were mainly used for recreational riding and not for transportation. Most personal watercraft used in the Mississippi District of the park were towed by larger boats from the Pascagoula/Biloxi/Gulfport, Mississippi, area. The primary use season reflects overall visitation patterns, with use decreasing during the winter months.

PWC use areas are similar to general motorboat use areas. Personal watercraft were concentrated mostly on the east and west tips of the islands, around the West Ship Island Pier, and the entire north side of Spoil Island.

On March 17, 2005, the National Park Service published a Notice of Proposed Rulemaking (NPRM) for the operation of PWC at Gulf Islands National Seashore (70 FR 12988). The proposed rule for PWC use was based on alternative B (one of three alternatives considered) in the Environmental Assessment (EA) prepared by NPS for Gulf Islands National Seashore. The EA was open for public review and comment from April 19, 2004 to May 18, 2004. Copies of the EA may be downloaded at http://www.nps.gov/ guis/pphtml/documents.html or obtained at park headquarters Monday through Friday, 8 a.m. to 4:30 p.m. Mail inquiries should be directed to park headquarters: Gulf Islands National Seashore, 1801 Gulf Breeze Parkway, Gulf Breeze, FL 32563.

The purpose of the EA was to evaluate a range of alternatives and strategies for the management of PWC use at Gulf Islands to ensure the protection of park resources and values, while offering recreational opportunities as provided for in the National Seashore's enabling legislation, purpose, mission, and goals. The analysis assumed alternatives would be implemented beginning in 2002 and considered a 10-year period, from 2002 to 2012. The EA evaluated three alternatives concerning the use of personal watercraft at Gulf Islands:

• The no-action alternative would continue the prohibition of PWC use in Gulf Islands National Seashore. No special rule would be promulgated.

• Alternative A would reinstate PWC use under a special NPS regulation as previously managed.

• Alternative B would reinstate PWC use under a special NPS regulation with additional management prescriptions.

Based on the environmental analysis prepared for PWC use at Gulf Islands, and after considering the comments received, as discussed below, the NPS considers alternative B the environmentally preferred alternative because it best fulfills park responsibilities as trustee of this sensitive habitat; ensures safe and healthy, productive, and aesthetically and culturally pleasing surroundings; and attains a wider range of beneficial uses of the environment without degradation, risk to health or safety, or other undesirable and unintended consequences.

This document contains regulations to implement alternative B at Gulf Islands National Seashore.

A proposed rule was published in the Federal Register for public comment on March 17, 2005 with the comment period lasting until May 16, 2005 (70 FR 12988). The National Park Service received 4,516 timely written responses regarding the proposed regulation and EA. Of the responses, 4,394 were form letters in 3 different formats, and 122 were separate letters. Of the 122 separate letters, 98 were from individuals, 10 from organizations, 5 from government agencies, 2 from Indian Tribes, and 7 from members of State legislatures and the U.S. Congress. Within the following discussion, the term “commenter” refers to an individual, organization, or public agency that responded. The term “comments” refers to statements made by a commenter.

1. One commenter stated that the environmental assessment (EA) failed to use the best data available and picked alternative B without adequate scientific justification.

NPS Response: Where data was lacking, best professional judgment prevailed, using assumptions and extrapolations from scientific literature, other park units where personal watercraft are used, and personal observations of park staff. The NPS believes that the EA is in full compliance with the court-ordered settlement and that the Finding of No Significant Impact (FONSI) shows that alternative B (reinstate PWC use with additional management prescriptions) is the preferred alternative and that the decision has been adequately analyzed and explained.

2. Several commenters stated that by allowing damaging PWC use on park waters the NPS violates its mandate to fully protect park resources.

NPS Response: No part of the settlement agreement or NPS analysis of PWC use has violated or overturned Gulf Islands National Seashore's enabling legislation. Both the personal watercraft settlement agreement and the authorizing legislation for Gulf Islands were considered when developing alternatives for the EA. The objective of the EA, as described in the “Purpose and Need” chapter, was derived from the enabling legislation for Gulf Islands. As further stated in that chapter, a special analysis on the management of personal watercraft was also provided under each alternative to meet the terms of the settlement agreement between Bluewater Network and the National Park Service.

As a result, the alternatives presented in the EA would protect resources and values while providing recreational opportunities at Gulf Islands. As required by NPS policies, the impacts associated with personal watercraft and other recreational uses are evaluated under each alternative to determine the potential for impairment to park resources. The NPS finds that the preferred alternative (alternative B) will not result in impairment of park resources and values for which Gulf Islands National Seashore was established.

3. One commenter stated that PWC usage, even with restrictions, will negatively impact the natural experience of Florida National Scenic Trail users and compromise the Certification Agreement between the Gulf Islands National Seashore, the USDA Forest Service, and the Florida Trail Association.

NPS Response: Under alternative B, the preferred alternative, as implemented in this final rule, a flat wake zone will be established 300 yards from all park shorelines at the low-water mark, with more stringent restrictions at West Ship Island Pier and around designated wilderness boundaries. This restriction should be sufficient in minimizing the disturbance to land-based recreational users, including trail users.

4. One commenter stated that the EA underestimated the PWC population in its analysis, and that the National Marine Manufacturers Association Web site was incorrectly quoted.

NPS Response: A check of the NMMA Web site revealed that indeed, PWC numbers for the years 2000 and 2001 are higher than quoted in the EA (1.24 million for 2000 and 1.29 million for 2001). However, the numbers were underestimated by approximately 23 percent for 2001, not 30 percent as the comment indicates.

Regardless, these are nationwide PWC numbers that were not used in the impacts analysis. The numbers used in the impacts analysis were park-specific, based on available visitor data for each district and observations by Gulf Islands National Seashore staff.

5. Several commenters stated that alternative B is in direct conflict with Florida law, which expressly prohibits discriminatory regulation of PWC.

NPS Response: The National Park Service has the authority to regulate maritime activities within Gulf Islands National Seashore boundaries. Although the NPS will seek to work cooperatively with state entities on vessel management, the National Park Service does not relinquish the authority to regulate activities that occur in NPS waters and that impact national seashore resources.

6. Several commenters stated that the EA fails to meet the requirements of NEPA because a reasonable range of alternatives was not evaluated. The park should have considered an alternative that better protects park wilderness values, water resources, and areas that were damaged by Hurricane Ivan.

NPS Response: The NPS believes a reasonable range of alternatives was evaluated, including an alternative that would reinstate PWC use as previously managed (alternative A), an alternative that would continue the PWC ban (no-action alternative), and the preferred alternative (alternative B), which will reinstate PWC use with additional management restrictions, such as additional flat wake zones. After analyses were done for every applicable impact topic with the best available data and input from the public was analyzed, Gulf Islands selected alternative B as its preferred alternative. Alternative B will allow PWC to use the majority of park waters, while still providing resource protection.

With regard to the wilderness areas, the park considered closing specific areas and designated beach access points, but ultimately determined that park resources and values would be protected with additional flat wake zone areas. PWC operating at a flat wake speed in the 0.5 mile flat wake zone around the wilderness areas would create the same amount, or perhaps less, noise than other watercraft that are also allowed near the wilderness areas.

With regard to keeping PWC farther away from fragile areas where pollutants can collect, within all areas of the park, collection of pollutants from PWC should be minimal under the final rule for the following reasons: Use is relatively low in all areas of the park; the flat wake speed zone areas will reduce the amount of pollutants emitted; and the bodies of water within the park are not closed and are subject to regular flushing. Hurricane Ivan had not occurred at the time the EA was written, but the impacts from PWC operating at flat wake speeds would probably not have a large impact on resources damaged by hurricanes. Through the Superintendent's Compendium, the park has the option of temporarily closing areas to all vessels if necessary to protect damaged resources.

7. Several commenters stated that the proposed restrictions under alternative B discriminate against PWC because alternative B regulates PWC use at Gulf Islands more restrictively than other motorized vessels without any reasonable justification.

NPS Response: It appears that PWC are being discriminated against but the prohibition from traveling above a flat wake speed for PWCs within 300 yards of the shoreline essentially equals the playing field for all vessels. Shallow, uneven bottom lands within 300 yards of most shorelines severely restrict vessels other than PWC from traveling at high speeds. These shallow waters in effect create a self-imposed speed restriction for all other vessels while PWCs were still able to travel at high speeds. Within 300 yards of shore you will find submerged aquatic vegetation (seagrass beds) and aquatic fauna. The jet engine thrust from a PWC running at high speeds through the shallow waters will likely impact these aquatic species. Also PWC traveling above a flat wake speed in these shallow near shore waters creates a potential for conflict and a safety concern for water sports enthusiast that may be restricted to these shallow waters and for fisherman traversing at slow speeds or at anchor.

Though these rules were developed specifically to regulate PWC use, the park realizes and appreciates that an appearance of discrimination exists between PWC and other vessels and that there may be a need for rulemaking to regulate vessels other than PWC in similar ways we are managing PWC. The park is committed to working toward rulemaking that will correct these differences.

8. One commenter was concerned that the current EA is being politically manipulated in order to reauthorize PWC operation and that the EA has made a 180 degree turn from the 2001 determination.

NPS Response: Due to the increased level of public comment and congressional interest, Gulf Islands reanalyzed the issues and impact topics described in the 2001 determination in more detail in the EA. The results of the in-depth analysis in the EA indicated that impacts would range from negligible to moderate for all impact topics, and chose alternative B as the preferred alternative.

9. One commenter stated that the proposed rule should be rejected because it unfairly limits PWC use and that the short- and long-term impacts of alternatives A and B are essentially identical.

NPS Response: The enabling legislation that established Gulf Islands National Seashore in 1971 states that the park was established “In order to preserve for public use and enjoyment certain areas possessing outstanding natural, historic and recreational values. * * *” The preferred alternative meets this legislation and the objectives of the national seashore to a large degree, as well as meeting the purpose and need for action, and therefore is within the legislative and regulatory duties of Gulf Islands National Seashore. NPS agrees that PWC use will neither impair nor significantly impact park resources. Impacts differ between alternative A and B for soundscapes, shoreline and submerged aquatic vegetation, wildlife and wildlife habitat, aquatic fauna, visitor use and experience, and visitor conflicts and safety. The EA provides sufficient justification for why alternative B (Reinstate PWC Use Under a Special Regulation with Additional Management Prescriptions) was chosen as the preferred alternative. Alternative B provides additional restrictions that are necessary for resource protection, and its selection is not arbitrary or capricious.

10. Mississippi Senator William G. Hewes III commented that allowing PWC in certain areas where boats are already prevalent is a better option than banning them outright.

NPS Response: Under this final rule, PWC use will be reinstated with additional management prescriptions to protect natural and cultural resources, to mitigate PWC safety concerns, to provide for visitor health and safety, and to enhance overall visitor experience. As part of this final rule, flat wake zones will be established in various locations within the national seashore.

11. One commenter suggested the placement of buoys along the coastline to delineate the flat wake zones.

NPS Response: The seashore has over 100 miles of shoreline. Placement of buoys throughout the entire park would not be feasible due to cost and maintenance, and the buoys would be confusing to most operators. The park believes that through education and enforcement, such delineation will not be necessary. Where it is shown that education or enforcement do not result in compliance, buoys could be placed as a temporary measure. The limits of the flat wake zones offer an envelope large enough to allow the prudent operator and enforcement officer to recognize when gross violation may be occurring.

12. One commenter is concerned that the prohibition of PWC within 200 feet of non-motorized vessels and people in the water will eliminate PWC use for legitimate and accepted recreational activities, such as towing and water sports.

NPS Response: Towing of waterskiers is allowed so long as the activity does not significantly impact natural resources or create potentially hazardous situations. The final rule will not preclude towing or water sports, but will control PWC speeds in portions of Seashore waters. The intent of the 200′ prohibition would apply to operating near swimmers, divers, fisherman, or non-motorized vessels that may be in or on the water, and are not affiliated with the PWC. Examples of times when the 200′ prohibition would not apply are as follows: A passenger, intended passenger or skier associated with the PWC who may be skiing, wading or waiting in the water to be picked up by the PWC. A water skier may not ski within the flat wake zone.

13. Several members of the Mississippi legislature and U.S. Congress stated that PWC should be allowed within Gulf Islands National Seashore and that they should not be discriminated against.

NPS Response: The EA analyzed a variety of impact topics to determine if personal watercraft use was consistent with the park's enabling legislation and management goals and objectives. As a result of this analysis, it was determined that the management prescriptions under alternative B, Reinstate PWC Use with Additional Management Prescriptions, would best protect natural and cultural resources, mitigate PWC safety concerns, provide for visitor health and safety, and enhance overall visitor experience.

14. One commenter suggested that a 100-yard flat wake zone be established for all motorized craft within park waters. Several commenters suggested that a 300-yard flat wake zone be established for all motorized craft within park waters, as the Final Rule governing PWC use in the Lake Mead National Recreation Area reflects. The U.S. Coast Guard and the National Association of State Boating Law Administrators have recommended a policy that requires uniform application of flat wake zones to all motorized vessels.

NPS Response: As described under the “Scope of the Analysis” in the “Purpose and Need” section of the EA, the focus of the EA is to define management alternatives specific to PWC use. The plan analyzed a variety of impact topics to determine if personal watercraft use was consistent with the park's enabling legislation and management goals and objectives. The goal of the EA was not to determine if these restrictions should also apply to boats. That analysis must be completed as part of a separate EA. Gulf Islands National Seashore will consider subsequent rulemaking to address the issue of flat wake zones for other watercraft.

15. One commenter stated that the EA reaches many conclusions regarding the impact of PWC upon Gulf Islands National Seashore resources and wildlife that are directly contradicted by the 2001 Determination, specifically regarding visitor conflicts and complaints from PWC.

NPS Response: No documented complaints have been received by the public regarding PWC. In addition, no comments were received about PWC in the annual visitor surveys over the last four years.

16. One commenter stated that there is no requirement that people use lower emission engines, so there is no legitimate basis for the assumption regarding cumulative impacts. In addition, the amount of emissions from PWC compared to cumulative emissions from all motorized watercraft is very high, considering the percentage of recreational boaters who use PWC is only 0.5.

NPS Response: Impact estimates for personal watercraft and other motorboats have been revised in the errata to more correctly reflect impacts to water quality as discussed on pages 107-125 of the EA. Based on these revised impact estimates, personal watercraft contribute up to 29 percent of the total pollutants to water in 2002 and up to 42 percent of the total pollutants in 2012, depending on the district (Florida or Mississippi) and the area within the district. While personal watercraft constitute fewer than 1 percent of the motorboats in the Florida District and 4 percent in the Mississippi District, they typically operate for much longer periods of time than other motorboats.

17. One commenter stated that the analysis represents an outdated look at potential emissions from an overstated PWC population of conventional two-stroke engines, and underestimated the accelerating changeover to four-stroke and newer two-stroke engines. The net effect is that the analysis overestimates potential PWC hydrocarbon emissions, including benzene and Polycyclic Aromatic Hydrocarbons (PAHs), to the water. In addition, the water quality analysis uses assumptions that result in overestimation of potential PWC hydrocarbon emission to the water. For example, the analysis states that benzo(a)pyrene concentrations in gasoline can be “up to 2.8 mg/kg.”

NPS Response: The estimates of personal watercraft use and emissions are based on the best information available at the time of preparation of the EA and are meant to be conservative (i.e., protective of the environment). By using conservative input assumptions in estimating impact to water quality, the probability of underestimating impacts is minimized.

The evaporation rate for benzene—half-life of approximately 5 hours at 25 °C—is based on information presented by the United States Environmental Protection Agency (USEPA) and Verschuren (see EA). Because impacts to water quality were determined to be negligible before any discussion or application of this evaporation rate, it was not discussed in the impact assessments of the alternatives.

As stated in Appendix A of the EA, the concentration of benzo(a)pyrene can be up to 2.8 mg/kg (or 2.07 mg/L). Because this concentration could be found in the gasoline used in Gulf Islands, this measure was used to be protective of the environment. It is not an unrealistic assumption.

Annual sales of personal watercraft (200,000 units) are mentioned on page 7 of the EA. However, the text directs the reader to Table 1, which shows that ownership declined after 1995. The discussion of national trends is not germane to the estimate of PWC use in the seashore since the numbers of personal watercraft and hours of use are based on observations by park staff (see page 109 of the EA).

In summary, if changes in evaporation rates, concentrations of gasoline constituents, sales of personal watercraft, and rates of replacement of older personal watercraft were made, as suggested, the conclusions of negligible impacts from personal watercraft would not change. However, these conclusions would no longer be considered as conservative (protective of the environment) and could be challenged by other parties.

18. One commenter questioned the assertion that PWC will be responsible for 50 percent of the cumulative boating hours, since PWC emissions are declining at a faster rate than the NPS and the USEPA presume.

NPS Response: Risk estimates for personal watercraft and other motorboats have been revised to more correctly reflect impacts to water quality. Impacts to water quality from PWC use in both districts and in both years evaluated (2002 and 2012) are still negligible despite these recalculations.

Emission rates for personal watercraft were taken from data presented in NPS, California Air Resources Board (CARB), and Bluewater Network (see page 107 of the EA), and the rate of decrease taken from data presented by the USEPA in 1996 and 1997. These rates may be higher than more recent estimates, but they are conservative and are meant to be protective of the environment. Even with these conservative emission rates, impacts to water quality from personal watercraft are expected to be negligible.

The percentage of contributions from personal watercraft may appear disproportionate to the number of PWC versus other motorboats, but personal watercraft are typically operated for longer periods of time than other motorboats in both districts of the park.

Projections of PWC emissions in 2012 indicate that they will increase from 2002 due to the increased number of personal watercraft (for example, see revised Tables 30 and 32 in the Errata). As seen in Table 23 of the EA, the numbers of personal watercraft will increase at an annual rate of 9.6 percent, or a 250 percent increase over 10 years. In contrast, other motorboats are expected to increase at a slower annual rate of 3.7 percent, or a 144 percent increase over 10 years. Consequently, the proportion of emissions from personal watercraft is expected to increase from 2002 to 2012—personal watercraft would contribute up to 29 percent of the total pollutants to water in 2002 and up to 42 percent of the total pollutants in 2012, depending on the district (Florida or Mississippi) and the area within the district. Personal watercraft would not be responsible for a decreasing percentage of emissions as posited in the comment.

