On October 5, 2005, Embraer S.A. applied for a type certificate for their new Model EMB-500. The Model EMB-500 is a normal category, low-winged monoplane with “T” tailed vertical and horizontal stabilizers, retractable tricycle type landing gear and twin turbofan engines mounted on the aircraft fuselage. Its design characteristics include a predominance of metallic construction. The maximum takeoff weight is 9,965 pounds, the V MO /M MO is 275 KIAS/M 0.70 and maximum altitude is 41,000 feet.

Fuel temperatures on the Embraer EMB 500 are higher than envisioned by 14 CFR part 23. The rule governing fuel system hot weather operation is 14 CFR part 23, § 23.961, and the rule requires the following:

During other airplane certification projects, the fuel system temperatures associated with the PW600 series turbofan engines were much higher than those previously encountered on other engines. The engine oil/fuel heat fuel system includes an exchanger that cools the oil and heats the fuel. Consequently, the motive flow fuel that is returned to the airplane from the engine is hot and heats the airplane wing fuel and tank. As a result, on the PW615F, the engine inlet maximum fuel temperature was increased from a development value of 126 °F (52 °C) to an initial (Transport Canada) certification value of 172 °F (78 °C) for kerosene type fuels.

Initial concerns regarding the safe operation of the airplane with fuel temperatures significantly greater than 110 °F are identified as:

• Fuel degradation with resultant byproducts at high temperatures

• Operation with the higher vapor liquid ratios

• Fuel system component qualification at the higher temperatures

• Solubility of water in fuel

• Microbial growth

• Fuel tank material/surrounding structure compatibility with the elevated temperatures

• Service and maintenance personnel susceptibility to burns

An initial review of FAA experience regarding airplane fuel temperatures identifies that for large part 25 aircraft, fuel temperature upper limits are characterized by § 25.961 values, i.e. 110-120 °F. Operationally, the buildup of vapor pockets within fuel lines has been an issue from this perspective for large transport category airplanes. A summary of the maximum engine inlet fuel temperatures for engines used in part 23 and part 25 business jet airplanes that are FAA certified follows:

CAR part 3, as amended to May 15, 1956, defined the maximum anticipated summer air temperatures in § 3.583; “The maximum anticipated summer air temperature shall be considered to be 100 °F at sea level and to decrease from this value at the rate of 3.6 °F per thousand feet above sea level.” Concurrently, § 3.438 required that “* * * fuel system features conducive to vapor formation shall be demonstrated to be free from vapor lock when using fuel at a temperature of 110 °F under critical operating conditions.” Building from CAR part 3, 14 CFR part 23 envisioned maximum fuel temperatures at or near 110 °F as set forth in 14 CFR part 23, § 23.961. The turbine fuel temperature requirement for hot weather operation is 110 −0, +5 °F, or the maximum outside air temperature for which approval is requested, whichever is more critical. Engine heat rejection such that the airplane fuel temperature is characterized by engine heat rejection rather than ambient air temperature is a new and novel design that was not envisioned by 14 CFR part 23.

14 CFR part 23 certification experience to date has shown that hot weather certification testing with 110 °F fuel temperatures is adequate for fuel system operations for fuel tank fuel temperatures characterized by ambient air temperatures including cooling as a result of the atmospheric temperature lapse rate. Heating that increases the airplane fuel system operational temperatures introduces several fuel system concerns. Each must be shown to be acceptable. Compliance by design (i.e. lack of ability to shutoff the engine motive flow) may be utilized although associated type certificate data sheet information may also be necessary to assure future system changes are compliant.

A special condition for the higher fuel system temperatures of the Embraer EMB 500 airplane was proposed. The special condition requires the compliance to 14 CFR part 23, § 23.961, fuel system hot weather operation test temperature to be commensurate with the highest fuel temperature expected at the maximum outside air temperature for which approval is requested.

Under 14 CFR part 21, § 21.17, Embraer S.A. must show that the Model EMB-500 meets the applicable provisions of 14 CFR part 23, as amended by Amendments 23-1 through 23-55, thereto.

If the Administrator finds that the applicable airworthiness regulations (i.e., 14 CFR part 23) do not contain adequate or appropriate safety standards for the Model EMB-500 because of a novel or unusual design feature, special conditions are prescribed under § 21.16.

In addition to the applicable airworthiness regulations and special conditions, the Model EMB-500 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, and the FAA must issue a finding of regulatory adequacy under § 611 of Public Law 92-574, the “Noise Control Act of 1972.”

Special conditions, as appropriate, as defined in § 11.19, are issued under § 11.38, and become part of the type certification basis under § 21.17(a).

Special conditions are initially applicable to the model for which they are issued. Should the type certificate for that model be amended later to include any other model that incorporates the same novel or unusual design feature, the special conditions would also apply to the other model under § 21.101(a).

The Model EMB-500 will incorporate the following novel or unusual design features: High Fuel Temperatures.

Notice of proposed special conditions No. 23-07-05-SC for the Embraer S.A., Model EMB-500 airplanes was published on January 23, 2008 (73 FR 3881). No comments were received, and the special conditions are adopted as proposed.

As discussed above, these special conditions are applicable to the Model EMB-500. Should Embraer S.A. apply later for a change to the type certificate to include another model incorporating the same novel or unusual design feature, the special conditions would apply to that model as well under § 21.101(a).

This action affects only certain novel or unusual design features on one model, Model EMB-500, of airplanes. It is not a rule of general applicability, and it affects only the applicant who applied to the FAA for approval of these features on the airplane.

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 type certification basis for the Embraer S.A. Model EMB-500 airplanes.

Instead of compliance with § 23.961, the following apply:

Each fuel system must be free from vapor lock when using fuel at its critical temperature, with respect to vapor formation, when operating the airplane in all critical operating and environmental conditions for which approval is requested. For turbine fuel, the initial temperature must be the highest fuel temperature expected at the maximum outside air temperature for which approval is requested.

Discussion

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to include an AD that supersedes AD 2006-18-17, amendment 39-14756 (71 FR 52999, September 8, 2006). The existing AD applies to all Boeing Model 747-400, 747-400D, and 747-400F series airplanes. That NPRM was published in the Federal Register on March 13, 2008 (73 FR 13480). That NPRM proposed to continue to require reviewing airplane maintenance records, doing repetitive inspections for cracking of the yaw damper actuator portion of the upper and lower rudder power control modules (PCMs), and replacing the PCMs if necessary. That NPRM also proposed to add a requirement to install a secondary retention device for the yaw damper modulating piston, and reduce the applicability. Installation of the secondary retention device would terminate the repetitive inspection requirements.

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

Boeing, the National Transportation Safety Board (NTSB), and Northwest Airlines (NWA) support, concur with, or have no objection to the contents of the NPRM.

Parker Hannifin Corporation, the PCM manufacturer, states that PCMs that have P/Ns 332700-1009 and 333200-1009 should have been included in paragraph (l), “Parts Installation,” of the NPRM. Parker states that Parker Service Bulletins 332700-27-166 and 333200-27-167 required the upper and lower PCMs to be marked with these part numbers as a configuration change update. Parker states that it will rescind these service bulletins. If these Parker service bulletins are not accomplished, all identification plates will remain marked as P/Ns 332700-1007 and 333200-1007, which are both P/Ns identified in paragraph (l) of the NPRM. However, Parker points out that it is possible some PCMs have already been re-identified with the-1009 P/Ns. Without including the-1009 P/Ns in paragraph (l) of this AD, these parts would not be inspected and modified in accordance with the AD. Therefore, Parker requests that we change paragraph (l) of this AD to include these additional P/Ns.

We agree with Parker that it is important to ensure that P/Ns 332700-1009 and 333200-1009 are inspected and modified. It is also important to encourage operators to consider this safety issue. These P/Ns have the same potential for failure as the P/Ns listed in paragraph (l) of the NPRM. However, we must allow time for the public to comment on each additional requirement, and adding these P/Ns to paragraph (l) of the AD would increase the scope of the AD by adding a requirement. The degree of urgency associated with the unsafe condition is such that we consider any delay to this action to be inappropriate. Therefore, we have not changed the AD in this regard; however, we will consider additional rulemaking to address P/Ns 332700-1009 and 333200-1009.

Air Transport Association (ATA), on behalf of United Airlines (UAL) requests that we re-word paragraph (j) of the NPRM for clarity. UAL indicates that the NPRM should state explicitly that it is acceptable to modify the PCM while it is installed on the airplane. UAL points out that this change would match the “Relevant Service Information” section of the NPRM.

We agree with the commenters' request to clarify this requirement. It is acceptable to modify the PCM while it is installed on the airplane. However, we understand that some operators might prefer the option to do the modification while the PCM is not installed on the airplane. Therefore, we have revised paragraph (j) of the AD to clarify that either method of modification is acceptable.

ATA on behalf of UAL, requests that we revise the AD to clearly state the correct service bulletin tasks for on-wing testing for PCMs modified on-wing, and shop-level testing for PCMs removed from the airplane. The commenters explain that the NPRM requires or refers to four documents that specify testing methods after modifying the PCM: Two component service bulletins (Parker Service Bulletins 332700-27-312 and 333200-27-314, both dated September 13, 2007), one Boeing service bulletin (Boeing Alert Service Bulletin 747-27A2479, dated November 8, 2007), and the Boeing airplane maintenance manual (AMM). The commenters state that a clarification would avoid compliance issues.

We agree that the numerous documents complicate the requirements. However, the numerous documents are necessary to provide operators with two options to modify the airplane. They can replace the existing PCM with a PCM that has a yaw damper retention device, or install the yaw damper retention device into the existing PCM on the airplane. We disagree that it is necessary to change the AD in this regard. The service information and the associated AMM sections clearly state which tests must be performed, depending on whether the PCM is replaced or modified while installed on the airplane.

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

There are about 655 airplanes of the affected design in the worldwide fleet. This AD affects about 86 airplanes of U.S. registry. The following table provides the estimated costs for U.S. operators to comply with this AD. The average labor rate is $80 per work hour.

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.

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to include an AD that would apply to the specified products. That NPRM was published in the Federal Register on March 13, 2008 (73 FR 13504). That NPRM proposed to correct an unsafe condition for the specified products. The MCAI states:

Corrective actions include revising the airplane flight manual. You may obtain further information by examining the MCAI in the AD docket.