19. One commenter stated that studies have shown that two-cycle engine emissions did not have a huge effect on the marine environment because any fuel that mixes with water swiftly evaporated. The amount of unburned fuel that does pass through two-cycle engines is in a gaseous state and is superheated by the combustion process.

NPS Response: Without a citation in the comment, it is difficult to examine these assertions. However, the California Air Resources Board (CARB 1999) states that a PWC operated for 7 hours emits more smog-forming emissions than a 1998 passenger car driven 100,000 miles (161,000 km). This CARB emission estimate is roughly one-fifth the rate in the comment. Other estimates of fuel emission rates range between 1.5 and 4.5 gallons/hour (National Park Service 1999; Personal Watercraft Illustrated In : Bluewater Network 2001). For the purpose of estimating impacts to water quality and air quality in the Gulf Islands EA, it was assumed that PWC with two-cycle engines discharge fuel at a rate of 3 gallons/hour. Regarding evaporation of fuel, in the EA (page 111), the evaporation rate of benzene (half life of approximately 5 hours; USEPA 2001) is factored into the water quality impact assessment.

20. One commenter stated that the analysis does not properly account for the rapid engine conversion that is occurring due to the phase-in of cleaner running engine technologies.

NPS Response: A conservative approach was used in the analysis, since the number of PWC already converted to four-stroke engines is not known. In addition, the USEPA model takes into account the reduction in emissions over time. Even with the conservative approach, the analysis for alternative B presented in the EA indicates that PWC use at Gulf Islands National Seashore would result in negligible impacts to air quality.

21. One commenter stated that continued PWC operation will contribute major, not moderate, damage to the area's air quality, and that over the next ten years, the NPS estimates that eliminating PWC will reduce carbon monoxide (CO) emissions by more than 50 tons.

NPS Response: The definition of major air quality impact on page 130 of the EA is:

• Emissions levels would be greater than or equal to 250 tons/year for any pollutant, and

• The first highest 3-year maximum for each pollutant is greater than NAAQS [National Ambient Air Quality Standards].

The annual emissions of CO for personal watercraft and other motorized boats in the Florida District (Table 42 of the EA) would be 563.6 tons in 2002 and 908.5 tons in 2012. The cumulative emissions are correctly termed “moderate” because, as described on page 133 of the EA, “* * * moderate [adverse impacts] for CO and hydrocarbons (HC) based on the quantities of emissions and maximum pollutant levels that are less than the NAAQS.” NAAQS (concentrations) are defined as 9 parts per million (ppm) over 8 hours and 35 ppm over 1 hour. Of the cumulative emissions, personal watercraft would contribute only 9.0 tons in 2002 and 17.9 tons in 2012 (Table 40 of the EA). These PWC emissions are considerably lower than 50 tons/year and are, therefore, negligible. The comment is correct in that eliminating personal watercraft would improve air quality at the seashore (Florida and Mississippi districts) by reducing CO emissions by an estimated 56.5 tons/year. However, impacts would be moderate.

22. One commenter expressed concern that PWC emissions were declining faster than forecasted by the USEPA. As the Sierra Report documents, in 2002, hydrocarbons (HC) plus nitrogen oxides (NO X ) emissions from the existing fleet of PWC were already 23% lower than they were before the USEPA regulations became effective, and will achieve reductions greater than 80% by 2012.

NPS Response: The U.S. Environmental Protection Agency's (USEPA) data incorporated into the 1996 Spark Ignition Marine Engine rule were used as the basis for the assessment of air quality, and not the Sierra Research data. It is agreed that the Sierra Research data show a greater rate of emissions reductions than the assumptions in the 1996 Rule and in the USEPA's NONROAD Model, which was used to estimate emissions. However, the level of detail included in the Sierra Research report was not carried into the EA for reasons of consistency and conformance with the model predictions. Most states use the USEPA's NONROAD Model for estimating emissions from a broad array of mobile sources. To provide consistency with state programs and with the methods of analysis used for other similar NPS assessments, the NPS has elected not to base its analysis on focused research such as the Sierra Report for assessing PWC impacts.

It is agreed that the Sierra Research report provides data on “worst case” scenarios. However worst case or short-term scenarios were not analyzed for air quality impacts in this or other NPS PWC EAs.

It is also agreed that the relative quantity of HC plus NO X are a very small proportion of the county-based emissions, and that this proportion will continue to be reduced over time. The EA takes this into consideration in the analysis.

California Air Resources Board (CARB) certified PWCs may be used; however, the degree of certainty of overall use of this engine type nationwide is not well established. For consistency and conformity in approach, the NPS has elected to rely on the assumptions in the 1996 S.I. Engine Rule, which are consistent with the widely used NONROAD emissions estimation model. The outcome is that estimated emissions from combusted fuel may be in the conservative range, if compared to actual emissions.

23. One commenter stated that improved engine technology would actually cause an increase in NO X emissions, a precursor for ground level ozone. Ozone has been a problem for Pensacola in the past, although it is in attainment at this time.

NPS Response: The comment is correct in its assertion that “improved engines” would result in an increase in NO X emissions. According to data presented in CARB (2001), the carbureted two-stroke engines in personal watercraft and outboard motors had lower NO X emissions (12-20 grams/test) than either the two-stroke direct injection engines (102-128 grams/test) or the four-stroke engines (230-4226 grams/test). The impact thresholds described on page 130 of the EA, including “impairment,” are based on measurable parameters, whereas a standard of degradation, as suggested, could not be pragmatically applied in the impact analyses.

24. One commenter stated that the Lake Mead National Recreation Area's proposed PWC rule stated that PAH concentrations derived from modeling conducted by Sierra Research were orders of magnitude below the permissible exposure limits established by the Occupational Safety and Health Administration (OSHA) and the National Institute for Occupational Safety and Health (NIOSH). A proper PAH analysis refutes claims by PWC opponents that PAH emissions from PWC operating in the Gulf Islands National Seashore will endanger human health.

NPS Response: The criteria for analysis of impacts from PWC to human health are based on the NAAQSs for criteria pollutants, as established by the USEPA under the Clean Air Act (CAA), and on criteria pollutant annual emission levels. This methodology was selected to assess air quality impacts for all NPS PWC EAs to promote regional and national consistency, and identify areas of potential ambient standard exceedances. PAHs are not assessed specifically as they are not a criteria pollutant. However, they are indirectly included as a subset of total hydrocarbons (THC), which are assessed because they are the focus of the USEPA's emissions standards directed at manufacturers of spark ignition marine gasoline engines (see October 4, 1996; 61 FR 52088). Neither peak exposure levels nor NIOSH nor OSHA standards are included as criteria for analyzing air quality related impacts except where short-term exposure is included in a NAAQS. The NPS agrees with the technical statement and summation that adverse health risk to the public would be unlikely from exposure.

As stated above, the methodology for assessing air quality impacts was based on a combination of annual emission levels and the NAAQSs, which are aimed at protection of the public. OSHA and NIOSH standards are intended primarily for workers and others exposed to airborne chemicals for specific time periods. The OSHA and NIOSH standards are not as suitable for application in the context of local and regional analysis of a park or recreational area as are the ambient standards, nor are they intended to protect the general public from exposure to pollutants in ambient air.

The “Kado Study” (Kado et al. 2000) presented the outboard engine air quality portion of a larger study described in Outboard Engine and Personal Watercraft Emissions to Air and Water: A Laboratory Study (CARB 2001). In the CARB report, results from both outboards and personal watercraft (two-stroke and four-stroke) were reported. The general pattern of emissions to air and water shown in CARB (2001) was two-stroke carbureted outboards and personal watercraft having the highest emissions, and four-stroke outboard and personal watercraft having the lowest emissions. The only substantive exception to this pattern was in NO X emissions to air—two-stroke carbureted outboards and personal watercraft had the lowest NO X emissions, while the four-stroke outboard had the highest emissions. Therefore, the pattern of emissions for outboards is generally applicable to personal watercraft and applicable to outboards directly under the cumulative impacts evaluations.

25. One commenter stated that continued PWC use in the Gulf Islands National Seashore will not result in sound emissions that exceed the applicable Federal or State noise abatement standards, and technological innovations by the PWC companies will continue to result in substantial sound reductions.

NPS Response: The NPS concurs that on-going and future improvements in engine technology and design will likely further reduce the noise emitted from PWC. However, based on location and time, ambient noise levels at the national seashore can range from negligible to moderate, and improved technology resulting in a reduction of noise emitted from PWC would not significantly change impact thresholds.

26. One commenter cited noise testing conducted at Glen Canyon National Recreation Area (NRA) that indicated the maximum noise levels for PWC were actually lower than the maximum noise levels for other motorized vessels. In particular, the levels for PWC at 25 meters (82 feet) were approximately 68 to 76 A-weighted decibels, whereas the levels for other motorized vessels at 82 feet were approximately 64 to 86 A-weighted decibels.

NPS Response: The 2001 noise study at Glen Canyon National Recreation Area is discussed on pages 143 and 144 of the EA, and the correct numbers are cited. Specific noise studies were conducted in three areas of the park as part of this assessment. The noise of two or more PWC operating at the same time (when one unit produces 76 dB), and at a distance of 25 meters from the source, was shown to be 79 dB. Ambient sound levels at Gulf Islands National Seashore vary due to the wide range of land cover types and visitor and other activities within and near the national seashore. In addition to intensity, other aspects of PWC noise were assessed, including changes in pitch. In most locations, except in high use areas, natural sounds would prevail and motorized noise would be very infrequent or absent.

27. One commenter stated that the EA does not include any noise complaint data, and relies on anecdotal accounts. Gulf Islands is one of the most heavily used parks in the National Park System and the park's soundscapes are already impacted by a variety of “human-caused sounds.” The park experiences high ambient noise levels because of its proximity to a major airport, numerous military bases, and high-traffic commercial waterways. Furthermore, the 15dBA increase is meaningless because it lacks context. Any reference to decibel increases must indicate the distance from which the sound was measured and the method by which the measurement was taken.

NPS Response: The EA states that the level of sound impact associated with PWC use varies based on location, time of day, and season. The EA also states that sound impacts associated with PWC use would be most prevalent in quieter areas, such as coves, river corridors, and backwater areas. Sound impacts associated with PWC use in areas where ambient sound levels are high or where nearshore operation is restricted would be expected to be negligible, while the higher levels of impact (minor to moderate) would be expected to occur in areas where, or during times when, ambient noise levels are lower.

The reference to the 15dBA noise level increase associated with PWC leaving the water was taken from a study conducted by Komanoff and Shaw (2000) and is referenced in the EA.

The scope of the EA did not include the conduct of site-specific studies or sound testing studies for PWC use at the Gulf Islands National Seashore. Analysis of potential impacts of PWC use relating to sound was based on best available data, input from park staff, and the results of analysis using that data.

28. One commenter stated that there is no evidence that PWC noise adversely affects aquatic fauna or animals. PWC typically exhaust above the water or at the air/water transition area; therefore, most PWC sound is transmitted through the air and not the water.

NPS Response: Typically PWC exhaust below or at the air/water transition areas, not above the water. Sound transmitted through the water is not expected to have more than negligible adverse impacts on fish (page 111 of the EA), and the EA does not state that PWC noise adversely affects underwater fauna.

29. One commenter suggested that PWC engine noise could adversely affect the experience of hikers and other recreational users along the Florida National Scenic Trail, which follows the Gulf of Mexico surf-line nearly the entire length of Gulf Islands National Seashore. Section 7c of the National Trails System Act states “the use of motorized vehicles by the general public along any national scenic trail shall be prohibited.” Allowing PWC use along the Gulf of Mexico surf line where the trail is located appears to violate the spirit of the National Trails System Act and the National Park Service's certification agreement with the Florida Trail Association and the USDA Forest Service.

NPS Response: Under this final rule, a flat wake zone will be established 300 yards from all park shorelines at the low-water mark, with more stringent restrictions at West Ship Island Pier and around designated wilderness boundaries. This restriction should be sufficient to minimize the disturbance to land-based recreational users from noise, including trail users.

30. One commenter stated that natural forces, such as waves and wind, have a greater impact on vegetation than PWC use.

NPS Response: The EA was not conducted to determine if personal watercraft caused more environmental damage to park resources than other boats, other shoreline uses, or natural forces, but rather to determine if PWC use has an impact on the resources. Access of PWC into emergent marsh habitats, beaching PWC on vegetated shorelines for access, and nearshore operation of PWC has potential to result in damage to vegetation.

31. One commenter is concerned that if PWC were allowed unrestricted access, they could cause severe damage to seagrasses, which take years to recover.

NPS Response: The EA found that access of PWC into emergent marsh habitats, beaching of PWC on vegetated shorelines for access, and nearshore operation of PWC has potential to result in damage to vegetation. Specifically, under alternative A the EA found that reinstating PWC use within the national seashore would have adverse impacts to seagrass habitats in both the Florida and Mississippi districts that would be direct and indirect, minor to moderate, and short- and long-term, because shallow water habitats in the park are the preferred areas for PWC use, particularly in the Perdido Key and Mississippi Sound areas. However, alternative B found that PWC use would have impacts to seagrass habitats that are direct and indirect, minor, and short- and long-term. The flat wake zoning will restrict PWC impacts to about one-half of the potential seagrass habitat in the Florida District and one-quarter of the potential seagrass habitat in the Mississippi District. Therefore, alternative B, as implemented in this final rule, will have fewer adverse impacts to submerged aquatic vegetation than alternative A.

32. The U.S. Fish and Wildlife Service (USFWS) concurs with the determination of “not likely to adversely affect” any of the threatened or endangered species found within the national seashore.

NPS Response: Comment noted.

33. The National Marine Fisheries Service (NMFS) stated that PWC can enter and maneuver in shallow water areas at high speeds that can result in erosion of shorelines supporting emergent marshes and a disturbance to benthic habitats including submerged aquatic vegetation (SAV) and shallow water zones utilized by a wide diversity of fish, invertebrates, and aquatic mammals. Essential Fish Habitat (EFH) for various species has been designated within the park.

NMFS further stated that in addition to being EFH for various species, the project area provides nursery, foraging, and refuge habitat for other commercially and recreationally important fish and shellfish. Although alternative B, if strictly enforced, would provide significant habitat protection, the NMFS is concerned about the need to protect SAV habitat from PWC outside of the flat wake zones as well. Adequately educating the public about these flat wake zones, marking them appropriately, enforcing the conditions/restrictions, and monitoring the protective measure will be difficult and require an extensive effort by Gulf Islands National Seashore. Details addressing these issues should be included in the EA. Because no entry zones are easier to manage and enforce, this management tool should be given greater consideration, especially for areas of particular concern.

NPS Response: Gulf Islands National Seashore has created a subaquatic vegetation management plan, which outlines how the park proposes to manage PWC use with regard to the four components in the 1995 Florida Marine Research Institute seagrass scarring report. The four-point approach to management options includes education, channel marking, enforcement, and limited-monitoring zones, which will reduce impacts from PWC to EFH and associated species within the park.

The education component includes enhancing PWC user and boater education through interpretive talks, onsite bulletins, pamphlets, and brochures made available to PWC operators at marinas and boater registration locations, as well as to visitors who rent PWC. The park will also explore the feasibility of installing informational signs at marinas and boat launching sites to alert PWC operators to applicable flat wake zones. All media will clearly delineate and emphasize open and flat wake zones. Park staff will also attend boat shows within the greater Pensacola-Gulf Breeze, Florida, area to distribute boater education materials to interested PWC operators.

Gulf Islands National Seashore does not intend to install any new channel markers or aids to navigation within park waters. Park managers determined that channel markers would impose substantial visual intrusions to the view shed surrounding the islands and shorelines. It would also be cost prohibitive to acquire and maintain the number of signs necessary to delineate the 108 miles of coastal marine areas within the park. If monitoring results indicate a large increase in the number of scars occurring due to PWC use, the park will implement more restrictive closures through signage or other measures.

Park-commissioned law enforcement rangers will increase their water based patrols and vigilance in proximity to all flat wake zones. The rangers have full delegated authority to enforce all applicable laws within the jurisdictional boundaries of the park, including issuing verbal and written warnings and penalty citations at their discretion. NPS also has the wherewithal through the Park System Resource Protection Recovery Act to pursue legal recourse and secure damage recovery funds from violators who may cause significant resource injuries requiring restoration.

Regarding limited-monitoring zones, park resource managers will compare aerial photography taken before and after the implementation of special regulations permitting PWC use to quantify seagrass injuries and associated scarring. Biologists will also establish random underwater sample plots within all park seagrass beds in the PWC flat wake zones to determine if there is any increase in scarring attributed to PWC use and to characterize observed injuries to seagrass beds. If resource managers observe a proportional increase to the amount of seagrass scarring after PWC is permitted, these areas will be identified for subsequent increased enforcement and/or closure. Surveys will also be conducted on an annual basis to determine the familiarity and understanding of PWC operators' knowledge of PWC restrictions.

34. One commenter stated that the analysis lacked site-specific data for impacts to wildlife, fish, and threatened and endangered species at Gulf Islands.

NPS Response: The scope of the EA did not include the conduct of site-specific studies regarding potential effects of PWC use on wildlife species at Gulf Islands National Seashore. Analysis of potential impacts of PWC use on wildlife at the national seashore was based on best available data, input from park staff, and the results of analysis using that data. A list of federal and state protected species is provided in Table 10 of the EA.

35. One commenter stated that PWC use and human activities associated with their use may not be any more disturbing to wildlife species than any other type of motorized or non-motorized watercraft. The commenter cites research by Dr. Rodgers, of the Florida Fish and Wildlife Conservation Commission, whose studies have shown that PWC are no more likely to disturb wildlife than any other form of human interaction. PWC posed less of a disturbance than other vessel types. Dr. Rodgers' research clearly shows that there is no reason to differentiate PWC from motorized boating based on claims on wildlife disturbance.

NPS Response: We agree that some research indicates that personal watercraft are no more apt to disturb wildlife than are small outboard motorboats; however, disturbance from both PWC and outboard motorboats does occur. Dr. Rodgers recommends that buffer zones be established for all watercraft, creating minimum distances between boats (personal watercraft and outboard motorboats) and nesting and foraging waterbirds. Several shoreline restrictions related to wildlife and wildlife habitat are included under the final rule as an added precaution. Impacts to wildlife and wildlife habitat under all the alternatives were judged to be negligible to moderate from all visitor activities.