We gave the public the opportunity to participate in developing this AD. We received no comments on the NPRM or on the determination of the cost to the public.

We reviewed the available data and determined that air safety and the public interest require adopting the AD as proposed.

We have reviewed the MCAI and related service information and, in general, agree with their substance. But we might have found it necessary to use different words from those in the MCAI to ensure the AD is clear for U.S. operators and is enforceable. In making these changes, we do not intend to differ substantively from the information provided in the MCAI and related service information.

We might also have required different actions in this AD from those in the MCAI in order to follow our FAA policies. Any such differences are highlighted in a NOTE within the AD.

We estimate that this AD will affect about 7 products of U.S. registry. We also estimate that it will take about 2 work-hours per product to comply with the basic requirements of this AD. The average labor rate is $80 per work-hour. Required parts will cost about $25 per product. Where the service information lists required parts costs that are covered under warranty, we have assumed that there will be no charge for these parts. As we do not control warranty coverage for affected parties, some parties may incur costs higher than estimated here. Based on these figures, we estimate the cost of this AD to the U.S. operators to be $1,295, or $185 per product.

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

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

We determined that this 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 this AD:

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

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

You may examine the AD docket on the Internet at http://www.regulations.gov; or in person at the Docket Operations office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains the NPRM, the regulatory evaluation, any comments received, and other information. The street address for the Docket Operations office (telephone (800) 647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt.

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to include an AD that would apply to the specified products. That NPRM was published in the Federal Register on March 13, 2008 (73 FR 13509). That NPRM proposed to correct an unsafe condition for the specified products. The MCAI states:

We gave the public the opportunity to participate in developing this AD. We received no comments on the NPRM or on the determination of the cost to the public.

We reviewed the available data and determined that air safety and the public interest require adopting the AD as proposed.

We have reviewed the MCAI and related service information and, in general, agree with their substance. But we might have found it necessary to use different words from those in the MCAI to ensure the AD is clear for U.S. operators and is enforceable. In making these changes, we do not intend to differ substantively from the information provided in the MCAI and related service information.

We might also have required different actions in this AD from those in the MCAI in order to follow our FAA policies. Any such differences are highlighted in a NOTE within the AD.

We estimate that this AD will affect about 214 products of U.S. registry. We also estimate that it will take about 5 work-hours per product to comply with the basic requirements of this AD. The average labor rate is $80 per work-hour. Required parts will cost about $887 per product. Where the service information lists required parts costs that are covered under warranty, we have assumed that there will be no charge for these parts. As we do not control warranty coverage for affected parties, some parties may incur costs higher than estimated here. Based on these figures, we estimate the cost of this AD to the U.S. operators to be $275,418, or $1,287 per product.

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

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

We determined that this 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 this AD:

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

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

You may examine the AD docket on the Internet at http://www.regulations.gov ; or in person at the Docket Operations office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains the NPRM, the regulatory evaluation, any comments received, and other information. The street address for the Docket Operations office (telephone (800) 647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt.

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to include an AD that would apply to the specified products. That NPRM was published in the Federal Register on March 31, 2008 (73 FR 16784). That NPRM proposed to correct an unsafe condition for the specified products. The MCAI states:

We gave the public the opportunity to participate in developing this AD. We received no comments on the NPRM or on the determination of the cost to the public.

We reviewed the available data and determined that air safety and the public interest require adopting the AD as proposed.

We have reviewed the MCAI and related service information and, in general, agree with their substance. But we might have found it necessary to use different words from those in the MCAI to ensure the AD is clear for U.S. operators and is enforceable. In making these changes, we do not intend to differ substantively from the information provided in the MCAI and related service information.

We might also have required different actions in this AD from those in the MCAI in order to follow our FAA policies. Any such differences are highlighted in a NOTE within the AD.

We estimate that this AD will affect about 38 products of U.S. registry. We also estimate that it will take about 3 work-hours per product to comply with the basic requirements of this AD. The average labor rate is $80 per work-hour. Required parts will cost about $34 per product. Where the service information lists required parts costs that are covered under warranty, we have assumed that there will be no charge for these parts. As we do not control warranty coverage for affected parties, some parties may incur costs higher than estimated here. Based on these figures, we estimate the cost of this AD to the U.S. operators to be $10,412, or $274 per product.

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

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

We determined that this 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 this AD:

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

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

You may examine the AD docket on the Internet at http://www.regulations.gov; or in person at the Docket Operations office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains the NPRM, the regulatory evaluation, any comments received, and other information. The street address for the Docket Operations office (telephone (800) 647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt.

The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued EASA Emergency Airworthiness Directive 2008-0085-E, dated May 6, 2008 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states:

Damaged secondary power distribution boxes could lead to loss of electrical power resulting in depressurization with loss of passenger oxygen supply and uncommanded slat retraction. You may obtain further information by examining the MCAI in the AD docket.

Dassault has issued Service Bulletin 7X-064, dated April 16, 2008. The actions described in this service information are intended to correct the unsafe condition identified in the MCAI.

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

We have reviewed the MCAI and related service information and, in general, agree with their substance. But we might have found it necessary to use different words from those in the MCAI to ensure the AD is clear for U.S. operators and is enforceable. In making these changes, we do not intend to differ substantively from the information provided in the MCAI and related service information.

We might also have required different actions in this AD from those in the MCAI in order to follow FAA policies. Any such differences are highlighted in a NOTE within the AD.

An unsafe condition exists that requires the immediate adoption of this AD. The FAA has found that the risk to the flying public justifies waiving notice and comment prior to adoption of this rule because operators must adhere to certain operational and dispatch limitations to prevent possible catastrophic situations from loss of essential buses through damage to the SPDBs. Therefore, we determined that notice and opportunity for public comment before issuing this AD are impracticable and that good cause exists for making this amendment effective in fewer than 30 days.

This AD is a final rule that involves requirements affecting flight safety, and we did not precede it by notice and opportunity for public comment. We invite you to send any written relevant data, views, or arguments about this AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2008-0641; Directorate Identifier 2008-NM-105-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this AD. We will consider all comments received by the closing date and may amend this AD because of those comments.

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

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

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

We determined that this 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 this AD:

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

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

The Departments of Commerce and the Interior (the Departments) published a document in the Federal Register on April 5, 2007 (72 FR 16712), amending their regulations governing watch duty-exemption allocations and the watch and jewelry duty-refund benefits for producers in the United States insular possessions (the U.S. Virgin Islands, Guam, American Samoa and the Commonwealth of the Northern Mariana Islands). That document inadvertently provided an incorrect formula for the calculation of the jewelry duty-refund in sections 303.15(b), 303.20(b)(1) and 303.20(b)(2). This document corrects the final regulations by revising the unit thresholds in the mid-year duty-refund benefit calculation to reflect the correct amounts. The unit thresholds are amended by replacing the amounts in sections 303.20(b)(1)(ii), (b)(1)(ii) and (b)(1)(iii) from 450,000; 600,000 and 750,000 to 3,533,334; 6,766,667 and 10,000,000, respectively. This rule also corrects the final regulations by revising the calculation and unit thresholds in the annual duty-refund benefit calculation to reflect the correct formula and amounts. The unit thresholds are amended by replacing the amounts in sections 303.20(b)(2)(ii), (b)(2)(ii) and (b)(2)(iii) from 450,000; 600,000 and 750,000 to 3,533,334; 6,766,667 and 10,000,000 respectively.

The International Trade Administration (ITA) finds good cause under 5 U.S.C. 553(b)(B) to waive prior notice and the opportunity for comment as it is impracticable and contrary to the public interest. This final rule amends the regulations governing jewelry duty-refund benefits for producers in the United States insular possessions. A previously published rule inadvertently provided an incorrect formula and unit thresholds for the calculation of the jewelry duty-refund in sections 303.15(b), 303.20(b)(1) and (b)(2). This document corrects the final regulations by revising these sections to be consistent with ITA's statutory mandate to provide duty-refund benefits as provided in Public Law 106-36 and 108-429. If this amendment is not implemented immediately, the correct formula and maximum unit thresholds would not be in place when the Departments calculate the amount of the duty-refund in July 2008. In order to have the correct formula and unit thresholds in place by the time the refund is calculated, it is necessary to implement this rule immediately.

Because a notice of proposed rulemaking and an opportunity for public comment are not required to be given for this rule under the Administrative Procedure Act or by any other law, the analytical requirements of the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) are not applicable.

This final rule does not contain collection-of-information requirements subject to review and approval by OMB under the Paperwork Reduction Act (PRA). Notwithstanding any other provision of 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 Paperwork Reduction Act unless that collection displays a valid OMB Control Number.

It has been determined that this rule is not significant for purposes of Executive Order 12866.

This rule does not contain policies with federalism implications as that term is defined in Executive Order 13132.

FDA is amending its regulations in parts 800, 801, 808, 814, 821, 860, 876, 882, 884, 886, 890, 1005, and 1010 (21 CFR parts 800, 801, 808, 814, 821, 860, 876, 882, 884, 886, 890, 1005, and 1010) to correct typographical errors and to update addresses, telephone numbers, and wording to ensure accuracy and clarity in the agency's medical device regulations.

Publication of this document constitutes final action on these changes under the Administrative Procedure Act (5 U.S.C. 553). FDA has determined that notice and public comment are unnecessary because these errors are nonsubstantive.

FDA is making changes to correct typographical and other minor errors in certain device regulations in parts 800, 801, 808, 814, 821, 860, 876, 882, 884, 886, 890, 1005, and 1010.

1. FDA is revising § 800.12(d) by removing “This information collection requirement has been approved by the Office of Management and Budget under number 0910-0150.”

2. FDA is revising § 801.420(d) by replacing “Bureau of Medical Devices and Diagnostic Products, Division of Compliance, HFK-116, 8757 Georgia Ave., Silver Spring, MD 20910” with “Office of Compliance, Division of Enforcement A, 2094 Gaither Rd., Rockville, MD 20850.”