In addition, the EA was not conducted to determine if personal watercraft caused more environmental damage to park resources than other boats, but rather to determine if personal watercraft use was consistent with the national seashore's enabling legislation and management goals and objectives. The alternatives identified and the determination of their consequences were based upon the best information available.

36. One commenter pointed out discrepancies for wildlife impacts between the EA and the 2001 Determination. Specifically, the EA states that nearshore flat wake zones will minimize wildlife impacts, even though no new surveys have been conducted to support this conclusion.

NPS Response: The EA does not imply that all potential impacts associated with nearshore use of PWC would be minimized as a result of implementing a flat wake zone. Implementation of a flat wake zone would reduce potential impacts associated with high speed use in nearshore areas as compared to use without the speed restriction. The scope of the EA did not include the conduct of surveys to determine potential effects of the current PWC ban on wildlife use or the effects of PWC use on visitor experience at Gulf Islands National Seashore. Analysis of potential impacts of PWC use or the ban of their use at the national seashore was based on best available data, input from park staff, and the results of analysis using that data.

37. One commenter stated that the EA did not adequately investigate the impact of PWC use on marine mammals or the impact of the PWC ban on biological migration patterns.

NPS Response: The scope of the EA did not include the conduct of surveys to determine potential effects of the current PWC ban on biological use patterns or marine mammals in Gulf Islands National Seashore. Analysis of potential impacts of PWC use on wildlife at the national seashore was based on best available data, input from park staff, and the results of analysis using that data.

38. One commenter reminded NPS that consultation with the USFWS and National Marine Fisheries Service (NMFS) must be completed before any regulations are finalized. Consultation with the NMFS is required under section 305 of the Magnuson-Stevens Act. In addition, either “small take permits” or a waiver is required under the Marine Mammal Protection Act.

NPS Response: NPS consulted with the Fish and Wildlife Service and the National Marine Fisheries Service as required under section 7 of the Endangered Species Act. Concurrence with the EA's determinations was received from the Fish and Wildlife Service on May 10, 2005, and from the National Marine Fisheries Service on November 4, 2005. NPS consulted with the National Marine Fisheries Service Habitat Conservation Division as required under section 305 of the Magnuson-Stevens Act. Gulf Islands National Seashore developed a subaquatic vegetation management plan, which outlines how the park proposes to manage PWC use with regard to the four components in the 1995 Florida Marine Research Institute seagrass scarring report. This plan is described further above. NPS also consulted with the National Marine Fisheries Service Office of Protected Resources regarding the Marine Mammal Protect Act. In a letter dated November 15, 2005, NMFS stated that an authorization for incidental taking under section 101(a)(5) of the Marine Mammal Protect Act is not necessary.

39. One commenter stated that demographic and usage information demonstrates that today's PWC owner typically uses PWC for family-oriented outings, and that they are not reckless “stunt” operators.

NPS Response: NPS agrees that some PWC operators are more mature and are not reckless with their machines, and that many trips are family-oriented. However, PWC use does vary, and some operators still use the machines for “thrill,” including stunts, wake jumping, and other more risky exercises. Some users can still create disturbances or safety concerns, especially if children are operating the vessel. Under alternative B, as implemented by this final rule, NPS will provide additional enforcement and education to minimize the possibility of any serious injuries.

40. One commenter stated that the accident data used in the analysis was outdated and incorrect because PWC accidents are reported more often than other boating accidents.

NPS Response: The mediating factors described in the comment are recognized. However, these factors are unlikely to fully explain the large difference in percentages (personal watercraft are only 7.5% of registered vessels, yet they are involved in 36% of reported accidents). In other words, personal watercraft are 5 times more likely to have a reportable accident than are other boats. Despite these national boating accident statistics, impacts of PWC use and visitor conflicts are judged to be negligible relative to swimmers and minor relative to other motorboats at the national seashore.

Incidents involving watercraft of all types, including personal watercraft, are reported to and logged by National Park Service staff. A very small proportion of incidents in the national seashore are estimated to go unreported.

41. The U.S. Coast Guard requested that NPS work cooperatively with the Coast Guard, the State of Florida, and other agencies in the development of any changes to current regulations concerning boating in Gulf Islands National Seashore. The Coast Guard strives to ensure uniformity and effectiveness of recreational boating laws. Uniform regulations make it both easier for compliance and enforcement.

NPS Response: The park has solicited input from other government agencies throughout the process and wants to work cooperatively with them.

42. One commenter stated that the EA does not cite any park-specific accident data, and instead relies on Florida State and county data. No Mississippi accident data is included. There is substantial empirical support for concluding that PWC use does not create disproportionate safety concerns. An analysis of accident data at Fire Island National Seashore suggests that the percentage of boating accidents in the park involving PWC is actually less than might be expected based on the level of usage.

NPS Response: Although no boating accident data is available for the park, page 97 of the EA discusses boating violation citations in both districts of the park. From 1997 to 2002, PWC-related violation citations accounted for 36 percent to 68 percent of all boating violation citations within the park. Although the number of citations has generally decreased since 1997, park staff still observed PWC being operated carelessly and recklessly in congested boating and swimming areas and among anchored boats, as stated on page 97 of the EA. Many of these violations went unreported since they were observed from the beach and enforcement was not possible. The accident data analysis conducted at Fire Island National Seashore is not necessarily applicable to Gulf Islands National Seashore.

Furthermore, as noted on page 200 of the EA, the National Transportation Safety Board reported in 1996 that personal watercraft represented 7.5 percent of State-registered recreational boats but accounted for 36 percent of recreational boating accidents. In the same year, PWC operators accounted for more than 41 percent of people injured in boating accidents. PWC operators accounted for approximately 85 percent of the persons injured in accidents studied in 1997.

43. One commenter stated that the NPS supports the preferred alternative by assuming that PWC operation will not adversely impact public safety and that a majority of PWC users operate their craft in “a lawful manner.” However, in 2001 the NPS reported that PWC use threatened the safety of visitors and that PWC are often operated in a “reckless” manner.

NPS Response: NPS’ analysis recognizes that there is some potential danger in PWC operation. However, not all PWC operation is conducted in a reckless manner, and NPS cannot regulate activities based on the type of injuries likely to be sustained if the public wishes to participate in an activity that is supported by the park's enabling legislation. However, NPS is providing safe operating instructions, use restrictions, and enforcement to minimize the possibility of any serious injuries. Alternative B, as implemented in this final rule, will provide more enforcement of PWC restrictions and education for PWC users.

44. One commenter stated that the analysis refers to a potential concern that the ability of PWC operators to access remote areas of the park unit might make certain cultural, archeological and ethnographic sites vulnerable to looting or vandalism. However, there is no indication of any instances where these problems have occurred. Nor is there any reason to believe that PWC users are any more likely to pose these concerns than canoeists, kayakers, hikers, or others who might access these same areas.

NPS Response: The EA was focused on the analysis of impacts from PWC use. PWC can make it easier to reach some remote upstream areas, compared to hiking to these areas, but the NPS agrees that the type of impacts to cultural resources from any users of remote areas of the park would be similar if visitors can reach these areas.

45. The Mississippi State Historic Preservation Office stated that is has no issues of concern or reservations with the PWC EA. The Florida State Historic Preservation Office stated that alternative B is the preferred alternative, if the no action alternative cannot be chosen.

NPS Response: Comments noted.

46. One commenter stated that the EA ignores the positive socioeconomic effects of banning PWCs, and that a recent study found that non-PWC users preferentially seek out areas without PWCs and thus banning PWCs would likely be beneficial to the local economy.

NPS Response: The number of recreational visits at Gulf Islands National Seashore in calendar year 2001 was 389,499, a 0.8 percent reduction from 2000. No data were available for more recent years, including those since the park was closed to PWC use, at the time the EA was written. A variety of factors influence visitor use numbers at national parks.

47. Several commenters, including two U.S. Congressmen, stated that access by PWC to national parks is vital to local economies, and PWC enthusiasts support small businesses providing services to these riders. These businesses will be adversely affected if PWC operators who travel to the park cannot recreate on their PWC. Banning PWC will have a negative economic impact on the State of Mississippi. Tourism will probably suffer if visitors cannot ride their PWC freely within the park.

NPS Response: The EA analysis evaluated the socioeconomic impact of each alternative. NPS chose alternative B, Reinstate PWC Use Under a Special NPS Regulation with Additional Management Prescriptions, as the preferred alternative. NPS anticipates that under alternative B, as implemented by this final rule, consumer and producer surplus (i.e., benefits) for PWC-related goods and services is expected to increase as a result of lifting the ban on PWC use at Gulf Islands National Seashore. Overall, alternative B is considered to provide the greatest level of net benefits.

48. One commenter stated that the EA does not investigate the economic impact that lifting the PWC ban would have upon businesses that are dependent upon the conservation of wildlife and their habitat.

NPS Response: Page 214 of the EA states that consumer surplus is expected to decrease slightly for visitors other than PWC users as a result of decreased solitude, decreased water quality, and an increase in the risk of accidents involving PWC. However, the flat wake zone requirement 300 yards from all shorelines will reduce these impacts.

49. Several commenters stated that the EA fails to provide a true accounting of the costs and benefits of the alternatives, and that the socioeconomic analysis is skewed to support a decision to authorize continued PWC operation. The EA does not include a detailed description of the costs of continued PWC operation upon other resources, such as other visitors' experiences, wildlife, and seagrass beds. The NPS admits these “costs could not be quantified.” This calls into question the accuracy and fairness of the economic analysis.

NPS Response: When conducting the socioeconomic analysis, six major affected groups were identified. Two of these groups were “other visitors or potential visitors who may have a different experience at the national seashore if personal watercraft continue to be banned or restricted (canoeists, anglers, swimmers, hikers, boaters, and other visitors),” and “producers of services to other types of summer visitors (e.g., canoe rentals or powerboat rentals) who may experience a change in their welfare.”

NPS agrees that the costs of continued PWC operation upon other resources, such as other visitors' experiences, wildlife, and seagrass beds, could not be quantified because of a lack of available data. The scope of the EA did not include gathering these types of data. The EA states that if all costs could be incorporated, the indicated net benefits for each alternative would be lower. Those costs would likely be greater for alternative A than for alternative B, and alternative B would likely have the greatest level of net benefits. It is unlikely that these conclusions would change even if better data were available.

50. Several commenters stated that restricting PWC to flat wake zones would only work with increased education and law enforcement. Without an overall budget increase, any increased law enforcement and education would take resources away from other operations, such as resource management.

NPS Response: Gulf Island National Seashore is fully aware that current enforcement activities would not be successful under the preferred alternative and that this new regulation will require changes and reallocations of assets and resources, with increased education and enforcement.

Additional boats and mooring facilities have recently been acquired, increased training of marine enforcement staff has occurred, and initial efforts at educating the boating public have occurred. The majority of seashore users are law-abiding and sensitive to the special values of seashore waters and lands. An active education program backed by a reasonable enforcement effort should, within a few seasons, educate PWC users to the requirements of the new regulation. After an initial period of adjustment to the new regulations, the small number of PWC users who encounter seashore waters should be knowledgeable enough to conduct themselves within the law, and the initial need for focused attention on PWC operators will diminish. Additional water presence and education are proven methods of protecting resources for the future enjoyment of all visitors, with the end result of enhancing the visitor experience.

51. The Florida Fish and Wildlife Conservation Commission stated that it does not support the flat wake zone for PWC for several reasons. Expectation for enforcement will be unrealistic without marking of the areas with buoys. The application of flat wake restrictions for PWC only would create unnecessary boating safety and navigational hazards for boaters, and will be worse in narrow areas along the Intracoastal Waterway. The flat wake zone would result in a significant reduction in the amount of riding area for PWC operators, potentially resulting in an increased likelihood of vessel collisions.

NPS Response: The national seashore has over 100 miles of shoreline. Placement of buoys throughout the entire park is not feasible due to cost and maintenance, and would be confusing to most operators. The park believes that through education and enforcement, such delineation will not be necessary. Where it is shown that education or enforcement do not result in compliance, buoys could be placed as a temporary measure. The limits of the flat wake zones will offer an envelope large enough to allow the prudent operator and enforcement officer to recognize when gross violation may be occurring.

The Intracoastal Waterway is outside of the park boundary, so none of the flat wake zones apply to this area. None of the flat wake zones are so narrow that PWC will be forced into the Intracoastal Waterway, or forced outside of park boundaries.

The final rule will provide access to all areas of the park that are open to other watercraft, so no riders will be forced to operate outside park boundaries in unprotected waters. In addition, PWC use will not be eliminated; the final rule simply requires that PWC operate in designated areas at a flat wake speed.

Though these rules were developed to specifically regulate PWC use, the park realizes and appreciates that an appearance of discrimination exists between PWC and other vessels and that there is a need for rulemaking to regulate vessels other than PWC in similar ways we are managing PWC. The park is committed to working toward rulemaking that will correct the differences.

52. Several commenters, including two U.S. Congressmen, stated that the public has not had sufficient opportunity to be involved in the rulemaking process, and that additional public scoping meetings, hearings, and other opportunities to comment are necessary.

NPS Response: During the development of the PWC Determination, which was published in 2002, the park received over 1,000 written individual comments. Comments indicated that approximately one-third of the commenters were in favor of the PWC prohibition, and two-thirds were opposed on the basis of discrimination against personal watercraft.

The EA was written to evaluate a range of alternatives and strategies for managing PWC use at Gulf Islands National Seashore to ensure the protection of park resources and values while offering recreational opportunities as provided for in the national seashore's enabling legislation, purpose, mission, and goals. As part of the EA process, two public scoping open house meetings were held (on January 28, 2003, in Gulf Breeze, Florida, and January 30, 2003, in Ocean Springs, Mississippi). Public comments were collected for 30 days after the meetings, from January 28 to February 28, 2003, and were based on preliminary alternatives that were presented at the open house meetings. The preliminary alternatives were revised to reflect public concerns and comments. Alternative B, Reinstate PWC Use with Additional Management Prescriptions, was chosen as the preferred alternative as a result of the EA analysis.

53. One commenter stated that the proposed rule makes no mention of Hurricane Ivan, which struck the area in the fall of 2004, and the environmental implications of this event on national seashore resources and values. The cumulative impact must be taken into account in evaluating the environmental impact of permitting PWC use in these areas.

NPS Response: No mention was made of Hurricane Ivan because it had not occurred when the EA was prepared. All storms have the potential to impact park resources and cannot be predicted.

Based on the preceding comments and responses, the NPS has made no changes to the proposed rule language with regard to PWC operations.

Alternative C, the no-action alternative, represents the baseline of this analysis. Under that alternative, all PWC use would remain prohibited in the park. Alternative A would permit PWC use as managed in the park prior to the ban and Alternative B would permit PWC use, but with additional restrictions compared with pre-ban management. All benefits and costs associated with these regulatory alternatives are measured relative to the baseline established by Alternative C. Therefore, there are no incremental benefits or costs associated with Alternative C.

The primary beneficiaries of Alternatives A and B would be the park visitors who use PWCs and the businesses that provide services to PWC users such as rental shops, restaurants, gas stations, and hotels. The present value of benefits to PWC users are estimated to range between $670,100 and $881,500 for these alternatives. The present value of benefits to businesses that provide services to PWC users for Alternatives A and B are estimated to range between $479,900 and $4,130,400. Additional beneficiaries include the individuals who use PWCs outside the park where PWC users that are displaced from the park may decide to ride if PWC use within the park were prohibited. These benefit estimates are presented in Table 1. The amortized values per year of these benefits over the ten-year timeframe are presented in Table 2.

The primary group that would incur costs under Alternatives A and B would be the park visitors who do not use PWCs and whose park experiences would be negatively affected by PWC use within the park. At Gulf Islands National Seashore, non-PWC uses include boating, canoeing, fishing, and hiking. Additionally, the public could incur costs associated with impacts to aesthetics, ecosystem protection, human health and safety, congestion, nonuse values, and enforcement. However, these costs could not be quantified because of a lack of available data. Nevertheless, the magnitude of costs associated with PWC use would likely be greatest under Alternative A, and lower for Alternative B due to increasingly stringent restrictions on PWC use.

Because the costs of Alternatives A and B could not be quantified, the net benefits associated with those alternatives (benefits minus costs) also could not be quantified. However, from an economic perspective, the selection of Alternative B as the preferred alternative was considered reasonable even though the quantified benefits are somewhat smaller than under Alternative A. That is because the costs associated with non-PWC use, aesthetics, ecosystem protection, human health and safety, congestion, and nonuse values would likely be greater under Alternative A than under Alternative B. Quantification of those costs could reasonably result in Alternative B having the greatest level of net benefits.

This document is not a significant rule and has not been reviewed by the Office of Management and Budget under Executive Order 12866.

(1) This rule will not have an effect of $100 million or more on the economy. It will not adversely affect in a material way the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities. The National Park Service has completed the report “Economic Analysis of Personal Watercraft Regulations in Gulf Islands National Seashore” (MACTEC Engineering, January 2004).

(2) This rule will not create a serious inconsistency or otherwise interfere with an action taken or planned by another agency. Actions taken under this rule will not interfere with other agencies or local government plans, policies or controls. This rule is an agency specific rule.

(3) This rule does not alter the budgetary effects of entitlements, grants, user fees, or loan programs or the rights or obligations of their recipients. This rule will have no effects on entitlements, grants, user fees, or loan programs or the rights or obligations of their recipients. No grants or other forms of monetary supplements are involved.

(4) This rule does not raise novel legal or policy issues. This rule is one of the special regulations being issued for managing PWC use in National Park Units. The National Park Service published general regulations (36 CFR 3.24) in March 2000, requiring individual park areas to adopt special regulations to authorize PWC use. The implementation of the requirement of the general regulation continues to generate interest and discussion from the public concerning the overall effect of authorizing PWC use and National Park Service policy and park management.

The Department of the Interior certifies that this rulemaking will not have a significant economic effect on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). This certification is based on a report entitled “Economic Analysis of Personal Watercraft Regulations in Gulf Islands National Seashore” (MACTEC Engineering, January 2004). Copies of this report are available at: http://www.nps.gov/guis/pphtml/documents.html.

This rule will not have a significant economic effect on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). The effect will be positive for businesses that provide services to PWC users such as rental shops, restaurants, gas stations, and hotels. The present value of benefits to businesses that provide services to PWC users are estimated at $4,130,400.

This rule does not impose an unfunded mandate on State, local, or tribal governments or the private sector of more than $100 million per year. The rule does not have a significant or unique effect on State, local or tribal governments or the private sector. This rule is an agency specific rule and does not impose any other requirements on other agencies, governments, or the private sector.

In accordance with Executive Order 12630, the rule does not have significant takings implications. A taking implication assessment is not required. No taking of personal property will occur as a result of this rule.

In accordance with Executive Order 13132, the rule does not have sufficient federalism implications to warrant the preparation of a Federalism Assessment. This final rule only affects use of NPS-administered lands and waters. It has no outside effects on other areas by allowing PWC use in specific areas of the park. See also number 5 in the responses to comments section of this preamble.

In accordance with Executive Order 12988, the Department has determined that this rule does not unduly burden the judicial system and meets the requirements of sections 3(a) and 3(b)(2) of the Order.

This regulation does not require an information collection from 10 or more parties and a submission under the Paperwork Reduction Act is not required. An OMB Form 83-I is not required.

The National Park Service has analyzed this rule in accordance with the criteria of the National Environmental Policy Act and has prepared an Environmental Assessment (EA). The EA was available for public review and comment from April 19, 2004 to May 18, 2004. A Finding of No Significant Impact (FONSI) was signed on January 25, 2006. Copies of the EA and FONSI may be downloaded at http://www.nps.gov/guis/pphtml/documents.html or obtained at park headquarters Monday through Friday, 8 a.m. to 4:30 p.m. Mail inquiries should be directed to park headquarters: Gulf Islands National Seashore, 1801 Gulf Breeze Parkway, Gulf Breeze, FL 32563.

In accordance with the President's memorandum of April 29, 1994, “Government to Government Relations with Native American Tribal Governments” (59 FR 22951) and 512 DM 2, we have evaluated potential effects on federally recognized Indian tribes and have determined that there are no potential effects.

This rule allows use of PWC in Gulf Islands National Seashore under specified conditions. Because current regulations do not allow use of PWC at all, this rule relieves a restriction on the public. For this reason, and because NPS wishes to allow the public to take advantage of the new rules as soon as possible, this final rule is effective upon publication in the Federal Register , as allowed by the Administrative Procedure Act at 5 U.S.C. 553(d)(1).

This is a summary of the Second Report and Order released on April 25, 2006. The complete text of the Second Report and Order including attachments and related Commission documents is available for public inspection and copying from 8 a.m. to 4:30 p.m. Monday through Thursday or from 8 a.m. to 11:30 a.m. on Friday at the FCC Reference Information Center, Portals II, 445 12th Street, SW., Room CY-A257, Washington, DC 20554. The Second Report and Order and related Commission documents may also be purchased from the Commission's duplicating contractor, Best Copy and Printing, Inc. (BCPI), Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC 20554, telephone 202-488-5300, facsimile 202-488-5563, or you may contact BCPI at its Web site: http://www.BCPIWEB.com . When ordering documents from BCPI please provide the appropriate FCC document number, for example, FCC 06-52. The Second Report and Order and related documents are also available on the Internet at the Commission's Web site: http://wireless.fcc.gov/auctions .

1. In the Second Report and Order ( Second R&O ), the Commission addresses its rules concerning the eligibility of applicants and licensees for designated entity benefits. In the Second R&O , the Commission modifies its rules in order to increase its ability to ensure that the recipients of designated entity benefits are limited to those entities and for those purposes Congress intended.

2. The Commission revises its general competitive bidding rules (Part 1 rules) governing benefits reserved for designated entities to include certain material relationships as factors in determining designated entity eligibility. Specifically, the Commission adopts rules to limit the award of designated entity benefits to any applicant or licensee that has impermissible material relationships or an attributable material relationship created by certain agreements with one or more other entities for the lease or resale of its spectrum capacity. These definitions of material relationships are necessary to strengthen the Commission's implementation of Congress's directives with regard to designated entities and to ensure that, in accordance with the intent of Congress, every recipient of the Commission's designated entity benefits is an entity that uses its licenses to directly provide facilities-based telecommunications services for the benefit of the public.

3. The Commission also adopts rule modifications to strengthen its unjust enrichment rules so as to better deter entities from attempting to circumvent the Commission's designated entity eligibility requirements and to recapture designated entity benefits when ineligible entities control designated entity licenses or exert impermissible influence over a designated entity. To ensure the Commission's continued ability to safeguard the award of designated entity benefits, the Commission provides clarification regarding how it will implement its rules concerning audits and refines its rules with respect to the reporting obligations of designated entities.

4. The rules the Commission adopts will apply to all determinations of eligibility for all designated entity benefits, including bidding credits and, as applicable, set-asides, and installment payments, unless excepted by the grandfathering provisions. These rules will be applied to any application filed to participate in auctions and to all long-form applications filed by winning bidders, as well as to all applications for an authorization, an assignment or transfer of control, a lease, or reports of events affecting a designated entity's ongoing eligibility, including impermissible material relationships or attributable material relationships, filed on or after release of the Second R&O . However, the rules will not apply to the upcoming auction of 800 MHz Air-Ground Radiotelephone Service licenses, scheduled to begin on May 10, 2006, nor to the Form 601 applications to be filed subsequent to the close of that auction by the winning bidders.

5. Throughout the history of the auctions program, the Commission has endeavored to carry out its Congressional directive to promote the involvement of designated entities in the provision of spectrum-based services. The challenge for the Commission in carrying out Congress's plan has always been to find a reasonable balance between the competing goals of, first, providing designated entities with reasonable flexibility in being able to obtain needed financing from investors and, second, ensuring that the rules effectively prevent entities ineligible for designated entity benefits from circumventing the intent of the rules by obtaining those benefits indirectly, through their investments in qualified businesses.

6. The Commission's primary method of promoting the participation of designated entities in competitive bidding has been to award bidding credits—percentage discounts on winning bid amounts—to small business applicants. The Commission also has utilized other incentives, such as installment payments and, in broadband Personal Communications Services, a license set-aside to encourage designated entities to participate in spectrum auctions and in the provision of service.

7. In the FNPRM , 71 FR 6992 (February 10, 2006), the Commission tentatively concluded that it should restrict the award of designated entity benefits to an otherwise qualified applicant where it has a material relationship with a large in-region incumbent wireless service provider. The Commission sought comment on how to define the specific elements of such restriction. Further, the Commission sought comment on whether such a restriction on the award of designated entity benefits should apply where a designated entity applicant has a material relationship with a large entity that has a significant interest in communication services, and whether the Commission should include in such a definition a broad category of communications-related businesses or instead exclude or include certain types of entities. In addition, the Commission sought comment on whether it should adopt unjust enrichment provisions that would require reimbursement of designated entity benefits in the event that a designated entity makes a change in its material relationships or makes any other changes that would result in the loss of or change in its eligibility subsequent to acquiring a license with a designated entity benefit. Finally, in the FNPRM , the Commission sought comment on changes to its auction application rules to facilitate the application of any rule modifications to upcoming auctions.

8. In order to define material relationship the FNPRM sought comment on the specific nature of the types of additional relationships that should trigger a restriction on the availability of designated entity benefits. The FNPRM also sought comment on whether restricting certain agreements as a material relationship would be too harsh or unnecessarily limit a designated entity applicant's ability to gain access to capital or industry expertise. Additionally, the FNPRM sought comment on whether there might be instances where the existence of either a material financial agreement or a material operational agreement might be appropriate and might not raise issues of undue influence. In this regard, the FNPRM asked whether the Commission should allow designated entity applicants to obtain a bidding credit or other benefits if they had only a material financial agreement or only a material operational agreement but not both, and what factors should the Commission consider in determining the types of relationships that might not adversely affect an applicant's designated entity eligibility. Finally, the Commission sought comment on whether a spectrum leasing arrangement should be defined as a material relationship, and whether it should consider any other arrangements for the purposes of such a definition.

9. In considering how to define material relationships the Commission seeks to balance the designated entity applicant's needs for flexibility to structure its business relationships against its statutory obligation to award these small business benefits only to entities intended by statute to be eligible. In the Commission's experience in administering the designated entity program over the last several years, it has witnessed a growing number of complex agreements between designated entities and those with whom they choose to enter into financial and operational relationships. Although some of these agreements may have contributed to the wireless industry becoming a thriving sector of the nation's economy, the relationships underpinning such contracts underscore the need for stricter regulatory parameters to ensure, as Congress intended, that: (1) Benefits are awarded to provide opportunities for designated entities to become robust independent facilities-based service providers with the ability to provide new and innovative services to the public; and (2) the Commission employs methods to prevent unjust enrichment.

10. In considering how to evaluate which specific relationships should trigger additional eligibility restrictions, the Commission concludes that certain agreements, by their very nature, are generally inconsistent with an applicant's or licensee's ability to achieve or maintain designated entity eligibility because they are inconsistent with Congress's legislative intent. In this regard, where an agreement concerns the actual use of the designated entity's spectrum capacity, it is the agreement, as opposed to the party with whom it is entered into, that causes the relationship to be ripe for abuse and creates the potential for the relationship to impede a designated entity's ability to become a facilities-based provider, as intended by Congress.

11. As the Commission indicated in the Secondary Markets Second Report and Order , 69 FR 77522 (December 27, 2004), Congress specifically intended that, in order to prevent unjust enrichment, the licensee receiving designated entity benefits must actually provide facilities-based services as authorized by its license. In that proceeding, the Commission stated that leasing by a designated entity licensee of substantially all of the spectrum capacity of the licensee would cause attribution that would likely lead to a loss of eligibility, and that the leasing of a small portion of such capacity where there was no other relationship between the parties likely would not result in a finding of attribution.

12. The Commission modifies its rules regarding eligibility for designated entity benefits for applicants or licensees that have agreements that create material relationships. Specifically, except as grandfathered, the Commission concludes that an applicant or licensee has impermissible material relationships when it has agreements with one or more other entities for the lease or resale of, on a cumulative basis, more than 50 percent of its spectrum capacity of any individual license. Such impermissible material relationships render the applicant or licensee (i) ineligible for the award of designated entity benefits, and (ii) subject to unjust enrichment on a license-by-license basis. Except as grandfathered, the Commission finds that an applicant or licensee has an attributable material relationship when it has one or more agreements with any individual entity, including entities and individuals attributable to that entity, for the lease or resale of, on a cumulative basis, more than 25 percent of the spectrum capacity of any individual license that is held by the applicant or licensee. The attributable material relationship with that entity will be attributed to the applicant or licensee for the purposes of determining the applicant's or licensee's (i) eligibility for designated entity benefits, and (ii) liability for unjust enrichment on a license-by-license basis.

13. The Commission concludes that these definitions of material relationship are necessary to ensure that the recipient of the Commission's designated entity benefits is an entity that uses its licenses to directly provide facilities-based telecommunications services for the benefit of the public; that the Commission employs methods to prevent unjust enrichment; and that its statutory-based benefits are awarded only to those that Congress intended to receive them.

14. Spectrum manager and de facto transfer leasing agreements and resale agreements with a single entity for 25 percent and less of the designated entity licensee's total spectrum capacity on a license-by-license basis, or cumulative agreements with multiple entities for 50 percent or less of a designated entity licensee's total spectrum capacity on a license-by-license basis will continue to be reviewed under the Commission's existing designated entity eligibility rules, and pursuant to existing rules and policies may result in unjust enrichment obligations.

15. Recognizing that there are numerous agreements in existence that might fall within the Commission's newly defined impermissible material relationships and attributable material relationship, the Commission will apply these eligibility restrictions on a prospective basis. The Commission will grandfather the existence of impermissible and attributable material relationships that were in existence before the release date of the Second R&O for the purposes of assessing unjust enrichment payments on benefits previously awarded or pending award. In assessing the imposition of unjust enrichment for future events, if any, the Commission will consider unjust enrichment implications on a license-by-license basis.

16. Except as limited by the Commission's grandfathering provisions, the rules that the Commission adopts will apply to all determinations of eligibility for all designated entity benefits with regard to any application filed to participate in auctions in which bidding begins after the effective date of the rules, as well as to all applications for an authorization, an assignment or transfer of control, a spectrum lease, or reports of events affecting a designated entity's ongoing eligibility. Grandfathering the eligibility of all prior designated entity structures that involve impermissible and/or attributable material relationships would allow these designated entities to continue to acquire additional licenses and designated entity benefits using a structure that the Commission has determined would permit a third party to leverage improper influence over a designated entity in a manner that is inconsistent with the Congressional purposes for the designated entity program. Applying the Commission's rules in this manner is consistent with how the Commission currently determines an applicant's eligibility for designated entity benefits and how it applies its unjust enrichment obligations.

17. To address concerns of several commenters, the Commission will, however, grandfather certain relationships that were in existence before the release date of the Second R&O in the context of eligibility for future benefits. Specifically, an applicant will not be considered to be ineligible for benefits based solely on an attributable material relationship or impermissible material relationships of certain of its affiliates provided that the agreement that forms the basis of the affiliate's attributable material relationship or impermissible material relationship is otherwise in compliance with the Commission's designated entity eligibility rules, was entered into prior to the release date of the Second R&O and is subject to a contractual prohibition that prevents the affiliate from contributing to the designated entity's total financing. In taking this action, the Commission seeks to ensure that the additional eligibility requirements it adopted does not unnecessarily restrict applicants seeking designated entity benefits for relationships that were previously permissible under the Commission's rules.

18. The Commission also made changes to its unjust enrichment rules to provide additional safeguards designed to better ensure that designated entity benefits go to their intended beneficiaries. One of the Commission's primary objectives in administering its designated entity program is to prevent unjust enrichment. Accordingly, in conjunction with the eligibility restrictions the Commission adopted, the Commission also modifies its rules and strengthens its unjust enrichment schedule for licenses acquired with bidding credits.

19. In the FNPRM , the Commission sought comment on whether it should adopt revisions to its unjust enrichment rules, or whether the Commission should adopt other revisions to its unjust enrichment rules. Additionally, the Commission sought comment on whether an unjust enrichment payment should not be required in the case of natural growth of the revenues attributed to an incumbent carrier above the established benchmark.

20. Commenters discussing proposed changes to the unjust enrichment policies, contend that the Commission should continue to apply the current unjust enrichment standard. These entities argue that the current unjust enrichment rules are sufficient and provide adequate protection. Thus, they conclude that no increased regulation is needed or appropriate. Other commenters argue for the implementation of stricter unjust enrichment rules.

21. The Commission agrees with commenters that adoption of stricter unjust enrichment rules, applicable to all designated entities, will promote the objectives of the designated entity program. The designated entity and unjust enrichment rules were adopted to ensure the creation of new telecommunications businesses owned by small businesses that will continue to provide spectrum-based services. In addition, the unjust enrichment rules provide a deterrent to speculation and participation in the licensing process by those who do not intend to offer service to the public, or who intend to use bidding credits to obtain a license at a discount and later to sell it at the full market price for a windfall profit. By extending the unjust enrichment period to ten years, the Commission increased the probability that the designated entity will develop to be a competitive facilities-based service provider.

22. In addition to revising the unjust enrichment payment schedule, the Commission will impose a requirement that the Commission must be reimbursed for the entire bidding credit amount owed, plus interest, if a designated entity loses its eligibility for a bidding credit for any reason, including but not limited to, entering into an impermissible material relationship or an attributable material relationship, seeking to assign or transfer control of a license, or entering into a de facto transfer lease with an entity that is not eligible for bidding credits prior to the filing of the notification informing the Commission that the construction requirements applicable at the end of the license term have been met.

23. The Commission imposes the above-mentioned reimbursement obligations on any licensee that acquires licenses with bidding credits and subsequently loses its eligibility for a bidding credit for any reason because the implementation of such a policy is consistent with the policies underlying the Commission's designated entity and unjust enrichment requirements. By expanding the unjust enrichment period and requiring full payment of the bidding credit until a license has been constructed, the Commission is fulfilling Congress's mandate that designated entities are given the opportunity to participate in the provision of spectrum-based services, while ensuring that entities that are not eligible for designated entity benefits cannot benefit from the designated entity program by acquiring the licenses or entering into impermissible or attributable material relationships with a designated entity after it acquires a license at auction or in the secondary market.

24. The Commission agrees with a commenter's proposal that unjust enrichment payments should not be required for licenses held by the designated entity in the case of natural or permissible growth of the gross revenues of either a designated entity or an investor in a designated entity. Currently, there are no permissible growth provisions associated with bidding credits. However, Commission practice has been that a designated entity will not owe unjust enrichment for its licenses if the designated entity's increased gross revenues, or the increased gross revenues of any controlling interest or affiliate, are due to nonattributable equity investments, debt financing, revenue from operations or other investments, business development, or expanded service. Under the policies adopted in the Second Report and Order, the Commission similarly would evaluate an applicant's or licensee's eligibility for designated entity benefit at the time it files an application regarding a reportable eligibility event, as required in the new § 1.2114 that the Commission adopted. Thus, if the designated entity seeks to acquire licenses on the secondary market or in future auctions, all of the designated entity's gross revenues, along with the gross revenues of its controlling interests and affiliates, will be attributed to the designated entity.

25. To prevent abuse of the designed entity program, the Commission will use the following combination of existing and new measures to ensure that designated entity incentives benefit solely those parties intended to receive them under both its rules and section 309(j) of the Communications Act of 1934. First, the Commission will review the agreements to which designated entity applicants and licensees are parties. Second, the Commission will require that applicants and licensees seek advance Commission approval for all events that might affect their ongoing eligibility for designated entity benefits. Third, the Commission will impose periodic reporting requirements on designated entities. Fourth, the Commission will conduct audits, including random audits, of those claiming designated entity benefits.

26. In light of the steps the Commission is taking in the Second R&O to aid its ability to ensure that only eligible entities obtain designated entity benefits, the Commission will undertake a thorough review of the long-form application (FCC Form 601) filed by every winning bidder claiming designated entity benefits and will carefully review all relevant contracts, agreements, letters of intent, and other such documents affecting that applicant. This review remains essential to the Commission's assessment of designated entity eligibility under the controlling interest standard and will be even more critical in ensuring that the rules and policies adopted in the Second R&O are fully effectuated. In order to implement this rule, the Commission delegated to the Bureau the authority to determine the method for designated entities to submit the appropriate and relevant documents.