3. FDA is revising § 808.1(d)(9) by replacing “the Radiation Control for Health and Safety Act of 1968 (Pub. L. 90-602 (42 U.S.C. 263b et seq. ))” with “Subchapter C—Electronic Product Radiation Control of the Federal Food, Drug, and Cosmetic Act (formerly the Radiation Control for Health and Safety Act of 1968).” FDA is also replacing “Atomic Energy act” with “Atomic Energy Act.”

4. FDA is revising § 814.20(b)(5) by replacing “the Radiation Control for Health and Safety Act of 1968 (42 U.S.C. 263b et seq. )” with “section 534 of Subchapter C—Electronic Product Radiation Control of the Federal Food, Drug, and Cosmetic Act (formerly the Radiation Control for Health and Safety Act of 1968).”

5. FDA is revising § 814.45(b) by replacing “515(d)(3)” with “515(d)(4).”

6. FDA is revising § 821.1(c) by replacing “501(t)(2)” with “502(t)(2).”

7. FDA is revising § 860.134(a) by replacing “513(f)(2)” with “513(f)(3).”

8. FDA is revising § 876.5250(b)(2) by replacing “subject to the limitations in § 876.9” with “the device is exempt from the premarket notification procedures in subpart E of part 807 of this chapter subject to the limitations in § 876.9.” FDA is also replacing “regulations” with “requirements of the quality system regulation.”

9. FDA is revising Subpart E of the Table of Contents of Part 882 by replacing “882.4700 Neurosurgical paddle” with “882.4700 Neurosurgical paddie.”

10. FDA is revising Subpart F of the Table of Contents of Part 882 by replacing “882.5800 Cranial electrotheraphy stimulator” with “882.5800 Cranial electrotherapy stimulator.”

11. FDA is revising the section heading in § 882.5800 by replacing “electrotheraphy” with “electrotherapy.”

12. FDA is revising § 882.5800(a) by replacing “electrotheraphy” with “electrotherapy.”

13. FDA is revising § 884.5435(b) by replacing “interlabial” with “intralabial.”

14. FDA is revising § 886.1 by adding paragraph (e) reading “Guidance documents referenced in this part are available on the Internet at http://www.fda.gov/cdrh/guidance.html .”

15. FDA is revising § 890.1 by adding paragraph (e) reading “Guidance documents referenced in this part are available on the Internet at http://www.fda.gov/cdrh/guidance.html .”

16. FDA is revising § 1005.11 by replacing “the Radiation Control for Health and Safety Act of 1968” with “Subchapter C—Electronic Product Radiation Control of the Federal Food, Drug, and Cosmetic Act (formerly the Radiation Control for Health and Safety Act of 1968).”

17. FDA is revising § 1005.25(a) by replacing “section 360(d) of the Radiation Control for Health and Safety Act of 1968 (42 U.S.C. 263h(d))” with “section 536(d) of Subchapter C—Electronic Product Radiation Control of the Federal Food, Drug, and Cosmetic Act (formerly the Radiation Control for Health and Safety Act of 1968) (21 U.S.C. 360mm(d)).”

18. FDA is revising § 1005.25(c) by replacing “section 360(d) of the Radiation Control for Health and Safety Act of 1968” with “section 536(d) of Subchapter C—Electronic Product Radiation Control of the Federal Food, Drug, and Cosmetic Act (formerly the Radiation Control for Health and Safety Act of 1968) (21 U.S.C. 360mm(d)).”

19. FDA is revising § 1010.1 by replacing “section 358 of the Radiation Control for Health and Safety Act of 1968 (42 U.S.C. 263f)” with “section 534 of Subchapter C—Electronic Product Radiation Control of the Federal Food, Drug, and Cosmetic Act (formerly the Radiation Control for Health and Safety Act of 1968) (21 U.S.C. 360kk).”

20. FDA is revising § 1010.4(a)(1) by replacing “the Radiation Control for Health and Safety Act of 1968” with “Subchapter C—Electronic Product Radiation Control of the Federal Food, Drug, and Cosmetic Act (formerly the Radiation Control for Health and Safety Act of 1968).”

The agency has determined under 21 CFR 25.30(i) that this final rule is of a type that does not individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment nor an environmental impact statement is required.

FDA has examined the impacts of the final rule under Executive Order 12866 and the Regulatory Flexibility Act (5 U.S.C. 601-612), and the Unfunded Mandates Reform Act of 1995 (Public Law 104-4). Executive Order 12866 directs agencies to assess all costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity). The agency believes that this final rule is not a significant regulatory action under the Executive order.

The Regulatory Flexibility Act requires agencies to analyze regulatory options that would minimize any significant impact of a rule on small entities. Because this rule corrects only typographical and nonsubstantive errors in existing regulations and does not change in any way how devices are regulated, the agency certifies that the final rule will not have a significant economic impact on a substantial number of small entities.

Section 202(a) of the Unfunded Mandates Reform Act of 1995 requires that agencies prepare a written statement, which includes an assessment of anticipated costs and benefits, before proposing “any rule that includes any Federal mandate that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more (adjusted annually for inflation) in any one year.” The current threshold after adjustment for inflation is $127 million, using the most current (2006) Implicit Price Deflator for the Gross Domestic Product. FDA does not expect this final rule to result in any 1-year expenditure that would meet or exceed this amount.

FDA has determined that this final rule contains no collections of information. Therefore, clearance by the Office of Management and Budget under the Paperwork Reduction Act of 1995 is not required.

FDA has analyzed this final rule in accordance with the principles set forth in Executive Order 13132. FDA has determined that the rule does not contain policies that have substantial direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. Accordingly, the agency has concluded that the rule does not contain policies that have federalism implications as defined in the Executive order and, consequently, a federalism summary impact statement is not required.

This rule updates and corrects existing regulations to ensure accuracy and clarity. This administrative action is limited to correcting typographical errors; updating changes in addresses, web site locations, and telephone numbers; and clarifying regulation terminology. It makes no changes in substantive requirements.

For the effective date of this final rule, see the DATES section of this document. Because this final rule is an administrative action, FDA has determined that it has no substantive impact on the public. It imposes no costs, and merely makes technical administrative changes in the Code of Federal Regulations (CFR) for the convenience of the public. FDA, therefore, for good cause, finds under 5 U.S.C. 553(b)(3)(B) and (d)(3) that notice and public comment are unnecessary.

On December 10, 2007, the Department of State published a Notice with request for comments to solicit views on the age eligibility requirement for au pair participants, an increase of the age limitation from 26 to 30, and whether to allow a foreign national who previously participated in the au pair program to repeat the program. A total of seven comments were received in response to the Notice. All seven comments were in favor of increasing the age requirement and permitting repeat participation. The au pair program is one of five work-based exchange opportunities available through the Exchange Visitor Program. These programs are targeted toward young adults aged 18-26. At this time, the Department believes the synergies of the program are enhanced by retaining its focus on participants in this age range.

On the other hand, as the result of repeat participation, au pair sponsors will be able to select from a larger pool of candidates. The Department has determined that an au pair who has successfully completed the au pair program may repeat program participation provided that he or she has resided outside the United States for a period of at least two years after the completion of initial participation in the au pair program (including the educational component requirement) and is within the regulatory age range for eligibility. An au pair who has previously participated is likely to be more familiar with the American culture (thereby quickly overcoming cultural challenges), is a proven successful caretaker, and will be able to build on the skills previously acquired.

The Department has determined that this Final Rule involves a foreign affairs function of the United States and is consequently exempt from the procedures required by 5 U.S.C. 553 pursuant to 5 U.S.C. 553(a)(1). Nonetheless, because of its importance to the public, the Department elected to solicit comments during a 60-day comment period.

This rule has been found not to be a major rule within the meaning of the Small Business Regulatory Enforcement Fairness Act of 1996.

Since this rulemaking is exempt from 5 U.S.C. 553, and no other law requires the Department to give notice of proposed rulemaking, this rulemaking also is not subject to the Regulatory Flexibility Act (5 U.S.C. 601, et seq.) and Executive Order 13272, section 3(b).

The Department of State does not consider this Final Rule to be a “significant regulatory action” under Executive Order 12866, as amended, § 3(f), Regulatory Planning and Review. In addition, the Department is exempt from Executive Order 12866 except to the extent that it is promulgating regulations in conjunction with a domestic agency that are significant regulatory actions. The Department has nevertheless reviewed the Proposed Rule to ensure its consistency with the regulatory philosophy and principles set forth in that Executive Order.

The Department has reviewed this Final Rule in light of §§ 3(a) and 3(b)(2) of Executive Order 12988 to eliminate ambiguity, minimize litigation, establish clear legal standards, and reduce burden.

The Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1532, generally requires agencies to prepare a statement before proposing any rule that may result in an annual expenditure of $100 million or more by State, local, or tribal governments, or by the private sector. This Final Rule will not result in any such expenditure, nor will it significantly or uniquely affect small governments.

This Final Rule will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with section 6 of Executive Order 13132, it is determined that this rule does not have sufficient federalism implications to require consultations or warrant the preparation of a federalism summary impact statement. The regulations implementing Executive Order 12372 regarding intergovernmental consultation on Federal programs and activities do not apply to this regulation.

This Interim Final Rule does not impose any new reporting or recordkeeping requirements subject to the Paperwork Reduction Act, 44 U.S.C. Chapter 35.

Pursuant to the authority granted in 33 U.S.C. 1605, the Department of the Navy amends 32 CFR Part 706.

This amendment provides notice that the Deputy Assistant Judge Advocate General (Admiralty and Maritime Law), under authority delegated by the Secretary of the Navy, has certified that USS NASHVILLE (LPD 13) is a vessel of the Navy which, due to its special construction and purpose, cannot fully comply with the following specific provisions of 72 COLREGS without interfering with its special function as a naval ship: Annex I paragraph 2(a)(i), pertaining to the height of the masthead light; Annex I paragraph 3(a), pertaining to the horizontal distance between the forward and after masthead lights; and Annex I, paragraph 2(g), pertaining to the distance of the sidelights above the hull. The Deputy Assistant Judge Advocate General (Admiralty and Maritime Law) has also certified that the lights involved are located in closest possible compliance with the applicable 72 COLREGS requirements.