27. Further, the Commission will also thoroughly review all relevant contracts, agreements, letters of intent, and other such documents affecting an applicant, which claims designated entity eligibility, seeking to acquire licenses with designated entity benefits in the secondary market.

28. In light of the changes that the Commission is making to the designated entity rules, the Commission will require additional information from applicants and licensees in order to ensure compliance with the policies and adopted rules. The Commission also adopted rules authorizing modifications to be made, as necessary, to and the creation, if necessary, of FCC forms to implement the rule changes.

29. The Commission will revise § 1.2110 of its rule to require designated entity licensees to file an annual report with the Commission, which will, at a minimum, include a list and summaries of all agreements and arrangements that relate to eligibility for designated entity benefits.

30. The Commission considers adoption of these reporting requirements to be a foreseeable component of the designated entity eligibility rules the Commission adopted, and the Commission believes them to be necessary to the successful implementation of these rules. The Commission delegates to the Bureau the authority to implement the necessary modifications to FCC forms and the Universal Licensing System to implement these rule changes and to determine the content of, and filing procedures for, the new annual filing requirement.

31. Pursuant to the Commission's existing rules, the Commission has broad power to conduct audits at any time and for any reason, including at random, of applicants and licensees claiming designated entity benefits. A commenter urges the Commission to employ its existing audit power and regularly conduct random audits to uncover manipulation of the program. The commenter recommends that these audits incorporate site visits to offices and physical plants, interviews with staff and meaningful inquiries into the management of the licenses. Another commenter suggested the imposition of periodic reporting requirements might dissuade some abuse of the Commission's rules.

32. The Commission agrees that its audit authority is an effective method by which to ascertain the initial and ongoing eligibility of the claimants of designated entity benefits. Applicants and licensees should therefore understand that the Commission can and will audit their continued designated entity eligibility as circumstances may necessitate or at will. Moreover, based on the significance of the upcoming AWS auction, the Commission commits to audit the eligibility of every designated entity that wins a license in that auction at least once during the initial license term. In order to effectively conduct these audits, the Commission delegates to the Bureau the authority to implement and create procedures to perform such audits.

33. In the FNPRM, the Commission intends any changes adopted to apply to AWS licenses currently scheduled to be offered in an auction beginning June 29, 2006. The Commission noted that in light of the current auction schedule, any changes that it adopts may become effective after the deadline for filing applications to participate in that auction. The Commission sought comment on its proposal to require applicants to amend their applications on or after the effective date of the rule changes with a statement declaring, under penalty of perjury, that the applicant is qualified as a designated entity pursuant to § 1.2110 of the Commission's rules effective as of the date of the statement. The Commission also notes that in the event applicants fail to file such a statement pursuant to procedures announced by public notice, they will be ineligible to qualify as a designated entity.

34. The vast majority of commenters did not address this issue. Under Commission rules, applicants asserting designated entity eligibility in a Commission auction are required to declare, under penalty of perjury, that they are qualified as a designated entity under § 1.2110 of the Commission's rules. After reviewing the record and considering the public interest benefits associated with the Commission's proposal, the Commission will require entities applying as designated entities to amend their applications for the AWS auction on or after the effective date of the rule changes with a statement declaring, under penalty of perjury, that the applicant is qualified as a designated entity pursuant to § 1.2110 of the Commission's rules effective as of the date of the statement.

35. The Commission modifies its rules for determining the eligibility of applicants for size-based benefits in the context of competitive bidding.

36. As required by the Regulatory Flexibility Act, 5 U.S.C. 604, the Commission has prepared a Final Regulatory Flexibility Analysis.

37. As required by the Regulatory Flexibility Act (RFA), an Initial Regulatory Flexibility Analysis (IRFA) was incorporated into the FNPRM of proposed Rule Making ( FNPRM ) in WT Docket No. 05-211. The Commission sought written public comment in the FNPRM on possible changes to its competitive bidding rules, as well as on the IRFA. One commenter addressed the IRFA. This Final Regulatory Flexibility Analysis conforms to the IRFA.

38. The Second Report and Order adopts modifications to the Commission's rules for determining the eligibility of applicants for size-based benefits in the context of competitive bidding. Over the last decade, the Commission has engaged in numerous rulemakings and adjudicatory investigations to prevent companies from circumventing the objectives of the designated entity eligibility rules. To that end, in determining whether to award designated entity benefits, the Commission adopted a strict eligibility standard that focused on whether the applicant maintained control of the corporate entity. The Commission's objective in employing such a standard was to deter the establishment of sham companies in a manner that permits easy resolution of eligibility issues without the delay of administrative hearings. The Commission intends its small business provisions to be available only to bona fide small businesses.

39. Consequently, the rules as modified by the Second Report and Order provide that certain material relationships of an applicant for designated entity benefits will be a factor in determining the applicant's eligibility. The Second Report and Order provides that if an applicant or licensee has agreements that together enable it to lease or resell more than 50 percent of the spectrum capacity of any individual licenses, the applicant or licensee will be ineligible for designated entity benefits. Further, the Second Report and Order also provides that if an applicant or licensee has agreements with any other entity, including entities or individuals attributable to that other entity that enable the applicant or licensee to lease or resell more than 25 percent of the spectrum capacity of any individual licenses, the other entity will be attributed to the applicant or licensee when determining the applicant's or licensee's eligibility for designated entity benefits. Finally, the modifications of the Second Report and Order strengthen the Commission's unjust enrichment rules to better deter attempts at circumvention and to recapture designated entity benefits when there has been a change in eligibility on a license-by-license basis. Similarly, to ensure its continued ability to safeguard the award of designated entity benefits, the Commission provides clarification regarding how it will implement its rules concerning audits and refines its rules with respect to the reporting obligations of designated entities.

40. These rule modifications will enhance the Commission's ability to carry out Congress's statutory plan in accordance with the intent of Congress that every recipient of designated entity benefits uses its licenses directly to provide facilities-based telecommunications services for the benefit of the public. In making these changes to the rules, the Commission takes another important step in fulfilling its statutory mandate to facilitate the participation of small businesses in the provision of spectrum based services.

41. The National Telecommunications Cooperative Association filed comments in response to the IRFA stating, among other things, that the Commission must take steps to minimize the economic impact of its proposed rules on small entities. NTCA asserts that the Commission must tailor its rules narrowly enough to target only real abuse, rather than capturing all rural telephone companies with any ties to a large in-region wireless provider, or it should exempt rural telephone companies from the rules' provision.

42. The RFA directs agencies to provide a description of and, where feasible, an estimate of the number of small entities that may be affected by the proposed rules, if adopted. The RFA generally defines the term small entity as having the same meaning as the terms small organization, small business, and small governmental jurisdiction. The term small business has the same meaning as the term small business concern under the Small Business Act. A small business concern is one which: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the SBA.

43. A small organization is generally any not-for-profit enterprise which is independently owned and operated and is not dominant in its field. Nationwide, as of 2002, there were approximately 1.6 million small organizations. The term small governmental jurisdiction is defined generally as governments of cities, towns, townships, villages, school districts, or special districts, with a population of less than fifty thousand. Census Bureau data for 2002 indicate that there were 87,525 local governmental jurisdictions in the United States. The Commission estimates that, of this total, 84,377 entities were small governmental jurisdictions. Thus, the Commission estimates that most governmental jurisdictions are small. Nationwide, there are a total of approximately 22.4 million small businesses, according to SBA data.

44. The changes and additions to the Commission's rules adopted in the Second Report and Order are of general applicability to all services, applying to all entities of any size that seek eligibility to participate in Commission auctions as a designated entity and/or that hold licenses won through competitive bidding that are subject to designated entity benefits. Accordingly, this FRFA provides a general analysis of the impact of the proposals on small businesses rather than a service by service analysis. The number of entities that may apply to participate in future Commission auctions is unknown. The number of small businesses that have participated in prior auctions has varied. In all of our auctions held to date, 1,975 out of a total of 3,545 qualified bidders either have claimed eligibility for small business bidding credits or have self-reported their status as small businesses as that term has been defined under rules adopted by the Commission for specific services. In addition, the Commission notes that, as a general matter, the number of winning bidders that qualify as small businesses at the close of an auction does not necessarily represent the number of small businesses currently in service. Also, the Commission does not generally track subsequent business size unless, in the context of changes in control, changes in material relationships or assignments or transfers, unjust enrichment issues are implicated.

45. The Commission will require additional information from applicants in order to ensure compliance with the policies and rules adopted by the Second Report and Order . For example, designated entity applicants that have filed applications to participate in an auction for which bidding will begin on or after the effective date of the rules, will be required to amend their applications on or after the effective date of the rule changes with a statement declaring, under penalty of perjury, that the applicant is qualified as a designated entity pursuant to the Commission's rules effective as of the date of the statement. In addition, the Commission adopts rules to make modifications, as necessary, to FCC forms related to auction, licensing, and leasing applications. Specifically, the modifications will require that designated entities report any relevant material relationship(s), as defined in newly adopted sections of 1.2110, reached after the date the rules are published in the Federal Register , even if the material relationship between the designated entity and the other entity would not have triggered a reporting requirement under the rules prior to the Second Report and Order.

46. The RFA requires an agency to describe any significant alternatives that it has considered in reaching its proposed approach, which may include the following four alternatives (among others): (1) The establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance or reporting requirements under the rule for small entities; (3) the use of performance rather than design standards; and (4) an exemption from coverage of the rule or any part thereof for small entities.

47. The FNPRM sought comment on several options for modifying its designated entity eligibility rules and specifically sought comment from small entities. The options included various ways to consider whether the Commission should award designated entity benefits where an applicant for such benefits also had financial or operational agreements with a larger entity. In considering these options, for the purposes of determining designated entity eligibility, the Commission defined the effect of entering certain agreements. By adopting the rules in the Second Report and Order, the Commission will enhance its ability to carry out Congress's statutory plan that every recipient of designated entity benefits uses their licenses directly to provide facilities-based telecommunications services, for the benefit of the public.

48. The Commission will send a copy of the Second Report and Order , including this FRFA, in a report to be sent to Congress pursuant to the SBREFA. In addition, the Commission will send a copy of the Second Report and Order, including the FRFA, to the Chief Counsel for Advocacy of the SBA. A copy of the Second Report and Order and the FRFA (or summaries thereof) will also be published in the Federal Register .

49. The Second Report and Order contains new or modified information collection requirements subject to the Paperwork Reduction Act Of 1995 (PRA), Public Law 104-13. It has been submitted to the Office of Management and Budget (OMB) for review under section 3507(D) of the PRA. OMB, the general public, and other federal agencies are invited to comment on the new or modified information collection requirements contained in this proceeding. In addition, the Commission notes that pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, 44 U.S.C. 3506(C)(4), the Commission previously sought specific comment on how it might further reduce the information collection burden for small business concerns with fewer than 25 employees.

50. In the Second Report and Order, the Commission has assessed the effects of its new restriction on the award of designated entity benefits where an applicant or licensee has agreements that create a material relationship with one or more other entities for the lease (under either spectrum manager or de facto transfer leasing arrangements) or resale (including under a wholesale arrangement) of a portion of its spectrum capacity. The Commission finds that the rule it adopts will best ensure that it can continue to award designated entity benefits to entities that Congress intended. While the new rule may impose a new information collection on small businesses, including those with fewer than 25 employees, the Commission concludes that this information collection is necessary to ensure that the benefits of its designated entity program are reserved only for legitimate small businesses.

51. The Commission will include a copy of the Second Report and Order and Second Further Notice of Proposed Rule Making in a report it will send to Congress and the Government Accountability Office pursuant to the Congressional Review Act, 5 U.S.C. 801(a)(1(A).

52. Accordingly, it is ordered that, pursuant to sections 4(i), 303(r), and 309(j) of the Communications Act of 1934, as amended, 47 U.S.C. sections 154(i), 303(r), and 309(j), the Second Report and Order is hereby adopted and part 1, subpart Q of the Commission's rules, 47 CFR Part 1, is amended as set forth in Appendix B of the Second Report and Order, effective 30 days after publication in the Federal Register , except for the grandfathering provisions which are effective upon release.

53. It is further ordered that, pursuant to 47 U.S.C. 155(c) and 47 CFR 0.131(c) and 0.331, the Chief of the Wireless Telecommunications Bureau is granted delegated authority to prescribe and set forth procedures for the implementation of the provisions adopted herein.

54. It is further ordered that the Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, shall send a copy of the Second Report and Order and Second Further Notice, including the Final Regulatory Flexibility Analysis to the Chief Counsel for Advocacy of the Small Business Administration.

The ocean salmon fisheries in the EEZ off Washington, Oregon, and California are managed under a “framework” fishery management plan entitled the Salmon FMP. Regulations at 50 CFR part 660, subpart H, provide the mechanism for making preseason and inseason adjustments to the management measures, within limits set by the Salmon FMP, by notification in the Federal Register .

These management measures for the 2006 and pre-May 2007 ocean salmon fisheries were recommended by the Pacific Fishery Management Council (Council) at its April 3 to 7, 2006, meeting.

The Council announced its annual preseason management process for the 2006 ocean salmon fisheries in the Federal Register on December 28, 2005 (70 FR 76783). This notice announced the availability of Council documents as well as the dates and locations of Council meetings and public hearings comprising the Council's complete schedule of events for determining the annual proposed and final modifications to ocean salmon fishery management measures. The agendas for the March and April Council meetings were published in subsequent Federal Register documents prior to the actual meetings.

In accordance with the Salmon FMP, the Council's Salmon Technical Team (STT) and staff economist prepared a series of reports for the Council, its advisors, and the public. The first of the reports was prepared in February when the scientific information first necessary for crafting management measures for the 2006 and pre-May 2007 ocean salmon fishery became available. The first report, “Review of 2005 Ocean Salmon Fisheries” (REVIEW), summarizes biological and socio-economic data for the 2005 ocean salmon fisheries and assesses how well the Council's 2005 management objectives were met. The second report, “Preseason Report I Stock Abundance Analysis for 2006 Ocean Salmon Fisheries” (PRE I), provides the 2006 salmon stock abundance projections and analyzes the impacts on the stocks and Council management goals if the 2005 regulations and regulatory procedures were applied to the projected 2006 stock abundances. The completion of PRE I is the initial step in evaluating the full suite of preseason options.

The Council met in Seattle, WA, from March 6 to 10, 2006, to develop 2006 management options. The Council proposed three options of commercial and recreational fisheries management for analysis and public comment. These options consisted of various combinations of management measures designed to protect weak stocks of coho and Chinook salmon and to provide for ocean harvests of more abundant stocks. After the March Council meeting, the Council's STT and staff economist prepared a third report, “Preseason Report II Analysis of Proposed Regulatory Options for 2006 Ocean Salmon Fisheries,” which analyzes the effects of the proposed 2006 management options. This report was made available to the Council, its advisors, and the public.

Public hearings, sponsored by the Council, to receive testimony on the proposed options were held on: March 27, 2006, in Westport, WA, and Coos Bay, OR; and March 28, 2006, in Santa Rosa, CA. The States of Washington, Oregon, and California sponsored meetings in various forums that also collected public testimony, which was then presented to the Council by each state's Council representative. The Council also received public testimony at both the March and April meetings and received written comments at the Council office.

The Council met from April 3 to 7, 2006, in Sacramento, CA, to take additional public comment and to adopt its final 2006 recommendations. Following the April Council meeting, the Council's STT and staff economist prepared a fourth report, “Preseason Report III Analysis of Council-Adopted Management Measures for 2006 Ocean Salmon Fisheries,” which analyzes the environmental and socio-economic effects of the Council's final recommendations. This report was also made available to the Council, its advisors, and the public. After the Council took final action on the annual ocean salmon specifications in April, it published the recommended management measures in its newsletter and also posted them on the Council Web site www.pcouncil.org .

Since 1989, NMFS has listed under the Endangered Species Act (ESA) 27 evolutionarily significant units (ESUs) of salmonids on the west coast. As the listings have occurred, NMFS has conducted formal ESA section 7 consultations and issued biological opinions, and made determinations under section 4(d) of the ESA, that consider the impacts to listed salmonid species resulting from proposed implementation of the Salmon FMP, or in some cases, from proposed implementation of the annual management measures. Associated with the biological opinions are incidental take statements which specify the level of take that is expected. Some of the biological opinions have concluded that implementation of the Salmon FMP is not likely to jeopardize the continued existence of certain listed ESUs and provided incidental take statements. Other biological opinions have found the Salmon FMP is likely to jeopardize certain listed ESUs and have identified reasonable and prudent alternatives (RPA) or consultation standards that would avoid the likelihood of jeopardizing the continued existence of the ESU under consideration, and provided an incidental take statement for the reasonable and prudent alternative. In a March 6, 2006, letter to the Council, NMFS provided the Council with ESA consultation standards and guidance for the management of stocks listed under the ESA in preparation for the 2006 management season in order to ensure that the Council recommendations comply with the ESA.

Estimates of the 2006 spawning escapements for key stocks managed under the Salmon FMP and preseason estimates of 2006 ocean abundance are provided in the Council's REVIEW and PRE I documents. The primary resource and management concerns are for salmon stocks listed under the ESA. However, this year KRFC are also a concern as explained below.

Lower Columbia River (LCR) coho were listed as threatened under the ESA on June 28, 2005 (70 FR 37160). As a result, this is the first year that LCR coho have been the subject of a section 7 consultation during the Council's preseason planning process. As a consequence of this consultation, the Council and associated state agencies made substantial changes in past management practice. Previously, ocean harvest impacts to LCR coho were estimated using Oregon Coast Natural (OCN) coho as a surrogate. In 2006, model procedures were changed to rely instead on LCR early- and late-timing hatchery stocks. In prior years, ocean fisheries were also managed using a harvest matrix that specified an allowable harvest rate depending on indicators of brood year escapement and survival. Given the circumstances in 2006, the harvest matrix would have allowed an OCN harvest rate of 15 percent and an in-river harvest rate of 7.5 percent. Because of uncertainties related to the status of LCR coho, and pending review and development of a more comprehensive long-term management strategy, NMFS guidance was to manage Council area fisheries and those in mainstem Columbia River subject to a total exploitation rate of 15 percent or less. As a consequence of this guidance, the 2006 ocean fisheries are expected to have an exploitation rate of 9.9 percent. This represents a 33 percent reduction in harvest impacts from what would have been allowed under the prior harvest matrix.

These ESA related changes in assessment methods and harvest limits substantially reduced harvest opportunity in fisheries north of Cape Falcon, OR. The coho quota for the area north of Cape Falcon in 2006 is 117,500 fish compared to a quota of 195,000 in 2005.

NMFS also consulted previously on LCR Chinook. The indicator stock for the tule component of the LCR Chinook ESU is from the Coweeman River. NMFS guidance for the Coweeman tule fall Chinook is to limit the combined impact of all fisheries to a 49 percent brood year exploitation rate. As a consequence of a post season review by the NMFS' Northwest Fisheries Science Center in 2005, it became apparent that actual exploitation rates in recent years had been higher than 49 percent, averaged on the order of 60 percent. In response, the Council's STT made changes in the methods for modeling harvest to correct for the apparent bias in preseason estimates. These changes resulted in the need for conservative management and also placed new constraints on fisheries north of Cape Falcon. The expected exploitation rates associated with the fisheries in 2006 on Coweeman, and other fisheries where tule fall Chinook are caught, is 47.2 percent.

An additional factor compounding the 2006 salmon management process was the unexpectedly high age-4 contact rates of KRFC in various fisheries along the Pacific Coast and the implications for conservation measures linked to threatened California Coastal Chinook (CCC). The 2000 CCC biological opinion, as amended in 2002, established an RPA that requires the Pacific ocean salmon fisheries to be managed to a pre-season projected KRFC age-4 harvest rate of 16 percent or less. This KRFC age-4 harvest rate is used as a proxy for the protection of listed CCC. The Klamath Ocean Harvest Model (KOHM) substantially underestimated the age-4 ocean harvest rate for KRFC the last three years. In 2003, 2004, and 2005 the projected pre-season harvest rates were 16 percent, 15 percent, and 7.7 percent, respectively, but the actual post-season harvest rate estimates were 23 percent, 52 percent, and 23.9 percent.

NMFS, Southwest Region (SWR), reinitiated consultation on the 2000 CCC biological opinion in 2005 that included an analytical review of the KOHM by the Council's STT and a detailed description of the events and dynamics surrounding the 2003 and 2004 ocean salmon seasons. The consultation was completed on June 13, 2005. The 2005 consultation concluded that the jeopardy determination made in the 2000 opinion was still appropriate and placed additional requirements on NMFS to implement parts 1 and 2 of the RPA. The first requirement stipulated that if the KOHM were to substantially under-predict the age-4 harvest rate again in 2005, that NMFS, in cooperation with the Council and STT would modify the KOHM to more heavily weight data observed in recent years. Since the 2005 post-season estimate was approximately three times the pre-season projection, the STT modified the KOHM to more accurately represent recent trends in effort and contact rate per unit effort. These changes to the model provide a more conservative approach for age-4 KRFC harvest rate estimation. The second requirement was to initiate a study to determine the feasibility of characterizing the ocean catch and distribution of CCC relative to other stocks using Genetic Stock Identification techniques. Work on the feasibility study is underway and the SWR is engaged in planning for implementation of the study in cooperation with NMFS' Southwest Fisheries Science Center and other relevant state and Federal agencies. These two actions fulfill the requirements of the 2005 consultation. Because of constraints explained below related to KRFC, the projected age-4 harvest rate for KRFC is estimated to be 11.5 percent, which is below the 16 percent pre-season age-4 harvest rate target. Considering this projection was made with a more conservative KOHM than was used in the past and additional restrictions on the commercial salmon fishery ( e.g. , a limit of 75 Chinook or fewer per week per vessel) are being implemented, the fishery is being managed in compliance with the requirements of the biological opinion. Therefore, the 2000 CCC biological opinion (and the ITS) still provides the necessary ESA take exemption for the 2006 ocean salmon fisheries.

Snake River fall Chinook are listed under the ESA as a threatened species. Direct information on the stock's ocean distribution and on fishery impacts is not available. Fishery impacts on Snake River fall Chinook are evaluated using the Lyons Ferry Hatchery stock as an indicator. The Lyons Ferry stock is widely distributed and harvested by ocean fisheries from southern California to Alaska. NMFS' ESA consultation standard requires that Council fisheries be managed to ensure that the Adult Equivalent (AEQ) exploitation rate on age-3 and age-4 adults for the combined Southeast Alaska, Canadian, and Council fisheries is not greater than 70 percent of that observed during the 1988-1993 base period. The 2006 fisheries, combined with expected impacts in Southeast Alaska and Canada fisheries, have an estimated age 3/4 AEQ exploitation rate that is 64.1 percent of that observed during the 1988-1993 base period. Meeting the Snake River fall Chinook age 3/4 AEQ exploitation rate was not a primary constraint on fisheries north of Cape Falcon.

This is the seventh year that NMFS provided guidance to the Council related to the Puget Sound Chinook ESU. NMFS' guidance for Puget Sound Chinook stocks is expressed in terms of total or southern U.S. fishery exploitation rate ceilings, or terminal escapement objectives. Under the current management structure, Council fisheries are included as part of the suite of fisheries that comprise the fishing regime negotiated each year by the co-managers under U.S. v. Washington , Civ. N. 70-9213 (W.D. Wash.) to meet management objectives for Puget Sound and Washington Coastal salmon stocks. Because these management objectives and the management planning structure address fisheries wherever they occur, Council and Puget Sound fisheries are interconnected. Therefore, in adopting its regulations, the Council recommends fisheries in the ocean that when combined with Puget Sound fisheries meet conservation objectives under Limit 6 of the 4(d) Rule. NMFS estimated that the exploitation rates from Council-managed fisheries on Puget Sound Chinook populations will range from zero to seven percent. Management actions taken to meet exploitation rate and escapement targets will, therefore, occur primarily in the Puget Sound fisheries, but the nature of the existing process is such that ocean fishery impacts must be accounted for as part of meeting comprehensive harvest management objectives.

In March 2005, NMFS approved fishing activities conducted in accordance with the harvest component of the Comprehensive Management Plan for Puget Sound Chinook, a Resource Management Plan (RMP) submitted by the Washington Department of Fish and Wildlife and the Puget Sound Treaty tribes under Limit 6 of the ESA 4(d) rule. The terms of the RMP have also been incorporated into the Draft Puget Sound Salmon Recovery Plan currently out for public review and comment. The take limit for fisheries implemented under the terms of the RMP apply to the 2005-2009 fishing years (May 1, 2005 through April 30, 2010). The RMP management approach consists of a two tiered harvest regime (normal and minimum), depending on stock status. The harvest objectives in the RMP are a mixture of total and southern U.S. exploitation rates (termed in the RMP—Rebuilding Exploitation Rates or RERs) and escapement goals. Under conditions of normal abundance, the RERs and escapement goals apply. However, when a particular management unit is (1) not expected to meet its low abundance threshold, or, (2) if the total exploitation rate is projected to exceed its RER under a proposed set of fisheries, the co-managers will constrain their fisheries such that either the RER is not exceeded, or the Critical Exploitation Rate Ceiling is not exceeded. The Council's proposed fisheries, in addition to anticipated inside fisheries, are consistent with the consultation standards for all of the Puget Sound indicator stocks.

Sacramento River winter Chinook are listed as endangered under the ESA. The Council's recommended management measures meet NMFS's requirements for the stock established through the ESA section 7 consultation process.

Southern resident killer whales were recently listed as endangered under the ESA effective February 16, 2006. NMFS has initiated a Section 7 consultation regarding the effects of Council salmon fisheries on southern resident killer whales. NMFS expects to complete a ESA section 7 consultation by June 2006. In the event that the review suggests that further constraints in the 2006 fisheries are necessary, appropriate corrections will be made by NMFS through inseason action.

The Council's final recommendation for the ocean salmon fishery seasons that commence May 1st deviates from the Salmon FMP specifically in regard to meeting the conservation objective, or escapement floor, of 35,000 adult natural KRFC spawners. Under this circumstance, implementation of an Emergency Action under Magnuson-Stevens Act authority at section 305(c)(2)(B) is necessary to modify the conservation objective in the Salmon FMP in order to implement the Council's proposal. The Temporary Rule for Emergency Action applies to the area from Cape Falcon, OR, to Point Sur, CA. These regulations close a majority of the commercial fisheries and greatly reduce the recreational fisheries in this area off Oregon and California from May 1 through August 31, 2006.

The conservation objective for KRFC in the Salmon FMP requires a return of 33-34 percent of potential adult natural spawners, but no fewer than 35,000 naturally spawning adults, in any one year. The preseason forecast for KRFC for 2006 is close to the record low, although actual run sizes have been lower in several prior years. Preseason estimates indicate that, if the ocean fishery was closed from January through August 2006, between Cape Falcon, OR, and Point Sur, CA (near Monterey), and assuming the tribes catch their allocation of fish in the river, the expected number of natural area adult spawners would be 25,400. Under the Salmon FMP, a “conservation alert” is triggered when a stock is projected to fall below its conservation objective. Under such circumstances the Council is required to close salmon fisheries within Council jurisdiction that impact the stock. Over 99 percent of KRFC are caught with other salmon stocks, including more abundant Central Valley fall-run Chinook, in commercial and recreational fisheries in the Klamath impact area from Cape Falcon to Point Sur. Because annual management measures must meet the Salmon FMP conservation objectives of all the key stocks, fishing seasons are usually limited by the necessity of meeting the requirements for the least abundant stock. The area that would be closed pursuant to the Salmon FMP would therefore include most of the Oregon coast and the northern half of California where KRFC are harvested at their highest rate. Given the circumstances, any fishing in the closed area would have to be approved by emergency rule to modify the Salmon FMP.

The process for setting this year's management measures was very controversial given the proposed reductions in fishing opportunities and potential closures. At both the March and April meetings, and the coastwide public hearings, there was a significant increase in participation and comments from the various fishing sectors regarding the proposed 2006 management measures. The majority of the comments expressed great concern that elimination of the ocean fisheries that impact KRFC would cause severe economic hardship to coastal communities from central California to central Oregon. Fishermen in these ports would have to forgo the opportunity to harvest other, stronger stocks of Chinook to preserve relatively few KRFC. Those testifying also spoke at length regarding concerns for the demise of the infrastructure that supports the fishing industry and thus the long-term consequences of a fishery closure or severe cutback in 2006. The Council, in trying to address the conservation concerns for KRFC while mitigating the adverse economic and social consequences, voted 13-1 to approve their final proposal which allows limited ocean fisheries that impact KRFC.

For NMFS, the key question in considering whether to approve the emergency rule was whether the proposed fisheries would jeopardize the capacity of the fishery to produce maximum sustained yield on a continuing basis. The NMFS Science Center report requested by NMFS focused on this question. The Council's Scientific and Statistical Committee provided comments and additional analysis to the Council on the Science Center report. The Council's STT also addressed questions related to the risks associated with low spawning escapement. The science advisory bodies all expressed concern about the risks related to the current circumstances, and contributing sources of uncertainty. However, although the advisors made the general point that reduced escapement increased the risk of depressing future production, they were unable to identify a particular point of elevated concern between Option III and an escapement level of approximately 20,000 natural spawners.

During its deliberations NMFS considered several factors that helped mitigate the qualitative perception of risk. Among these was a risk analysis included in the Science Centers' report that considered the probability that a very low recruitment would result from various levels of escapement that may occur in 2006. The magnitude of the probabilities varied greatly depending on the assumptions. But the results indicated that there was relatively little change in risk for the range of escapements between the no fishing option with an associated expected escapement of 25,400, and the expected escapement of 21,100 associated with the proposed season. Based on this analysis and other factors considered NMFS concluded that the marginal decrease in escapement that will result from the Council's proposed fisheries does not jeopardize the capacity of the fishery to produce maximum sustained yield on a continuing basis. NMFS further concluded that the limited fisheries in the Klamath impact area proposed for 2006 address the conservation concerns for KRFC while mitigating, to the degree possible, the adverse effects to the fishing community. The vote of the Council, and comments by the state Council representatives, in particular, reflect their concurrence with NMFS's conclusion. The Temporary Rule for Emergency Action to implement the 2006 annual management measures for the west coast ocean salmon fisheries covers the area from Cape Falcon, Oregon, to Point Sur, California.

The Council-recommended ocean harvest levels and management measures for 2006 fisheries are designed to apportion the burden of protecting the weak stocks identified and discussed in PRE I equitably among ocean fisheries and to allow maximum harvest of natural and hatchery runs surplus to inside fishery and spawning needs. NMFS finds the Council's recommendations responsive to the goals of the Salmon FMP as amended by the emergency modification to the KRFC escapement floor, the requirements of the resource, and the socio-economic factors affecting resource users. The recommendations are consistent with the requirements of the Magnuson- Stevens Act, U.S. obligations to Indian tribes with Federally recognized fishing rights, and U.S. international obligations regarding Pacific salmon. Accordingly, NMFS has adopted them.

North of Cape Falcon the 2006 management measures have a slightly lower Chinook quota and substantially lower coho quota relative to the 2005 season. The total allowable catch for 2006 is 65,000 Chinook and 80,000 marked hatchery coho; these fisheries are restricted to protect depressed Lower Columbia River wild coho, Lower Columbia River Chinook, Washington coastal coho, Puget Sound coho, OCN coho, Interior Fraser River coho, Puget Sound Chinook, and Snake River fall Chinook. Washington coastal and Puget Sound Chinook generally migrate to the far north and are not greatly affected by ocean harvests from Cape Falcon, OR, to the U.S.-Canada border. Nevertheless, ocean fisheries in combination with fisheries inside Puget Sound were restricted in order to meet ESA related conservation objectives for Puget Sound Chinook. North of Cape Alava, WA, the Council recommends a provision prohibiting retention of chum salmon during August and September to protect ESA listed Hood Canal summer chum. The Council has recommended such a prohibition for the last five years.

South of Cape Falcon, OR, Chinook fisheries off Oregon and California were dramatically reduced or closed because of concerns regarding KRFC's weak status. The retention of coho is prohibited, except for a recreational selective fishery off Oregon with a 20,000-fish quota of marked hatchery coho. This is the third year the selective fishery includes the southern coastal area off Oregon. The Council's recommendations are below the 15-percent exploitation rate permitted under Amendment 13 to protect OCN coho stocks, with an expected 9.6-percent OCN coho exploitation rate. The expected ocean exploitation rate for Rogue/Klamath coho is 5.2 percent, and is also below its exploitation rate limit of 13.0 percent.

The treaty-Indian commercial troll fishery quota is 42,200 Chinook in ocean management areas and Washington State Statistical Area 4B combined. This quota is slightly lower than the 48,000-Chinook quota in 2005. The fisheries include a Chinook-directed fishery in May and June (under a quota of 22,700 Chinook) and an all-salmon season beginning in July with a 19,500 Chinook sub-quota. The coho quota for the treaty-Indian troll fishery in ocean management areas, including Washington State Statistical Area 4B for the July-September period is 37,500 coho, a decrease from the 50,000-coho quota in 2005.

The timing of the March and April Council meetings makes it impracticable for the Council to recommend fishing seasons that begin before May 1 of the same year. Therefore, the 2007 fishing seasons opening earlier than May 1 are also established in this action. The Council recommended, and NMFS concurs, that the recreational seasons off California from Horse Mountain to the U.S.-Mexico Border and off Oregon from Cape Falcon to Humbug Mountain, and the commercial troll seasons off California from Horse Mountain to Point Arena and off Oregon from Cape Falcon to the Oregon-California Border, will open in 2007 as indicated in the Season Description section. At the March 2007 meeting, the Council may consider inseason recommendations to adjust the commercial seasons that open prior to May 1.

The following sections set out the management regime for the salmon fishery. Open seasons and days are described in Sections 1, 2, and 3 of the 2006 management measures. Inseason closures in the commercial and recreational fisheries are announced on the NMFS hotline and through the U.S. Coast Guard Notice to Mariners as described in Section 6. Other inseason adjustments to management measures are also announced on the hotline and through the Notice to Mariners. Inseason actions will also be published in the Federal Register as soon as practicable.

The following are the management measures recommended by the Council and approved and implemented here for 2006 and, as specified, for 2007.

May 1 through earlier of June 30 or a 22,450 Chinook quota. Open May 1-2 with a 75 Chinook per vessel landing and possession limit for the two-day open period; beginning May 6, open Saturday through Tuesday with an 80 Chinook per vessel possession and landing limit for each four-day open period. If insufficient quota remains to prosecute openings prior to the June 24-27 open period, the remaining quota will be provided for a June 27-30 open period with a per vessel landing and possession limit to be determined inseason. All salmon except coho (C.7). Cape Flattery and Columbia Control Zones closed (C.5). See gear restrictions and definitions (C.2, C.3). Vessels must land and deliver their fish within 24 hours of any closure of this fishery. Under state law, vessels must report their catch on a state fish receiving ticket. Vessels fishing north of Leadbetter Point must land and deliver their fish within the area and north of Leadbetter Point. Vessels fishing south of Leadbetter Point must land and deliver their fish within the area and south of Leadbetter Point, except that Oregon permitted vessels may also land their fish in Garibaldi, OR. Oregon State regulations require all fishers landing salmon into Oregon from any fishery between Leadbetter Point, WA, and Cape Falcon, OR, must notify Oregon Department of Fish and Wildlife (ODFW) within one hour of delivery or prior to transport away from the port of landing by calling 541-867-0300 Ext. 271. Notification shall include vessel name and number, number of salmon by species, port of landing and location of delivery, and estimated time of delivery. Inseason actions may modify harvest guidelines in later fisheries to achieve or prevent exceeding the overall allowable troll harvest impacts (C.8).