Moreover, it has been determined, in accordance with 32 CFR Parts 296 and 701, that publication of this amendment for public comment prior to adoption is impracticable, unnecessary, and contrary to public interest since it is based on technical findings that the placement of lights on this vessel in a manner differently from that prescribed herein will adversely affect the vessel's ability to perform its military functions.

The Texas Department of Transportation (TXDOT) has requested a temporary deviation in order to reverse the direction of the swing span of the SR 82 Bridge across Sabine Lake at mile 9.5 between Cameron Parish, Louisiana and Jefferson County, Texas. This procedure is necessary to prevent the swing span from conflicting with the footings and columns being placed for the new replacement bridge, currently under construction. This temporary deviation will allow the bridge to remain in the closed-to-navigation position from 5 a.m. on Monday, July 7, 2008 until 5 a.m. on Saturday, July 26, 2008. During the closure period, the draw will not be able to open for emergencies. Currently, the draw opens on signal; except that, from 9 p.m. to 5 a.m., the draw opens on signal if at least six hours notice is given to the Maintenance Construction Supervisor at Port Arthur.

Navigation on the waterway consists of tugs with tows and recreational powerboats and sailboats. The bridge provides 9 feet of vertical clearance in the closed-to-navigation position. Thus, smaller recreational vessels will be able to transit through the bridge when it is closed. Tugs with tows and sailboats will not be able to pass through the bridge during this closure. An alternate route is available through the north passage into Sabine Lake from Sabine Neches Canal by Stewts Island. Due to the availability of an alternate route, it has been determined that this closure will not have a significant effect on these vessels. This closure is considered necessary for placement of the new bridge pier footers, while allowing future operation of the swing span during subsequent phases of construction.

In accordance with 33 CFR 117.35(e), the drawbridge must return to its regular operating schedule immediately at the end of the designated time period. This deviation from the operating regulations is authorized under 33 CFR 117.35.

The Meadowbrook State Parkway Bridge has a vertical clearance in the closed position of 22 feet at mean high water and 25 feet at mean low water. The existing drawbridge operation regulations are listed at 33 CFR § 117.799(h)(2).

The waterway has seasonal recreational vessels and fishing vessels of various sizes.

The Town of Hempstead, Department of Public Safety, requested a temporary deviation to facilitate a public event, the Veteran's Fireworks Display on June 28, 2008.

Under this temporary deviation, in effect between 9:30 p.m. and 11:59 p.m. on June 28, 2008, the Meadowbrook State Parkway Bridge at mile 12.8, across Sloop Channel, may remain in the closed position. Vessels that can pass under the bridge without a bridge opening may do so at all times.

In the event of inclement weather on June 28, 2008, the deviation will be in effect on June 29, 2008, from 9:30 p.m. to 11:59 p.m., as a rain date.

In accordance with 33 CFR 117.35(e), the bridge must return to its regular operating schedule immediately at the end of the designated time period. This deviation from the operating regulations is authorized under 33 CFR 117.35.

We encourage you to participate in this action by submitting comments and related materials. All comments received will be posted, without change, to http://www.regulations.gov and will include any personal information you have provided. We have an agreement with the Department of Transportation (DOT) to use the Docket Management Facility. Please see DOT's “Privacy Act” paragraph below.

If you submit a comment, please include the docket number for this action (USCG-2008-0478), indicate the specific section of this document to which each comment applies, and give the reason for each comment. We recommend that you include your name and a mailing address, an e-mail address, or a phone number in the body of your document so that we can contact you if we have questions regarding your submission. You may submit your comments and material by electronic means, mail, fax, or delivery to the Docket Management Facility at the address under ADDRESSES ; but please submit your comments and material by only one means. If you submit them by mail or delivery, submit them in an unbound format, no larger than 8 1/2 by 11 inches, suitable for copying and electronic filing. If you submit them by mail and would like to know that they reached the Facility, please enclose a stamped, self-addressed postcard or envelope. We will consider all comments and material received during the comment period. We may change this proposed action in view of them.

To view comments, as well as documents mentioned in this preamble as being available in the docket, go to http://www.regulations.gov at any time, click on “Search for Dockets,” and enter the docket number for this action (USCG-2008-0478) in the Docket ID box, and click enter. You may also visit the Docket Management Facility in Room W12-140 on the ground floor of the DOT West Building, 1200 New Jersey Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

Anyone can search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review the Department of Transportation's Privacy Act Statement in the Federal Register published on April 11, 2000 (65 FR 19477), or you may visit http://DocketsInfo.dot.gov .

The LA 46 vertical lift span bridge, located on LaLoutre Bayou at mile 22.9, in Yscloskey, St. Bernard Parish, Louisiana, has a vertical clearance of 2 feet in the closed position and 53 feet in the open position. The bridge has a horizontal clearance of 45 feet. The draw of the LA 46 Bridge opens on signal as required by 33 CFR 117.5. However, the draw of the bridge has been inoperable since August 2005 due to damage sustained during Hurricane Katrina.

Historically, the waterway at the bridge site has been transited by recreational boaters and fishing vessels. However, there has been no navigational traffic through the bridge site since it was damaged in 2005.

Repairs to the bridge have been completed and the Louisiana Department of Transportation and Development (LDOTD) will soon reopen the bridge to navigation. LDOTD has requested a change to the drawbridge operation schedule in order to make more efficient use of operating resources, while accommodating the flow of vehicular traffic.

This deviation will test the following change to the drawbridge operation schedule: The draw of the LA 46 Bridge, mile 22.9, at Yscloskey, shall open on signal; except that from 8 p.m. to 4 a.m., the draw shall open on signal if at least two hours notice is given.

A Notice of Proposed Rulemaking (USCG-2008-0478) will be issued to propose a permanent change to the schedule and obtain additional public comments. The Coast Guard will evaluate public comments from this Temporary Deviation and the above referenced Notice of Proposed Rulemaking to determine if a permanent special drawbridge operation regulation is warranted. The Coast Guard will review bridge tender logs for requested bridge openings during the time of the Temporary Deviation. Navigation is not expected to be impacted during the test schedule period.

Although this Temporary Deviation will require 2 hours advance notice for openings between 8 p.m. and 4 a.m., an alternate route, via Yscloskey Bayou, to the Mississippi River Gulf Outlet and Lake Borgne is available with no additional transit time. Additionally, most users of this waterway are able to give notice prior to transiting through the bridge. Vessels are not able to pass underneath the bridge when closed due to a vertical clearance of only 2 feet. Before the effective period, we will issue maritime advisories widely available to users of the waterway.

In accordance with 33 CFR 117.35(e), the drawbridge must return to its regular operating schedule immediately at the end of the designated time period. This deviation from the operating regulations is authorized under 33 CFR 117.35.

The Memorial (US 1) Bridge, across the Piscataqua River at mile 3.5, between Portsmouth, New Hampshire and Kittery, Maine, has a vertical clearance in the closed position of 11 feet at mean high water and 19 feet at mean low water. The existing drawbridge operation regulations are listed at 33 CFR 117.531.

The owner of the bridge, New Hampshire Department of Transportation, requested a temporary deviation to facilitate public safety during the Fourth of July fireworks display on July 3, 2008.

Under this temporary deviation the Memorial (US 1) Bridge may remain in the closed position from 9:30 p.m. to 10:30 p.m. on July 3, 2008. Vessels that can pass under the bridge without a bridge opening may do so at all times.

In accordance with 33 CFR 117.35(e), the bridge must return to its regular operating schedule immediately at the end of the designated time period. This deviation from the operating regulations is authorized under 33 CFR 117.35.

The NJTRO Lower Hack Bridge, across the Hackensack River, mile 3.4, at Jersey City, New Jersey, has a vertical clearance in the closed position of 40 feet at mean high water and 45 feet at mean low water. The existing drawbridge operation regulations are listed at 33 CFR 117.723(b).

The bridge owner, New Jersey Transit Rail Operations (NJTRO), requested a temporary deviation to facilitate scheduled maintenance, upgrades to the control system at the bridge.

The waterway has seasonal recreational vessels, and commercial vessels of various sizes. All known waterway users were advised of the requested bridge closure period and offered no objection.

Under this temporary deviation the bridge may remain closed from 7 a.m. through 5 p.m. on June 21, 2008 and June 22, 2008, with a rain date of June 28, 2008 and June 29, 2008. Vessels able to pass under the closed draw may do so at any time and vessels that must have a bridge opening may do so by providing a two-hour advance notice by calling the bridge on VHF channels 13 or 16.

In accordance with 33 CFR 117.35(e), the bridge must return to its regular operating schedule immediately at the end of the designated time period. This deviation from the operating regulations is authorized under 33 CFR 117.35.

The subcontractor on behalf of the Margate Bridge Company, who owns and operates this double-leaf bascule drawbridge, has requested a temporary deviation from the current operating regulations set out in 33 CFR 117.5 that requires the bridge to open promptly and fully for the passage of vessels when a request to open is given.

Margate Bridge, located at ICW mile 74, across Beach Thorofare at Margate, New Jersey, has a vertical clearance in the closed position to vessels of 14 feet above mean high water (MHW).

The Coast Guard reviewed the 2007 bridge logs provided by the Margate Bridge Company. The logs recorded approximately 79 vessel openings granted in October, 34 vessel openings granted in November and 4 vessel openings granted in December of last year.

Under this temporary deviation, the drawbridge will provide partial openings of the lift spans for vessels. The maintenance and repairs require immobilizing half of the draw span to single-leaf operation each day, beginning 7 a.m. on Wednesday, October 1, 2008, until and including 11:59 p.m. Wednesday, December 31, 2008, with a work barge occupying one-half of the 58-foot wide channel under the bridge, so passage through the bridge will be limited to a 29-foot width for the duration of the project. The opposite connecting span while not under repair will continue to open for vessels if at least a half-hour advance notice is given to the bridge tender at (609) 822-9175 or via marine radio on channel 13 VHF. Mariners requiring the full opening of the lift spans or the full width of the channel under the bridge will be directed to use the Atlantic Ocean as the alternate route between Absecon and Great Egg Harbor Inlets.

The Coast Guard will inform the users of the waterway through our Local and Broadcast Notices to Mariners of the partial openings of the draw span to minimize transiting delays caused by the temporary deviation.