July 15 through earlier of September 15 or a 11,550 preseason Chinook guideline (C.8) or a 6,800 marked coho quota (C.8.d). Cape Flattery and Columbia Control Zones closed (C.5). Open Saturday through Tuesday July 15 through August 1. All salmon; landing and possession limit of 35 Chinook and 35 marked coho per vessel per four day open period (C.2, C.3). Open August 5 through September 15; Saturday through Monday. All salmon except no chum retention north of Cape Alava, WA, in August and September (C.7); landing and possession limit of 30 Chinook and 40 marked coho per vessel per three day open period. Gear restricted to plugs 6 inches (15.2 cm) or longer (C.2, C.3) Vessels must land and deliver their fish within 24 hours of any closure of this fishery. Under state law, vessels must report their catch on a state fish receiving ticket. Vessels fishing north of Leadbetter Point must land and deliver their fish within the area and north of Leadbetter Point. Vessels fishing south of Leadbetter Point must land and deliver their fish within the area and south of Leadbetter Point, except that Oregon permitted vessels may also land their fish in Garibaldi, OR. Oregon State regulations require all fishers landing salmon into Oregon from any fishery between Leadbetter Point, WA, and Cape Falcon, OR, must notify ODFW within one hour of delivery or prior to transport away from the port of landing by calling 541-867-0300 Ext. 271. Notification shall include vessel name and number, number of salmon by species, port of landing and location of delivery, and estimated time of delivery. Inseason actions may modify harvest guidelines in later fisheries to achieve or prevent exceeding the overall allowable troll harvest impacts (C.8).

June 4-7, 11-14, 18-21, 25-28; July 9-11, 16-18, 23-25; August 1-3; September 17-30; October 17-31 (C.9). All salmon except coho (C.7). Landing and possession limit of 75 Chinook per vessel per calendar week (Sunday through Saturday) during June, July, and August; 50 Chinook per calendar week September and October. Chinook 28 inch (71.1 cm) total length minimum size limit (B). All vessels fishing in the area must land their fish in the State of Oregon. See gear restrictions and definitions (C.2, C.3) and Oregon State regulations for a description of special regulations at the mouth of Tillamook Bay.

In 2007, the season will open March 15 for all salmon except coho, with a 28 inch (71.1 cm) total length Chinook minimum size limit. This opening could be modified following Council review at its March 2007 meeting.

Closed (C.9).

In 2007, the season will open March 15 for all salmon except coho, with a 28 inch (71.1 cm) total length Chinook minimum size limit. This opening could be modified following Council review at its March 2007 meeting.

Closed (C.9).

In 2007, the season will open March 15 for all salmon except coho, with a 28 inch (71.1 cm) total length Chinook minimum size limit. This opening could be modified following Council review at its March 2007 meeting.

Closed (C.9).

Closed (C.9).

September 1 through the earlier of September 15 or a Chinook quota of 4,000 (C.9). All salmon except coho. Landing and possession limit of 30 Chinook per vessel per day. Fish caught in the area must be landed in the area (C.1). Chinook minimum size limit 27 inches (68.6 cm) total length (B). See gear restrictions and definitions (C.2, C.3).

In 2007, the season will open March 15 for all salmon except coho, with a 27 inch (68.6 cm) total length Chinook minimum size limit (B). This opening could be modified following Council review at its March 2007 meeting.

July 26-31; August 1-31; September 1 through the earlier of September 30 or a Chinook quota of 20,000 (C.9). All salmon except coho. Landing and possession limit of 75 Chinook per vessel per calendar week (Sunday through Saturday) during July and August; fish must be landed in an area south of Horse Mountain. In September, fish caught in the area must be landed in the area, or in an adjacent closed area, if that area has been closed for at least 96 hours (C.1). Chinook minimum size limit 28 inches (71.1 cm) total length in July and August; 27 inches (68.6 cm) total length in September (B). See gear restrictions and definitions (C.2, C.3).

October 2-6; 9-13. Open Monday through Friday. All salmon except coho. All fish caught in the area must be landed in the area between Point Arena and Pigeon Point (C.1). Chinook minimum size limit 26 inches (68.0 cm) total length (B). See gear restrictions and definitions (C.2, C.3).

May 1-31; July 26-31; August 1-31; September 1-30 (C.9). All salmon except coho. Landing and possession limit of 75 Chinook per vessel per calendar week (Sunday through Saturday) during May, July, and August; fish must be landed in an area south of Point Arena. In September, fish must be landed in an area south of Pigeon Point, or in an adjacent closed area, if that area has been closed for at least 96 hours (C.1). Chinook minimum size limit 28 inches (71.1 cm) total length in July and August; 27 inches (68.6 cm) total length in May and September (B). See gear restrictions and definitions (C.2, C.3).

May 1 through September 30 (C.9). All salmon except coho. Fish must be landed south of Pigeon Point (C.1). Chinook minimum size limit 27 inches (68.6 cm) total length in May, June, and September; 28 inches (71.1 cm) total length in July and August (B). See gear restrictions and definitions (C.2, C.3).

C.1. Compliance with Minimum Size or Other Special Restrictions: All salmon on board a vessel must meet the minimum size, landing/possession limit, or other special requirements for the area being fished and the area in which they are landed if the area is open. Salmon may be landed in an area that has been closed more than 96 hours only if they meet the minimum size, landing/possession limit, or other special requirements for the area in which they were caught. Salmon may be landed in an area that has been closed less than 96 hours only if they meet the minimum size, landing/possession limit, or other special requirements for the areas in which they were caught and landed.

States may require fish landing/receiving tickets be kept on board the vessel for 90 days after landing to account for all previous salmon landings.

C.2. Gear Restrictions:

a. Single point, single shank, barbless hooks are required in all fisheries.

b. Cape Falcon, OR, to the Oregon-California border: No more than 4 spreads are allowed per line.

c. Oregon-California border to U.S.-Mexico border: No more than 6 lines are allowed per vessel, and barbless circle hooks are required when fishing with bait by any means other than trolling.

C.3. Gear Definitions:

a. Trolling defined: Fishing from a boat or floating device that is making way by means of a source of power, other than drifting by means of the prevailing water current or weather conditions.

b. Troll fishing gear defined: One or more lines that drag hooks behind a moving fishing vessel. In that portion of the fishery management area (FMA) off Oregon and Washington, the line or lines must be affixed to the vessel and must not be intentionally disengaged from the vessel at any time during the fishing operation.

c. Spread defined: A single leader connected to an individual lure or bait.

d. Circle hook defined: A hook with a generally circular shape and a point which turns inward, pointing directly to the shank at a 90° angle.

C.4. Transit Through Closed Areas with Salmon on Board: It is unlawful for a vessel to have troll or recreational gear in the water while transiting any area closed to fishing for a certain species of salmon, while possessing that species of salmon; however, fishing for species other than salmon is not prohibited if the area is open for such species and no salmon for which the area is closed are in possession.

C.5. Control Zone Definitions:

a. Cape Flattery Control Zone: The area from Cape Flattery, WA (48°23′00″ N. lat.), to the northern boundary of the U.S. EEZ; and the area from Cape Flattery, WA, south to Cape Alava, WA (48°10′00″ N. lat.), and east of 125°05′00″ W. long.

b. Columbia Control Zone: An area at the Columbia River mouth, bounded on the west by a line running northeast/southwest between the red lighted Buoy #4 (46°13′35″ N. lat., 124°06′50″ W. long.) and the green lighted Buoy #7 (46°15′09″ N. lat., 124°06′16″ W. long.); on the east, by the Buoy #10 line which bears north/south at 357° true from the south jetty at 46°14′00″ N. lat., 124°03′07″ W. long. to its intersection with the north jetty; on the north, by a line running northeast/southwest between the green lighted Buoy #7 to the tip of the north jetty (46°15′48″ N. lat., 124°05′20″ W. long.) and then along the north jetty to the point of intersection with the Buoy #10 line; and, on the south, by a line running northeast/southwest between the red lighted Buoy #4 and tip of the south jetty (46°14′03″ N. lat., 124°04′05″ W. long.), and then along the south jetty to the point of intersection with the Buoy #10 line.

c. Klamath Control Zone: The ocean area at the Klamath River mouth bounded on the north by 41°38′48″ N. lat. (approximately 6 nautical miles (11.1 km) north of the Klamath River mouth); on the west, by 124°23′00″ W. long. (approximately 12 nautical miles (22.2 km) off shore); and, on the south, by 41°26′48″ N. lat. (approximately 6 nautical miles (11.1 km) south of the Klamath River mouth).

C.6. Notification When Unsafe Conditions Prevent Compliance with Regulations: If prevented by unsafe weather conditions or mechanical problems from meeting special management area landing restrictions, vessels must notify the U.S. Coast Guard and receive acknowledgment of such notification prior to leaving the area. This notification shall include the name of the vessel, port where delivery will be made, approximate amount of salmon (by species) on board and the estimated time of arrival.

C.7. Incidental Halibut Harvest: During authorized periods, the operator of a vessel that has been issued an incidental halibut harvest license may retain Pacific halibut caught incidentally in Area 2A while trolling for salmon. Halibut retained must be no less than 32 inches (81.3 cm) in total length, measured from the tip of the lower jaw with the mouth closed to the extreme end of the middle of the tail, and must be landed with the head on. License applications for incidental harvest must be obtained from the International Pacific Halibut Commission (IPHC) (phone 206-634-1838). Applicants must apply prior to April 1 of each year. Incidental harvest is authorized only during May-June troll seasons and after June 30 if quota remains and if announced on the NMFS hotline (phone 800-662-9825). ODFW and Washington Department of Fish and Wildlife (WDFW) will monitor landings. If the landings are projected to exceed the 41,464-lb. (18.8-mt) preseason allocation or the total Area 2A non-Indian commercial halibut allocation, NMFS will take inseason action to close the incidental halibut fishery.

Beginning May 1, license holders may land no more than 1 Pacific halibut per each 3 Chinook, except 1 Pacific halibut may be landed without meeting the ratio requirement, and no more than 35 halibut may be landed per trip. Pacific halibut retained must be no less than 32 inches (81.3 cm) in total length (with head on).

A “C-shaped” yelloweye rockfish conservation area is an area to be avoided for salmon trolling. NMFS and the Council request salmon trollers voluntarily avoid this area in order to protect yelloweye rockfish. The area boundary is defined in the Council Halibut Catch Sharing Plan in the North Coast subarea (Washington marine area 3), by straight lines connecting the following coordinates in the order listed:

C.8. Inseason Management: In addition to standard inseason actions or modifications already noted under the season description, the following inseason guidance is provided to NMFS:

a. Chinook remaining from the May through June non-Indian commercial troll harvest guideline north of Cape Falcon, OR, may be transferred to the July through September harvest guideline on a fishery impact equivalent basis.

b. NMFS may transfer fish between the recreational and commercial fisheries north of Cape Falcon, OR, if there is agreement among the areas' representatives on the Salmon Advisory Subpanel.

c. At the March 2007 meeting, the Council will consider inseason recommendations for special regulations for any experimental fisheries (proposals must meet Council protocol and be received in November 2006).

d. If retention of unmarked coho is permitted in the area from the U.S.-Canada border to Cape Falcon, OR, by inseason action, the allowable coho quota will be adjusted to ensure preseason projected mortality of critical stocks is not exceeded.

C.9. Consistent with Council management objectives:

a. The State of Oregon may establish additional late-season, Chinook-only fisheries in state waters.

b. The State of California may establish limited fisheries in selected state waters.

Check state regulations for details.

C.10. For the purposes of California Department of Fish and Game Code, Section 8232.5, the definition of the Klamath Management Zone for the ocean salmon season shall be that area from Humbug Mountain, OR, to Horse Mountain, CA.

June 30 through earlier of September 17 or a 7,058 marked coho subarea quota with a subarea guideline of 3,200 Chinook (C.6). Open Tuesday through Saturday. All salmon, except no chum retention August 1 through September 17, two fish per day, no more than one of which may be a Chinook (Chinook 24-inch (61.0 cm) total length minimum size limit) (B). All retained coho must be marked. See gear restrictions (C.2). Beginning August 1, Chinook non-retention east of the Bonilla-Tatoosh line (C.4.d) during Council managed ocean fishery. Inseason management may be used to sustain season length and keep harvest within the overall Chinook recreational TAC for north of Cape Falcon (C.4).

June 30 through earlier of September 17 or a 1,889 marked coho subarea quota with a subarea guideline of 1,300 Chinook; Open Tuesday through Saturday. September 23 through October 8 or a 50 marked coho quota or 100 Chinook quota; in the area north of 47°50′00″ N. Lat. and south of 48°00′00″ N. Lat. (C.5); open seven days per week (C.6). All salmon, two fish per day, no more than one of which may be a Chinook (Chinook 24-inch (61.0 cm) total length minimum size limit) (B). All retained coho must be marked. See gear restrictions (C.2). Inseason management may be used to sustain season length and keep harvest within the overall Chinook recreational TAC for north of Cape Falcon (C.4).

July 3 through earlier of September 17 or a 27,603 marked coho subarea quota with a subarea guideline of 18,100 Chinook (C.6). Open Sunday through Thursday. All salmon, two fish per day, no more than one of which may be a Chinook (Chinook 24-inch (61.0 cm) total length minimum size limit) (B). All retained coho must be marked. See gear restrictions and definitions (C.2, C.3). Beginning August 1, Grays Harbor Control Zone closed (C.4.b). Inseason management may be used to sustain season length and keep harvest within the overall Chinook recreational TAC for north of Cape Falcon (C.5).

July 3 through earlier of September 30 or a 36,600 marked coho subarea quota with a subarea guideline of 8,300 Chinook (C.6). Open Sunday through Thursday. All salmon, two fish per day, no more than one of which may be a Chinook (Chinook 24-inch (61.0 cm) total length minimum size limit) (B). All retained coho must be marked with a healed adipose fin clip. See gear restrictions and definitions (C.2, C.3). Columbia Control Zone closed (C.4.a). Closed between Cape Falcon and Tillamook Head beginning August 1. Inseason management may be used to sustain season length and keep harvest within the overall Chinook recreational TAC for north of Cape Falcon (C.5).

Except as provided below during the selective fishery, the season will be March 15 through October 31 (C.6). All salmon except coho. Two fish per day (C.1). See gear restrictions and definitions (C.2, C.3).

Selective fishery: Cape Falcon to the Oregon-California Border. June 17 through earlier of July 31 or a landed catch of 20,000 marked coho, except that the area south of Humbug Mountain will close July 5-31, concurrent with the KMZ season listed below. If quota remains, September 1 through the earlier of September 6 or a landed catch of any remaining quota from the June 17 through July 31 fishery. Open seven days per week, all salmon, two fish per day (C.1). All retained coho must be marked with a healed adipose fin clip.

Fishing in the Stonewall Bank groundfish conservation area restricted to trolling only on days the all depth recreational halibut fishery is open (see 71 FR 10850, March 3, 2006, and call the halibut fishing hotline 1-800-662-9825 for additional dates) (C.3, C.4.e). Open days may be adjusted inseason to utilize the available quota (C.5). All salmon except coho seasons reopen the day following the closure of the mark selective coho fishery.

In 2007, the season will open March 15 for all salmon except coho, two fish per day (C.1), Chinook minimum size limit of 20 inches (50.8 cm) total length (B), and the same gear restrictions as in 2006 (C.2, C.3).

Except as provided above during the selective fishery, the season will be May 15 through July 4; and September 1-6 (C.6). All salmon except coho, except as noted above in the coho mark selective fishery. Chinook minimum size limit 24 inches (61.0 cm) total length (B). Open seven days per week, two fish per day (C.1). See gear restrictions and definitions (C.2, C.3). Klamath Control Zone closed in August (C.4.c). See California State regulations for additional closures adjacent to the Smith, Klamath, and Eel rivers.

February 18 through May 31; June 1-4, 7-11, 14-18, 21-25, 28-30; July 1-9, 15-16, 22-23, 26-31; August 1 through November 12 (C.6). All salmon except coho. Two fish per day (C.1). Chinook minimum size limit 20 inches (50.8 cm) total length (B). See gear restrictions and definitions (C.2, C.3).

In 2007, season opens February 17 (nearest Saturday to February 15) for all salmon except coho, two fish per day (C.1), Chinook minimum size limit of 20 inches (50.8 cm) total length (B), and the same gear restrictions as in 2006 (C.2, C.3).

April 1-30 inside 3 nm (5.6 km) (state waters only; C.6). May 1 through June 11; June 14 through July 9; July 12 through November 12 (C.6). All salmon except coho. Two fish per day (C.1). Chinook minimum size limit 20 inches (50.8 cm) total length (B). See gear restrictions and definitions (C.2, C.3).

In 2007, the season will open April 7 for all salmon except coho, two fish per day (C.1), Chinook minimum size limit of 20 inches (50.8 cm) total length (B), and the same gear restrictions as in 2006 (C.2, C.3).

April 1-30 inside 3 nm (5.6 km) (state waters only; C.6). May 1 through September 24 (C.6). All salmon except coho. Two fish per day (C.1). Chinook minimum size limit 20 inches (50.8 cm) total length (B). See gear restrictions and definitions (C.2, C.3).

In 2007, the season will open April 7 for all salmon except coho, two fish per day (C.1), Chinook minimum size limit of 20 inches (50.8 cm) total length (B), and the same gear restrictions as in 2006 (C.2, C.3).

April 1 through September 24 (C.6). All salmon except coho. Two fish per day (C.1). Chinook minimum size limit 20 inches (50.8 cm) total length (B). See gear restrictions and definitions (C.2, C.3).

In 2007, the season will open April 7 for all salmon except coho, two fish per day (C.1), Chinook minimum size limit of 20 inches (50.8 cm) total length (B), and the same gear restrictions as in 2006 (C.2, C.3).

C.1. Compliance with Minimum Size and Other Special Restrictions: All salmon on board a vessel must meet the minimum size or other special requirements for the area being fished, and the area in which they are landed if that area is open. Salmon may be landed in an area that is closed only if they meet the minimum size or other special requirements for the area in which they were caught.

Ocean Boat Limits: Off the coast of Washington, Oregon, and California, each fisher aboard a vessel may continue to use angling gear until the combined daily limits of salmon for all licensed and juvenile anglers aboard has been attained (additional state restrictions may apply).