In accordance with 33 CFR 117.35(e), the drawbridge must return to its regular operating schedule immediately at the end of the designated time period. This deviation from the operating regulations is authorized under 33 CFR 117.35.

Regulatory Information

We did not publish a notice of proposed rulemaking (NPRM) for this regulation. Under 5 U.S.C. 553(b)(3)(B), the Coast Guard finds that good cause exists for not publishing an NPRM. This safety zone was implemented for an emergency situation and required immediate activation. 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 . Delaying this rule would be contrary to the public interest of ensuring the safety of spectators and vessels during this event and immediate action is necessary to prevent possible loss of life or property.

This temporary safety zone is necessary to ensure the safety of event participants and spectators on Lake Michigan on June 21, 2008 during the re-enactment of World War II beach invasions. Establishing a safety zone to control vessel movement around the location of the re-enactment site will help ensure the safety of persons and property participating in the event as well as spectators and vessels transiting through the area.

A temporary safety zone is necessary to ensure the safety of event participants and spectator vessels. The safety zone will be enforced from 8 a.m. to 2 p.m. on June 21, 2008. The safety zone will encompass all waters of Lake Michigan in the vicinity of Tiscornia Park in St. Joseph, MI beginning at 42°06′55″ N, 086°29′23″ W; then west/northwest along the north breakwater to 42°06′59″ N, 086°29′41″ W; then northwest 100 yards to 42°07′01″ N, 086°29′44″ W; then northeast 2,243 yards to 42°07′50″ N, 086°28′43″ W; then southeast to the shoreline at 42°07′39″ N, 086°28′27″ W; then southwest along the shoreline to the point of origin.

All persons and vessels shall comply with the instructions of the Coast Guard Captain of the Port or his on-scene representative. Entry into, transiting, or anchoring within the safety zone is prohibited unless authorized by the Captain of the Port Lake Michigan or his on-scene representative. The Captain of the Port or his on-scene representative may be contacted via VHF Channel 16.

This proposed 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.

This determination is based on the minimal time that vessels will be restricted from the zone and the zone is an area where the Coast Guard expects insignificant adverse impact to mariners from the zone's activation.

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 and operators of vessels intending to transit or anchor in a portion of Lake Michigan near Tiscornia Park in St. Joseph, MI from 8 a.m. to 2 p.m. on June 21, 2008.

This safety zone will not have a significant economic impact on a substantial number of small entities for the following reasons: Vessel traffic will only be limited for 4 hours and vessels can safely transit around the safety zone. In the event that this temporary safety zone affects shipping, commercial vessels may request permission from the Captain of the Port Lake Michigan to transit through the safety zone. The Coast Guard will give notice to the public via a Broadcast to Mariners that the regulation is in effect.

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 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). The Coast Guard will not retaliate against small entities that question or complain about the rule or any policy or action of the Coast Guard.

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 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 would not result in such 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 concern an environmental risk to health or risk to safety that may disproportionately affect children.

The Coast Guard recognizes the treaty rights of Native American Tribes. Moreover, the Coast Guard is committed to working with Tribal Governments to implement local policies and to mitigate tribal concerns. We have determined that these special local regulations and fishing rights protection need not be incompatible. We have also determined that 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. Nevertheless, Indian Tribes that have questions concerning the provisions of this Rule or options for compliance are encourage to contact the point of contact listed under FOR FURTHER INFORMATION CONTACT .

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 procedure; and related management system 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)(g), of the Instruction, from further environmental documentation. This event establishes a safety zone therefore paragraph (34)(g) of the Instruction applies.

A final “Environmental Analysis Check List” and a final “Categorical Exclusion Determination” are available in the docket where indicated under ADDRESSES .

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 contrary to public interest since immediate action is necessary to ensure the safety of vessels and spectators gathering in the vicinity of the various fireworks launching barges and displays. If normal notice and comment procedures were followed, this rule would not become effective until after the dates of the events.

Under 5 U.S.C. 553(d)(3), the U.S. Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . Making this rule effective less than 30 days after publication in the Federal Register is necessary to ensure safety of the vessels and spectators gathering in the vicinity of the various fireworks launching barges and displays on the dates and times this rule will be in effect.

The U.S. Coast Guard is establishing temporary safety zones to allow for safe fireworks displays. All events occur within the Captain of the Port, Puget Sound, WA, Area of Responsibility (AOR). These events may result in a number of vessels congregating near fireworks launching barges and sites. The safety zones are needed to protect watercraft and their occupants from safety hazards associated with fireworks displays. The Captain of the Port Puget Sound may be assisted by other federal and local agencies in the enforcement of these safety zones.

This rule will control the movement of all vessels and persons in a regulated area surrounding the fireworks events indicated in this Temporary Final Rule. The safety zones do not extend on land.

The U.S. Coast Guard through this action intends to promote the safety of personnel, fireworks launching barges and sites. Entry into these zones by all vessels or persons will be prohibited unless authorized by the Captain of the Port. The Captain of the Port may be assisted by other federal, state, or local agencies as needed.

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.

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 U.S. 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 temporary rule will affect the following entities, some of which may be small entities: The owners or operators of vessels intending to transit a portion of the Puget Sound while this rule is enforced. These safety zones will not have significant economic impact on a substantial number of small entities for the following reasons. This temporary rule will be in effect for no more than 2.5 hours when vessel traffic volume is low. Traffic will be allowed to pass through these zones with the permission of the Captain of the Port or his designated representatives, and if safe to do so.

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 can better evaluate its effects on them and participate in the rulemaking process. If the rule will affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the FOR FURTHER INFORMATION CONTACT section. 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 guide 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 temporary rule is categorically excluded, under figure 2-1, paragraph (34)(g), of the Instruction, from further environmental documentation because it establishes a safety zone. A final “Environmental Check List” and a final “Categorical Exclusion Determination” will be available in the docket where indicated under ADDRESSES .

In title 40 of the Code of Federal Regulations, part 52 (§§ 52.01 to 52.1018), revised as of July 1, 2007, on page 250, in § 52.229, in paragraph (c), in the first sentence, remove the word “anderfere” and replace it with the words “and no analysis has been presented to show that this rescission will not interfere”.

In title 40 of the Code of Federal Regulations, parts 72 to 80, revised as of July 1, 2007, on page 604, in § 79.68, paragraph (f)(5)(vii) is reinstated to read as follows:

Section 101(a)(5)(A) of the MMPA (16 U.S.C. 1361 et seq. ) directs the Secretary of Commerce (Secretary) to allow, upon request, the incidental, but not intentional taking of small numbers of marine mammals by U.S. citizens who engage in a specified activity (other than commercial fishing) within a specified geographical region if certain findings are made and regulations are issued.

An authorization will be granted for periods of 5 years or less if the Secretary finds that the taking will have a negligible impact on the species or stock(s) and will not have an unmitigable adverse impact on the availability of the species or stock(s) for taking for subsistence uses, and if regulations are prescribed setting forth the permissible methods of taking and other means of effecting the least practicable adverse impact (i.e., mitigation) the requirements pertaining to the monitoring and reporting of such taking.

NMFS has defined “negligible impact” in 50 CFR 216.103 as “an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.”

On February 28, 2005, NMFS received an application from MMS (MMS, 2005a) requesting, on behalf of the offshore oil and gas industry, authorization under section 101(a)(5)(A) of the MMPA to take marine mammals by harassment incidental to explosive severance activities at offshore oil and gas structures in the GoM outer continental shelf (OCS). Except for certain categories of activities not pertinent here, the MMPA, 16 USC 1362(18)(A), defines “harassment” as:

During exploration, development, and production operations for mineral extraction in the GoM OCS, the seafloor around activity areas becomes the repository of temporary and permanent equipment and structures. In compliance with OCS Lands Act (OCSLA) regulations and MMS guidelines, operators are required to remove or “decommission” seafloor obstructions from their leases within one year of lease termination or after a structure has been deemed obsolete or unusable. To accomplish these removals, it is necessary to (1) mobilize necessary equipment and service vessels, (2) prepare the decommissioning targets (e.g., piles, jackets, conductors, bracings, wells, pipelines, etc.), (3) sever the target from the seabed and/or sever it into manageable components, (4) salvage the severed portion(s), and (5) conduct final site-clearance verification work.

There are two primary methodologies used in the GoM for cutting decommissioning targets; nonexplosive and explosive severance. Nonexplosive methods include abrasive cutters (sand and abrasive-water jets), mechanical cutters (e.g., carbide or rotary), diamond wire cutting devices, and cutting facilitated by commercial divers using arc/gas torches. Though relatively time-consuming and potentially harmful to human health and safety (primarily for diver severances), nonexplosive-severance activities have little or no impact on the marine environment and would not result in an incidental take of marine mammals (MMS, 2005b (the MMS Final PEA)). A description of non-explosive severing tools and methods can be found in both MMS, 2005a; and MMS, 2005b (see ADDRESSES ).

Explosive-severance activities use specialized charges to achieve target severance. Severance charges can be deployed on multiple targets and detonated nearly simultaneously (i.e., staggered at an interval of 900 msec), effecting rapid severance. Coupled with safe-handling practices, the reduced “exposure time” and omission of diver cutting also makes explosive severance safer for offshore workers. However, since the underwater detonation of cutting charges generates potentially damaging pressure waves and acoustic energy, explosive-severance activities have the potential to result in incidental take of nearby marine mammals. For this reason, MMS has requested an incidental take authorization governing explosive-severance activities conducted under OCSLA structure decommissionings.

Decommissioning operations conducted under OCSLA authority can occur on any day of a given year. Operators often schedule most of their decommissionings from June to December (approximately 80 percent) to take advantage of the often calm seas and good weather and the time period when structure installations tend to decrease.

Depending upon the target, a complete decommissioning operation may span several days or weeks, of which only a few seconds is actually attributed to the explosive-severance activity or “detonation event” for most removal targets (even those with multiple severances) because of charge staggering. For complex targets or in instances where the initial explosive-severance attempts are unsuccessful, more than one detonation event may be necessary per decommissioning operation. Even though hours or days may pass to allow for necessary mitigation measures and redeployment of new charges, each detonation event would similarly last only for a few seconds.

During the 10-year period from 1994-2003, there were an average of 156 platform decommissionings per year, with over 60 percent involving explosive-severance activities (see Table 4 in MMS, 2005a). In addition to historical activity averages, many of the older, nominally-producing structures in the mature GoM oil fields are nearing decommissioning age; this will result in an increase in removal operations in future years. Despite advancements in nonexplosive-severance methods and the additional requisite marine protected species mitigation measures, MMS expects explosive-severance activities to continue for at least 63 percent of all platform removals for the foreseeable future. (See Appendix A of MMS; Final PEA for additional forecasting information).

In addition to platform removals, based upon a review of the historical trends, industry projections, and recent forecast modeling, MMS estimates that between 170 and 273 explosive well-severance activities would occur annually over the next 5 years (see Table 7 in MMS' MMPA Application).

On April 7, 2006 (71 FR 17790), NMFS published a proposed rule on the taking of marine mammals incidental to offshore structure removals. During the 30-day public comment period on the proposed rule, comments were received from the Marine Mammal Commission (Commission), the Gulf Restoration Network (GRN), the American Petroleum Institute and the National Ocean Industries Association (API/NOIA), LIS Energy Services (LIS), Offshore Operators Committee, DEMEX, Newfield Exploration Company, and Explosive Service International. The comments of these organizations and the specific recommendations by the Commission are addressed next.

Comment 1: The GRN notes that the Government Accounting Office (GAO) found that 192 of 570 OCS oil and gas structures were removed by non-explosive methods between 1987 and 1992. GRN believes that serious consideration of the use of non-explosive removal techniques would eliminate potential negative impacts to marine mammal populations and should be required before companies are allowed to use explosive techniques.

Response: The use of non-explosive methods for offshore oil-and-gas structure removals was fully discussed in MMS' Final PEA and cited supporting documentation on this matter. MMS determined that, between 1994 and 2003, an average of 156 platforms were removed annually. Of that total, on average 58 platforms were removed annually by non-explosive methods (37 percent). While NMFS encourages operators to use non-explosive methods whenever feasible and practical, NMFS and MMS recognize that the use of nonexplosive methods leads to greater human health and safety concerns, primarily because (1) divers are often required (for torch/underwater arc cutting), (2) more personnel are required to operate cutting equipment (increasing the risk of injury), (3) lower success rates require that additional cutting attempts be made, and (4) cutters can only sever one target at a time, taking on average 30 minutes to several hours for a complete cut. Considering the low level of impact on affected marine mammal stocks by this activity and the inherent safety risk of using non-explosive methods, NMFS has determined that the structure removal operator needs the flexibility to determine the best method for a structure-removal operation.

Comment 2: The GRN states that the GAO found that the costs and benefits of these alternative methods of removal had not been adequately studied and that the MMS may have encouraged the use of explosives as the preferred method of removal.

Response: In response to a requirement in NMFS' 1995 rulemaking on this matter (60 FR 53753, October 17, 1995), MMS contracted for a study to be conducted on the operational and socioeconomic impacts of non-explosive removal of offshore structures. The information in that report (Twachtmann Synder and Byrd and Center for Energy Studies, 2003) was subsequently incorporated into the MMS PEA. A copy of that report is available via written request to NMFS (see ADDRESSES ) or on MMS' website at: http://www.gomr.mms.gov/PDFs/2004/2004-074.pdf .

Comment 3: While the Commission supports NMFS' preliminary determinations and supports the various proposed mitigation and monitoring activity scenarios, the Commission recommends NMFS clarify the apparent discrepancies between the numbers and species of animals requested by MMS to be taken by Levels A and B harassment versus the numbers and species proposed to be authorized by NMFS in its preamble to the proposed rule and in the proposed rule itself. NMFS estimates that one bottlenose dolphin would be taken by Level A harassment and up to 457 marine mammals of 28 species by Level B harassment. This differs from MMS' request for 5 bottlenose dolphins, one Atlantic spotted dolphin and one pantropical spotted dolphin by Level A harassment over the 5-year period of the proposed regulations and up to 457 marine mammals annually of the following species by Level B harassment: 227 bottlenose dolphins, 65 Atlantic spotted dolphins, 77 pantropical spotted dolphins, 27 Clymene dolphins, 12 rough-toothed dolphins, 14 striped dolphins, 15 melon-headed whales, 10 pilot whales, 5 spinner dolphins, 3 Risso's dolphins, and 2 sperm whales.

Response: NMFS has amended the preamble to this document and the regulations to conform with the request of the MMS, which is based on a clear analysis for projected incidental harassment takes provided in its application.

Comment 4: The Commission recommends that NMFS evaluate and discuss the potential for cumulative indirect effects on marine mammals that could result from the disturbance of hazardous substances that accumulate around production platforms. Disturbance of sediments during decommissioning may release these hazardous substances into the water column where they could enter and potentially affect the food chain up to top-level predators, including marine mammals.

Response: The disturbance of sediments during decommissioning activities is discussed in the MMS' Final PEA on structure removals. The MMS Final PEA notes that resuspension of sediments would be limited in both time and space (24 hr for a water column 4 m (13 ft) off the bottom and above, and 7-10 days for the water layer contained in the first 4 m (13 ft) off the seafloor). Resuspension of sediments would extend about 1000 m (3281 ft) away from the structure. The MMS Final PEA notes:

For cumulative impacts, that document states:

Based on the information in the MMS Final PEA, NMFS believes it very unlikely that there will be significant cumulative effects from resuspension of bottom sediments due to explosive structure removals on marine mammals.

Comment 5: The API/NOIA note that the “safe” peak pressure level to avoid physical injury recommended by Ketten (1995) is 100 psi (237 dB re 1 microPa, or about 212 dB re 1 microPa 2 -s). The preamble to the proposed rule states that Level A harassment is assumed to occur at an energy flux density value of 1.17 in-lb/in 2 (which is about 205 dB re 1 microPa 2 -s). There appears to be a discrepancy in the dB values quoted as “safe” versus that at which Level A harassment occurs.

Response: Estimating impacts to marine mammals from underwater detonations is difficult due to complexities of the physics of explosive sound under water and the limited understanding with respect to hearing in marine mammals. Compounding to the difficulty, NMFS understands that Ketten (1995) contains air-to-water conversion errors. For injury, NMFS uses two criteria: eardrum rupture (i.e., tympanic membrane [TM] rupture) and onset of slight lung injury, whichever is more conservative. In most cases, TM rupture is more likely at lower pressures and is used for this action to indicate the onset of injury. The threshold for TM rupture corresponds to a 50 percent rate of rupture (i.e., 50 percent of animals exposed to the level are expected to suffer TM); this is stated in terms of an energy flux density (EFD) value of 1.17 in-lb/in 2 (approximately 205 dB re 1 Pa 2 -s). This recognizes that TM rupture is not necessarily a serious or life-threatening injury, but is a useful index of possible injury that is well-correlated with measures of permanent hearing impairment (e.g., Ketten (1998) indicates a 30 percent incidence of permanent threshold shift [PTS] at the same threshold). Ketten (1998) also found that peak blast overpressures of 1,034 kPa (150 psi) were associated with 50 percent tympanic membrane rupture. Based on the incidence of eardrum rupture in sheep exposed to underwater explosions by Richmond et al. (1973), Craig (2001) estimated that 50 percent tympanic membrane rupture would occur at an energy flux density of 1.17 in-lb/in 2 (about 205 dB re 1 microPa 2 -s). While this latter criterion is more conservative than the 100 psi (237 dB re 1 Pa) derived by Ketten (1995), it was used in the WINSTON CHURCHILL ship shock trial Final EIS as the criterion for auditory injury, and is used by MMS and NMFS in this action based on the CHURCHILL findings (see 66 FR 22450, May 4, 2001).

Comment 6: The API/NOIA note that MMS and NMFS are adopting “without modification” NMFS' acoustic criteria (for explosives) because they are conservative. To confirm the conservative nature of these values, they are contrasted in the same paragraph with much higher values reported by Finneran et al. (2003) for experimental exposures of a single bottlenose dolphin. This adoption of “conservative” criteria becomes compounded by other conservative assumptions used in subsequent discussions.

Response: NMFS agrees that the dual criteria of a 12-psi peak pressure and a received energy greater than 182 dB re 1 microPa 2 -s within any 1/3-octave band are conservative. The research mentioned by API/NOIA (Finneran et al. , 2003) was completed after the Navy released the WINSTON CHURCHILL Final EIS and MMS finished modeling the impacts from explosives on marine mammals (incorporated into the MMS Draft PEA). Therefore, unavailable for use without incurring a significant delay by MMS in completing the Final PEA. NMFS intends to utilize any new empirical research prior to renewal of these new 5-year regulations.

Comment 7: The API/NOIA notes that NMFS' conservative criteria derive from open water detonations of a 10,000 lb charge in open water used for the WINSTON CHURCHILL shock trial. “Conservative” safety zones based on the CHURCHILL shock trial and propagation models based on similar charge weight and placement assumptions for structure removals, grossly overestimates impacts from structure removal activities (which are much smaller charges).

Response: NMFS disagrees. The criteria used to determine the safety zones for the WINSTON CHURCHILL shock trial safety zones were the same criteria used for the structure removal program; however, the safety zones established for each activity were based on their respective explosive weight (10,000 lbs (4536 kg) for the CHURCHILL shock trial versus less than 500 lbs (227 kg) for this action). In the shock trial program, the Navy uses its REFRMS model to estimate zones of impact while MMS used the UnderWater Calculator (UWC), which is a verified model that predicts the detonation pressure/energy propagation resulting from underwater detonations, that is capable of propagation modeling for explosives contained within pipes of varying diameters and wall thicknesses. The integration of the UWC model with Marine Acoustics Inc.'s Acoustic Integration Model (AIM) made it possible to perform comprehensive, 3-dimensional modeling of the effects of explosive-removal activities on marine mammals. For more information, please refer to Chapter 4 of the MMS Final PEA.

The Navy recently released a new Draft EIS for the shock trial of the USS MESA VERDE (for a copy go to http://www.mesaverdeeis.com ), which contains slightly modified explosives criteria based on explosives research completed since the WINSTON CHURCHILL Final EIS was released. These new criteria may be used by MMS and NMFS in future explosive removal regulations.