C.2. Gear Restrictions: All persons fishing for salmon, and all persons fishing from a boat with salmon on board must meet the gear restrictions listed below for specific areas or seasons.

a. U.S.-Canada Border to Point Conception, CA: No more than one rod may be used per angler; and single point, single shank barbless hooks are required for all fishing gear. Note: ODFW regulations in the state-water fishery off Tillamook Bay, OR, may allow the use of barbed hooks to be consistent with inside regulations.

b. Cape Falcon, OR, to Point Conception, CA: Anglers must use no more than 2 single point, single shank, barbless hooks.

c. Horse Mountain to Point Conception, CA: Single point, single shank, barbless circle hooks (see circle hook definition below) must be used if angling with bait by any means other than trolling and no more than 2 such hooks shall be used. When angling with 2 hooks, the distance between the hooks must not exceed 5 inches (12.7 cm) when measured from the top of the eye of the top hook to the inner base of the curve of the lower hook, and both hooks must be permanently tied in place (hard tied). Circle hooks are not required when artificial lures are used without bait.

C.3. Gear Definitions:

a. Recreational fishing gear defined: Angling tackle consisting of a line with no more than one artificial lure or natural bait attached. Off Oregon and Washington, the line must be attached to a rod and reel held by hand or closely attended; the rod and reel must be held by hand while playing a hooked fish. No person may use more than one rod and line while fishing off Oregon or Washington. Off California, the line must be attached to a rod and reel held by hand or closely attended. Weights directly attached to a line may not exceed four pounds (1.8 kg). While fishing off California north of Point Conception, no person fishing for salmon, and no person fishing from a boat with salmon on board, may use more than one rod and line. Fishing includes any activity which can reasonably be expected to result in the catching, taking, or harvesting of fish.

b. Circle hook defined: A hook with a generally circular shape and a point which turns inward, pointing directly to the shank at a 90° angle.

c. Trolling defined: Angling from a boat or floating device that is making way by means of a source of power, other than drifting by means of the prevailing water current or weather conditions.

C.4. Control Zone Definitions:

a. Columbia Control Zone: An area at the Columbia River mouth, bounded on the west by a line running northeast/southwest between the red lighted Buoy #4 (46°13′35″ N. lat., 124°06′50″ W. long.) and the green lighted Buoy #7 (46°15′09″ N. lat., 124°06′16″ W. long.); on the east, by the Buoy #10 line which bears north/south at 357° true from the south jetty at 46°14′00″ N. lat., 124°03′07″ W. long. to its intersection with the north jetty; on the north, by a line running northeast/southwest between the green lighted Buoy #7 to the tip of the north jetty (46°15′48″ N. lat., 124°05′20″ W. long.) and then along the north jetty to the point of intersection with the Buoy #10 line; and, on the south, by a line running northeast/southwest between the red lighted Buoy #4 and tip of the south jetty (46°14′03″ N. lat., 124°04′05″ W. long.), and then along the south jetty to the point of intersection with the Buoy #10 line.

b. Grays Harbor Control Zone: The area defined by a line drawn from the Westport Lighthouse (46°53′18″ N. lat., 124°07′01″ W. long.) to Buoy #2 (46°52′42″ N. lat., 124°12′42″ W. long.) to Buoy #3 (46°55′00″ N. lat., 124°14′48″ W. long.) to the Grays Harbor north jetty (46°36′00″ N. lat., 124°10′51″ W. long.).

c. Klamath Control Zone: The ocean area at the Klamath River mouth bounded on the north by 41°38′48″ N. lat. (approximately 6 nautical miles (11.1 km) north of the Klamath River mouth); on the west, by 124°23′00″ W. long. (approximately 12 nautical miles (22.2 km) off shore); and, on the south, by 41°26′48″ N. lat. (approximately 6 nautical miles (11.1 km) south of the Klamath River mouth).

d. Bonilla-Tatoosh Line: Defined as a line running from the western end of Cape Flattery, WA, to Tatoosh Island Lighthouse (48°23′30″ N. lat., 124°44′12″ W. long.) to the buoy adjacent to Duntze Rock (48°28′00″ N. lat., 124°45′00″ W. long.), then in a straight line to Bonilla Point (48°35′30″ N. lat., 124°43′00″ W. long.) on Vancouver Island, B.C.

e. Stonewall Bank Groundfish Conservation Area: The area defined by the following coordinates in the order listed:

C.5. Inseason Management: Regulatory modifications may become necessary inseason to meet preseason management objectives such as quotas, harvest guidelines, and season duration. In addition to standard inseason actions or modifications already noted under the season description, the following inseason guidance is provided to NMFS:

a. Actions could include modifications to bag limits, or days open to fishing, and extensions or reductions in areas open to fishing.

b. Coho may be transferred inseason among recreational subareas north of Cape Falcon on an impact neutral basis to help meet the recreational season duration objectives (for each subarea) after conferring with representatives of the affected ports and the Council's Salmon Advisory Subpanel (SAS) recreational representatives north of Cape Falcon.

c. Chinook and coho may be transferred between the recreational and commercial fisheries north of Cape Falcon on an impact neutral basis if there is agreement among the representatives of the SAS.

d. If retention of unmarked coho is permitted in the area from the U.S.-Canada border to Cape Falcon, OR, by inseason action, the allowable coho quota will be adjusted to ensure preseason projected mortality of critical stocks is not exceeded.

C.6. Additional Seasons in State Waters: Consistent with Council management objectives, the States of Washington, Oregon, and California may establish limited seasons in state waters. Oregon State-water fisheries are limited to Chinook salmon. Check state regulations for details.

May 1 through the earlier of June 30 or a 22,700 Chinook quota. All salmon except coho. If the Chinook quota for the May-June fishery is not fully utilized, the excess fish cannot be transferred into the later all-salmon season. If the Chinook quota is exceeded, the excess will be deducted from the later all-salmon season. See size limit (B) and other restrictions (C).

July 1 through the earlier of September 15, or a 19,500 preseason Chinook quota, or a 37,500 coho quota. All salmon. See size limit (B) and other restrictions (C).

C.1 Tribe and Area Boundaries: All boundaries may be changed to include such other areas as may hereafter be authorized by a Federal court for that tribe's treaty fishery.

MAKAH —Washington State Statistical Area 4B and that portion of the FMA north of 48°02′15″ N. lat. (Norwegian Memorial) and east of 125°44′00″ W. long.

QUILEUTE —That portion of the FMA between 48°07′36″ N. lat. (Sand Point) and 47°31′42″ N. lat. (Queets River) and east of 125°44′00″ W. long.

HOH —That portion of the FMA between 47°54′18″ N. lat. (Quillayute River) and 47°21′00″ N. lat. (Quinault River) and east of 125°44′00″ W. long.

QUINAULT —That portion of the FMA between 47°40′06″ N. lat. (Destruction Island) and 46°53′18″ N. lat. (Point Chehalis) and east of 125°44′00″ W. long.

C.2 Gear restrictions:

a. Single point, single shank, barbless hooks are required in all fisheries.

b. No more than 8 fixed lines per boat.

c. No more than four hand held lines per person in the Makah area fishery (Washington State Statistical Area 4B and that portion of the FMA north of 48°02′15″ N. lat. (Norwegian Memorial) and east of 125°44′00″ W. long.)

C.3 Quotas:

a. The quotas include troll catches by the S'Klallam and Makah tribes in Washington State Statistical Area 4B from May 1 through September 15.

b. The Makah encounter rate study will occur between May 1 and September 15. Salmon taken in the study by treaty Indian vessels will be counted towards the overall treaty Indian troll quota.

c. The Quileute Tribe will continue a ceremonial and subsistence fishery during the time frame of September 15 through October 15 in the same manner as in 2004 and 2005. Fish taken during this fishery are to be counted against treaty troll quotas established for the 2006 season (estimated harvest during the October ceremonial and subsistence fishery: 100 Chinook; 200 coho).

C.4 Area Closures:

a. The area within a 6-nautical mile (11.1-km) radius of the mouths of the Queets River, WA (47°31′42″ N. lat.) and the Hoh River, WA (47°45′12″ N. lat.) will be closed to commercial fishing.

b. A closure within 2-nautical miles (3.7 km) of the mouth of the Quinault River, WA (47°21′00″ N. lat.) may be enacted by the Quinault Nation and/or the State of Washington and will not adversely affect the Secretary of Commerce's management regime.

Under the authority of the Northern Pacific Halibut Act, NMFS promulgated regulations governing the Pacific halibut fishery which appear at 50 CFR part 300, subpart E. On March 3, 2006, NMFS published a final rule (71 FR 10850) to implement the International Pacific Halibut Commission's (IPHC) recommendations, to announce fishery regulations for U.S. waters off Alaska and fishery regulations for treaty commercial and ceremonial and subsistence fisheries, some regulations for non-treaty commercial fisheries for U.S. waters off the West Coast, and approval of and implement the Area 2A Pacific halibut Catch Sharing Plan and the Area 2A management measures for 2006. The regulations and management measures provide that vessels participating in the salmon troll fishery in Area 2A (all waters off the States of Washington, Oregon, and California), which have obtained the appropriate IPHC license, may retain halibut caught incidentally during authorized periods in conformance with provisions published with the annual salmon management measures. A salmon troller may participate in the halibut incidental catch fishery during the salmon troll season or in the directed commercial fishery targeting halibut, but not both.

The following measures have been approved by the IPHC, and implemented by NMFS. The operator of a vessel who has been issued an incidental halibut harvest license by the IPHC may retain Pacific halibut caught incidentally in Area 2A, during authorized periods, while trolling for salmon. Incidental harvest is authorized only during the May and June troll seasons. It is also authorized after June 30 if halibut quota remains and if halibut retention is announced on the NMFS hotline (phone 800-662-9825). License holders may land no more than 1 halibut per each 3 Chinook, except 1 halibut may be landed without meeting the ratio requirement, and no more than 35 halibut may be landed per trip. Halibut retained must meet the minimum size limit of 32 inches (81.3 cm) total length (with head on). The ODFW and WDFW will monitor landings and, if they are projected to exceed the 41,464-lb. (18.8-mt) salmon troll allocation or the Area 2A non-Indian commercial total allowable catch of halibut, NMFS will take inseason action to close the incidental halibut fishery. License applications for incidental harvest must be obtained from the IPHC. Applicants must apply prior to April 1 of each year.

NMFS and the Council request that salmon trollers voluntarily avoid a “C-shaped” yelloweye rockfish conservation area in order to protect yelloweye rockfish. The area is defined in the Pacific Council Halibut Catch Sharing Plan in the North Coast subarea (WA marine area 3) (See Section 1.C.7. for the coordinates).

Wherever the words “nautical miles off shore” are used in this document, the distance is measured from the baseline from which the territorial sea is measured.

Geographical landmarks referenced in this document are at the following locations:

Actual notice of inseason management actions will be provided by a telephone hotline administered by the Northwest Region, NMFS, 206-526-6667 or 800-662-9825, and by U.S. Coast Guard Notice to Mariners broadcasts. These broadcasts are announced on Channel 16 VHF-FM and 2182 KHz at frequent intervals. The announcements designate the channel or frequency over which the Notice to Mariners will be immediately broadcast. Inseason actions will also be filed with the Federal Register as soon as practicable. Since provisions of these management measures may be altered by inseason actions, fishermen should monitor either the telephone hotline or Coast Guard broadcasts for current information for the area in which they are fishing.

This notification of annual management measures is exempt from review under Executive Order 12866.

The Assistant Administrator has determined that the measures described in the preamble that deviate from the framework FMP and its implementing regulations are necessary to respond to an emergency situation and are consistent with the Magnuson-Stevens Act and other applicable law. The measures falling under emergency authority of section 305(c) of the Magnuson-Stevens Act (emergency rule) involve an overall ocean harvest rate on Klamath River fall Chinook that will result in a projected Klamath fall Chinook spawning escapement of 21,100, below the floor of 35,000 naturally spawning adults. Therefore, it is necessary to amend those portions of the framework FMP and its implementing regulations by emergency action pursuant to 16 U.S.C. 1855(c).

The provisions of 50 CFR 660.411 state that if, for good cause, an action must be filed without affording a prior opportunity for public comment, the measures will become effective; however, public comments on the action will be received for a period of 15 days after the date of publication in the Federal Register . NMFS will receive public comments on this action until May 19, 2006. These regulations are being promulgated under the authority of 16 U.S.C. 1855(c) and (d).

The Assistant Administrator for Fisheries, NOAA (AA) finds good cause under 5 U.S.C. 553(b)(B), to waive the requirement for prior notice and opportunity for public comment, as such procedures are impracticable.

The annual salmon management cycle begins May 1 and continues through April 30 of the following year. May 1 was chosen because the pre-May harvests constitute a relatively small portion of the annual catch. The time-frame of the preseason process for determining the annual modifications to ocean salmon fishery management measures depends on when the pertinent biological data are available. Salmon stocks are managed to meet annual spawning escapement goals or specific exploitation rates. Achieving either of these objectives requires designing management measures that are appropriate for the ocean abundance predicted for that year. These pre-season abundance forecasts, which are derived from the previous year's observed spawning escapement, vary substantially from year to year, and are not available until January and February because spawning escapement continues through the fall.

The preseason planning and public review process associated with developing Council recommendations is initiated in February as soon as the forecast information becomes available. The public planning process requires coordination of management actions of four states, numerous Indian tribes, and the Federal Government, all of which have management authority over the stocks. This complex process includes the affected user groups, as well as the general public. The process is compressed into a 2-month period which culminates at the April Council meeting at which the Council adopts a recommendation that is forwarded to NMFS for review, approval and implementation of fishing regulations effective on May 1.

Providing opportunity for prior notice and public comments on the Council's recommended measures through a proposed and final rulemaking process would require 30 to 60 days in addition to the 2-month period required for development of the regulations. Delaying implementation of annual fishing regulations, which are based on the current stock abundance projections, for an additional 60 days would require that fishing regulations for May and June be set in the previous year without knowledge of current stock status. Although this is currently done for fisheries opening prior to May, relatively little harvest occurs during that period ( e.g. , in 2005 less than 10 percent of commercial and recreational harvest occurred prior to May 1). Allowing the much more substantial harvest levels normally associated with the May and June seasons to be regulated in a similar way would impair NMFS' ability to protect weak and ESA listed stocks and provide harvest opportunity where appropriate.

Overall, the annual population dynamics of the various salmon stocks require managers to vary the season structure of the various West Coast area fisheries to both protect weaker stocks and give fishers access to stronger salmon stocks, particularly hatchery produced fish. Failure to implement these measures immediately could compromise the status of certain stocks, or result in foregone opportunity to harvest stocks whose abundance has increased relative to the previous year thereby undermining the purpose of this agency action. For example, the 2006 forecast ocean abundance for KRFC requires closing the commercial seasons from Cape Falcon to Humbug Mountain, OR, in May, where these areas were open in May during the 2005 season. Without these, and similar restrictions in other areas in 2006, the projected KRFC natural spawning escapement would be even lower, which would increase the risk of jeopardizing the capacity of the fishery to produce maximum sustained yield on a continuing basis. In addition, in the commercial fishery north of Cape Falcon, the fishing periods are shorter and the landing and possession limits are lower in May in 2006 than they were in 2005 in order to protect LCR coho and Chinook stocks. Based upon the above-described need to have these measures effective on May 1 and the fact that there is limited time available to implement these new measures after the final Council meeting in April and before the commencement of the ocean salmon fishing year on May 1, NMFS has concluded it is impracticable to provide an opportunity for prior notice and public comment under 5 U.S.C. 553(b)(B).

The AA also finds that good cause exists under 5 U.S.C. 553(d)(3), to waive the 30-day delay in effectiveness of this final rule. As previously discussed, data are not available until February and management measures not finalized until early April. These measures are essential to conserve threatened and endangered ocean salmon stocks, and to provide for harvest of more abundant stocks. If these measures are not in place on May 1, the previous year's management measures will continue to apply. Failure to implement these measures immediately could compromise the status of certain stocks, such as the KRFC, and negatively impact international, state, and tribal salmon fisheries, thereby undermining the purposes of this agency action.

To enhance notification of the fishing industry of these new measures, NMFS is announcing the new measures over the telephone hotline used for inseason management actions and is also posting the regulations on both of its West Coast regional Web sites at http://www.nwr.noaa.gov and http://swr.nmfs.noaa.gov. NMFS is also advising the States of Washington, Oregon, and California on the new management measures. These states announce the seasons for applicable state and Federal fisheries through their own public notification systems.

This action contains collection-of-information requirements subject to the Paperwork Reduction Act (PRA), and which have been approved by OMB under Control Number 0648-0433. The public reporting burden for providing notifications if landing area restrictions cannot be met, or to obtain temporary mooring in Brookings, OR, is estimated to average 15 minutes 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 of information. Send comments regarding this burden estimate, or any other aspect of this data collection, including suggestions for reducing the burden, to NMFS and OMB (see ADDRESSES ).

Notwithstanding any other provision of the law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB control number.

Since 1989, NMFS has listed 27 ESUs of salmonids on the West Coast. As the listings have occurred, NMFS has conducted formal ESA section 7 consultations and issued biological opinions, and made determinations under section 4(d) of the ESA (Table 1), that consider the impacts to listed salmonid species resulting from proposed implementation of the Salmon FMP, or in some cases, from proposed implementation of the annual management measures.

Associated with the biological opinions are incidental take statements that specify the level of take that is expected. Some of the biological opinions have concluded that implementation of the Salmon FMP is not likely to jeopardize the continued existence of certain listed salmonid ESUs and provide incidental take statements. Other biological opinions have found that implementation of the Salmon FMP is likely to jeopardize certain listed ESUs and have identified reasonable and prudent alternatives (consultation standards) that would avoid the likelihood of jeopardizing the continued existence of the ESU under consideration, and provided an incidental take statement for the reasonable and prudent alternative.

In a March 6, 2006, letter to the Council, NMFS provided the Council with ESA consultation standards and guidance for the management of stocks listed under the ESA. These management measures are consistent with the biological opinions that find no jeopardy, with the reasonable and prudent alternatives in the jeopardy biological opinions, and with the terms of the state and Tribal RMPs.

Southern resident killer whales were recently listed as endangered under the ESA effective February 16, 2006. NMFS has initiated a Section 7 consultation regarding the effects of Council salmon fisheries on southern resident killer whales. NMFS expects to complete a ESA section 7 consultation by June 2006. In the event that the review suggests that further constraints in the 2006 fisheries are necessary, appropriate corrections will be made by NMFS through inseason action.