Comment 8: The API/NOIA asks for the source of the criterion for Level A harassment definition as tympanic membrane rupture and lung hemorrhage in a 27 lb. (12.2 kg) dolphin calf. How did this criteron become adopted by NMFS?

Response: As noted in the MMS Final PEA (page 103-104), the source for the calf criterion is Young (1991). Young used the results from experimental data on terrestrial animals to develop a computer simulation model for determining the region of injury to marine mammals subjected to an underwater explosion. For a 50-lb (22.7 kg) explosive charge, the model's contour plot indicated that slight injury could occur 936 ft (285.3 m) and 1,352 ft (412.1 m) from the explosion in open water for an adult and calf bottlenose dolphin, respectively. Because the more conservative criterion was for the calf, that was the criterion used. This reference was first cited for offshore structure removals in API's 1995 application for taking marine mammals incidental to this activity.

Comment 9: DEMEX recommends that sound energy flux and sound pressure level (SPL) should be referenced in their common scientific format of units (i.e., decibels, dB). For example, Level A harassment should be stated as: an energy flux density of above 205 dB re 1 microPa 2 -sec in any 1/3 octave band and Level B harassment is an EFDL (energy flux density level) above 182 dB re 1 microPa 2 -sec in any 1/3 octave band. Both are unnecessary as SPL is an inherent component of the Energy Flux Density. SPLs are an instantaneous reference and do not reflect intensity or duration. EFDL values readily give a true description of the sound event and potential harm that may be caused.

Response: NMFS believes that the EFDL concept is unfamiliar to many of the reviewers of underwater acoustics authorizations under the MMPA. Accordingly, NMFS has provided both SEL and SPL units where possible.

Comment 10: DEMEX notes that the proposed rule does not have a provision to handle emergency situations such as for human safety and weather. DEMEX recommends a provision within the rule that would allow detonation of an explosive device because of weather or safety to personnel, and even leaving the project with explosives still on location.

Response: Leaving the charge unexploded in place is unlikely to result in the taking of marine mammals so a provision in NMFS' regulations is not necessary. The regulations do not allow for the take of marine mammals incidental to use of explosives absent the necessary mitigation and monitoring requirements. The industry did not provide documentation during the public comment period on the NMFS Notice of Receipt on this action or on the MMS PEA substantiating that an exception, due to weather or safety, was necessary. Since industry has not provided any information on the processes, conditions, or protocols by which “emergency detonation” should be allowed, NMFS has determined that exceptions to required mitigation and monitoring are not warranted at this time.

Comment 11: DEMEX notes that the proposed rule does not have a provision for shooting internal strings within oil wells. DEMEX believes that small scale shooting of internal strings will not have any effect on the environment. However, this particular process is used during plugging and abandonment (P&A) activities that are not governed by the proposed regulations.

Response: Since P&A activities related to “downhole” casing work or perforation guns generally employ very small charges detonated several dozen to hundreds of feet below the mudline, NMFS does not believe that the activity will have an impact on marine mammals or result in incidental take. Therefore, the activities need not be governed by these regulations. However, if any P&A activities involve the explosive severance of internal strings as it relates to a subsequent conductor or well-stub severance, they may occur close enough to the mudline and utilize enough explosives to have the potential to harm marine mammals. In these cases, MMS' environmental review procedures for structure removal permit applications or Applications for Permit to Modify (APMs) for P&A work are designed to analyze the severance activities and proscribe the appropriate level of mitigation measures for marine protected species.

Comment 12: DEMEX asks who is required to have an LOA? Is it the structure operator, the primary removal contractor, the explosives contractor, or some combination of these? API/NOIA recommends that as a practical matter it would be prudent to require that the person-in-charge of explosive operations have a copy of the appropriate LOA available for inspection on site.

Response: An LOA should be held by either the company responsible for the offshore structure or the contractor hired by the company to remove the structure. However, the entity holding the LOA needs to have onsite representation to ensure that the requirements of the LOA and these regulations are carried out.

Comment 13: DEMEX notes that Table 2 (in the preamble of the proposed rule) for the Small Blasting Category, >10-20 lbs, BML (Below Mudline) is a B1 & B2 Scenario which requires a helicopter survey. DEMEX believes it would be more of an incentive for explosive shaped charges if the helicopter survey was not required.

Response: The MMS and NMFS protected species scientists determined that aerial surveys would be necessary to ensure protection, to the maximum extent practicable, of marine mammals and sea turtles for all scenarios using explosives greater than 10 lbs (4.5 kg) BML. The impact zone for the B1 and B2 Scenarios (10-20 lbs/4.5-9.1 kg) is 373 m (1,224 ft), an additional 112 m (367 ft) beyond the 261 m (856 ft) impact zone projected for charges less than 10 lbs. This information was presented to participants at the Explosive-Severance Mitigation Workshop hosted by MMS' GoM Region in May 2004. MMS incorporated this mitigation measure into its Draft PEA and its MMPA application, both of which were released for public review and comment. As DEMEX did not raise significant concerns regarding this issue at either the 2004 workshop or during the comment periods for the Draft PEA, and NMFS' notice of receipt of MMS' application, NMFS does not believe a modification at this stage of the action is warranted until improved survey techniques are proposed and/or additional acoustic data is collected.

Comment 14: The API/NOIA states that under the proposed regulations, many important requirements for individual explosive removal activities will be specified in LOAs. This approach offers great flexibility in tailoring requirements to conditions unique to individual or classes of activities; however, it also underscores the need to address concerns discussed previously by the industry.

Response: Requirements for the mitigation, monitoring and reporting the effects of explosive removal of offshore structures are contained in the regulations, not in the LOAs. The appropriate mitigation and monitoring requirements have been standardized depending upon a number of factors. As a result, NMFS does not believe that it is necessary to repeat this information in LOAs.

If an operator desires a variance from the regulations in its LOA application, it must provide information in its LOA application (or a revision to the original application) supporting that variance and analyzing impacts of that change. LOA modifications may require a 30-day public review and comment period prior to issuance of an LOA. As a result, applicants would need to provide sufficient time for this review before undertaking the activity.

Comment 15: The API/NOIA believes that further clarification of the phrase “cooperate with NMFS and any other Federal, state or local agency monitoring the impacts of the activity on marine mammals” is needed. Also this requirement should be limited to agencies with appropriate regulatory authority and should acknowledge the responsibility of the operator for the safety of the operations and personnel engaged in or observing such operations.

Response: This concern has been raised in other regulatory actions previously. As a result, NMFS has recently modified the “cooperation” requirement to clarify that it is limited to Federal, state, or local agencies with regulatory authority over the subject activity. It is unnecessary for NMFS to make any statements in regard to who is responsible for operational safety concerns.

Comment 16: The GRN states that the requirement for the use of shipboard visual observers is not sufficiently protective of whales. Submerged whales are not very visible at the surface. This is particularly true of sperm whales, which may dive for up to two hours, but routinely dive between 30 and 60 minutes. Under these circumstances, the use of visual observers is potentially ineffective in avoiding impacts. In order to ensure that impacts to whales, particularly sperm whales, are minimized, visual monitoring of an impact zone must be coupled with passive acoustic monitoring (PAM) systems.

Response: In addition to shipboard monitoring, aerial monitoring and PAM are required in slope waters where sperm whales and several other deep-diving marine mammals are more likely to be found than in shelf waters. In shelf waters, where bottlenose and spotted dolphins predominate, PAM is not a requirement, but aerial monitoring is required for all detonations greater than 10 lbs (4.5 kg).

Comment 17: The API/NOIA and DEMEX note that it is very difficult to identify species or to determine ranges and direction to those animals by use of passive acoustics. The detection is of no practical value for protecting these animals if their proximity to impact zones cannot be determined. Therefore, it is premature to require deployment of such a developmental tool. The problems associated with its use include: (1) inability to determine direction of the marine mammal's location, (2) inability to determine distance to the marine mammal, (3) passive acoustics only work when the marine mammal is vocalizing, and (4) there are no NMFS-approved acoustic monitoring instruments or operators.

Response: Despite the identification, range, and bearing limitations, PAM surveys would be able to indicate if a vocalizing marine mammal is in the vicinity of the severance activities; therefore, used in conjunction with simultaneous surface and aerial observations, PAM will assist the observers and focus their attention for possible sightings.

Comment 18: The Commission recommends NMFS encourage the MMS, in cooperation with the industry and acoustic consultants, to continue to collect on-site data from explosive severance activities for comparison with, and verification of, model predictions of the impacts of explosive severance activities.

Response: The MMS has a new acoustic measurement program approved through their Technology Assessment & Research (TA&R) Program. Information on the project can be found at: http://www.mms.gov/tarprojects/570.html . The MMS expects to conduct the measurement activities during future decommissioning season(s). Data recorded during the on site exercises will be used for verification of existing models and similitude equations, which will be essential for improving future mitigation measures.

Comment 19: Industry representatives (API/NOIA/DEMEX) state that the UWC has not been calibrated against field measurements of acoustic and pressure emissions from actual structure removal detonations. Based on limited on site data collected by Connor and MMS, it appears that the UWC overestimates the distances from detonations at which acoustic and peak pressure limits are reached by at least 4 times. Safety zones based on the UWC are thus extremely conservative and may have the effect of diluting the intensity of the monitoring in the much smaller areas where the real impacts could occur. Though NMFS discounts these and other in-situ measurements due to imprecise location or malfunction, industry feels they represent the best available “affirmation” that the UWC greatly overestimates impact ranges in the far field by a factor of three or more. Future field measurements should be integrated into the model as they become available.

Response: The impact ranges developed using the UWC were discussed at the 2004 Explosive-Severance Mitigation Workshop and are contained in MMS' Final PEA. As detailed in the MMS' PEA, Appendix E (Page E-4), MMS utilized in-situ data collected from TAR Project No. 429 to help verify that the UWC could be used for incorporating the attenuation effects for BML detonations. It also determined that the impact ranges projected by the UWC were conservative and would be highly-protective for marine mammals and sea turtles when used in survey mitigation parameters. NMFS does not agree that monitoring effectiveness will be diluted with the establishment of these conservative monitoring zones. Monitoring zones range from 261 m (856 ft) for very small charges up to 1528 m (5012 ft) for large specialty charges. With monitoring times for the stationary surface observer(s) ranging from 60-180 minutes and for the aerial survey of 30-90 minutes, NMFS believes that all impact zones will be adequately monitored prior to detonation.

New measurement activities under TAR Project No. 570 will help provide additional data that MMS hopes to use for subsequent calibration of the UWC. The in-situ testing will provide additional data that MMS hopes to use for subsequent calibration of the UWC. However, at the present time, MMS has not been able to secure assistance from industry or any volunteered “targets of opportunity.”

Comment 20: The API/NOIA note that past efforts to measure detonation effects are not considered while criteria derived from the CHURCHILL shock trial and results of the UWC are embraced. The appearance is that the UWC has been used to apply theoretical propagation calculations to the CHURCHILL criteria to produce estimated impact zones several times larger than those based on actual measurements-in favor of overly conservative impact zones derived from theory (UWC) and improper application of the CHURCHILL criteria to structure removal detonations. This in turn has led NMFS to attach monitoring requirements beyond what is necessary. Additional in-situ measurements are needed before models such as the UWC can be treated as credible. The commenters state that industry has been willing to provide “targets of opportunity” for such measurements and will doubtless continue to do so.

Response: Please see response to comment 19.

Comment 21: API/NOIA note that NMFS proposes to make any future take authorization from explosive removal activities contingent on additional in-situ measurements of explosive decommissionings. This contingency does not make clear which entity (MMS, NMFS, or the regulated community) is responsible for conducting such measurements. It is also unclear what kinds of measurements are expected, what acceptance criteria will be used by NMFS or what purpose they will serve.

Response: See previous responses regarding the TAR program. Information on the project can be found on MMS' website ( ). MMS conducted measurement activities during the 2007 decommissioning season. Data recorded during the in-situ exercises will be used for verification of existing models (including the UWC) and similitude equations, which will be essential for improving future mitigation measures. Therefore, MMS (the petitioner) is already working to meet this requirement.

Comment 22: The API/NOIA believe that a requirement to use helicopters “running standard low-altitude search patterns” is unclear. Reference to an intended procedure or definition should be provided. Is there a specified aerial flight survey “grid pattern” found in NMFS' observer guidelines?

Response: NMFS believes that the helicopter grid pattern described in the proposed rule and this final rule provide sufficient detail. The NMFS observer who will participate in each aerial survey will be able to provide more information regarding the grid pattern.

Comment 23: DEMEX notes that there should be some flexibility in the number of observers on a project. The size and scope of the project as well as the living-space and other logistical issues should all be considered. DEMEX recommends one observer for the surface surveys and one observer for the aerial survey. If possible, the surface survey observer could join the aerial observer for that portion of the observation. LIS recommends observers for all charges over 20 lbs (9.1 kg).

Response: The number of observers is based on a number of variables such as size of charge, depth of water, etc. A minimum of two observers is necessary to provide enough coverage to conduct both the surface survey and the aerial monitoring. The minimum number of observers could be increased by the NMFS Platform Removal Observer Program (PROP) Manager to accomodate the size and scope of larger projects.

Comment 24: The API/NOIA believe that justification is warranted for requiring two teams of observers (3 observers in each team). It is also not clear what constitutes a “team.” Is it meant to describe two groups of three observers (one each for surface, aerial and acoustic monitoring)? If so, why, if the observations are only allowed during daylight hours in favorable weather, or does one team comprise a surface and an aerial observer and the other an acoustic observer? These uncertainties should be clarified, consistent with industry's position that (passive) acoustic monitoring has not yet been demonstrated to be practical for operational applications. As a practical matter it is often disruptive, costly and potentially unsafe to accommodate unnecessary personnel in a working marine environment.

Response: NMFS believes that the proposed rule warrants clarification on this matter. Generally, two observers will be assigned to each operation for detection survey duties. However, because certain mitigation scenarios (C2, C4, D2, D4, E2, and E4), which are described later in the preamble to this rule, require implementation of an acoustics monitoring program, a minimum of three observers for the simultaneous surface, aerial, and acoustic surveys will be required. There is no requirement for multiple “teams” to be deployed.

In the proposed rule (71 FR 17790, April 10, 2006) and later during the Endangered Species Act (ESA) Section 7 consultation, it was determined that two NMFS observers would perform marine protected species detection surveys for those scenarios taking place in waters greater than 200 m (656 ft). For scenarios in waters greater than 200 m (656 ft), at least 3 observers are needed for simultaneous surface, aerial, and acoustic monitoring. The PROP Manager will determine if additional observers are required to compensate for the complexity of severance activities or structure configuration. As previously discussed, since PAM requirements remain in this Final Rule, operators covered by an LOA under this rule will have to work with the NMFS PROP Manager to ensure that the logistics for their removal operations can accommodate the required number of observers.

Comment 25: DEMEX asks whether nighttime observations are going to be required as they were under the 1995 Biological Opinion (BiOp) and Incidental Take Statement (ITS)?

Response: Those requirements in the 1995 ESA BiOp and ITS were determined to be ineffective due to limitations on visibility. Therefore, nighttime observations are no longer required.

Comment 26: Some industry representatives (API/NOIA, DEMEX) believe there is too much confusion regarding the definition of daylight and dawn which will cause difficulties in the field. Previous rules and regulations allowed the detonation 1 hour after dawn. If the proposed rule means that the 90-minute surface survey would begin 1 hour after dawn, followed by a 30-minute aerial survey, that would mean it would be over 3 hours after dawn before explosives could be detonated. DEMEX believes it would be much more practical to conduct surface and aerial surveys during daylight hours beginning at dawn and concluding at least one hour before sunset. (Dawn and sunset conventionally refer to times when the upper edge of the disk of the sun is on the horizon, considered unobstructed relative to the location of interest.) This schedule would allow detonations to occur no later than one hour before sunset.

Response: All pre-detonation surveys will be restricted to daylight hours as defined by “legal sunrise” to “legal sunset” (conventionally referred to as the time when the upper edge of the disk of the Sun is on the horizon (as determined by the NMFS onboard observer)) to ensure that the operator can easily confirm these times. Therefore, the time periods for pre-detonation surveys outlined in this rule cannot begin until legal sunrise and all detonations must be concluded so that post-detonation surveys can be completed by legal sunset.

Comment 27: The API/NOIA believe the statement in the proposed rule that “surface surveys are to be conducted during daylight hours only” is vague.

Response: See previous response.

Comment 28: DEMEX asks whether a project can be halted because of the unavailability of observers?

Response: Observers are necessary components of the mitigation requirements for lawful incidental take of marine mammals and compliance with these regulations and LOAs issued thereunder (as well as for sea turtles under the BiOp and ITS). Because the previous ESA requirements relating to the 48-hr pre-detonation monitoring have been eliminated, the NMFS PROP program manager does not foresee a problem related to the availability of personnel. However, if NMFS observers are unavailable, a project will be temporarily halted until observers are onsite.

Comment 29: DEMEX notes that the proposed rule requires observers to conduct a 90-minute surface survey prior to a severance-charge detonation. DEMEX recommends detonation times should be 90 minutes after dawn up until 1 hour before sunset.

Response: As pre-detonation surveys are restricted to daylight hours (as defined by “legal sunrise” to “legal sunset”), and as vessel surveys may take as long as 150-180 minutes to complete for large and specialty charges, the suggestion to limit pre-detonation surveys to 90 minutes would not provide an acceptable monitoring period for these large charges.

Comment 30: DEMEX notes that the proposed rule states that: (1) detonation operations “cannot begin until the requisite surface monitoring survey has been completed,” and (2) post-post-detonation aerial monitoring surveys must be conducted “within 2-7 days after detonation activities have been concluded.” DEMEX recommends the 30-minute aerial survey be done at the same time as the surface monitoring to allow blasting to commence 90 minutes after dawn. DEMEX opposes having the usable blasting daylight hours become less than they already were in the previous regulations.

Response: Aerial surveys are to commence at the conclusion of the surface monitoring because (1) one of the surface observers will have to accompany the helicopter pilot and (2) the observation work is to be conducted afterward (and not concurrently) to improve the overall effectiveness of detection prior to detonation. Reference to “within 2-7 days after detonation activities have concluded” relates to Post-Post-Detonation Aerial Monitoring Surveys and not the standard Pre-Detonation Aerial Monitoring Surveys.

Comment 31: One requirement forbids initiation of aerial surveys until the surface monitoring surveys have been completed. If two or more observers are available, this appears to be a counterproductive restriction. Industry representatives (API/NOIA) recommend amending the rule to permit aerial surveys to begin at any time and to conclude no earlier than when final clearance to detonate charges is given by the observer team. The duration of aerial surveys, of course, would still be consistent with the times given in the relevant table.

Response: See response to comment 30.

Comment 32: The API/NOIA note that “post-post-detonation” aerial surveys are to be conducted 2-7 days after the decommissioning charges are detonated. In the many years that these surveys have been conducted, there has never been a sighting of a dead or injured animal. Frequently changing winds and currents make it nearly impossible to determine the direction and distance a dead or injured animal may have been carried since the detonation occurred. Representatives of the industry (API/NOIA, DEMEX and LIS) believe the 2-7 day aerial survey should be reconsidered.

Response: Although there were prior opportunities to raise and discuss these concerns (e.g., the 2004 Explosive- Severance Mitigation Workshop and the comment period on MMS' Draft PEA), the commenters did not raise them before or suggest alternatives. Absent additional information, NMFS believes there is merit to continuing the post-post detonation monitoring. The fact that these surveys have not detected an injured or dead animal does not necessarily mean they are ineffective. It could mean the pre-detonation mitigation and monitoring has been effective.

Comment 33: The API/NOIA note that the regulations would require an operator to cease an explosive severance activity if a marine mammal or sea turtle is found shocked, injured, or dead. The commenters believe the intent is to cease detonation of any additional charges, not to cease related activity such as supporting, lifting and/or loading severed structures for transport. Halting those post-detonation operations could lead to unsafe conditions such as losing control of the structure or endangering vessels and crew. Although multiple-charge operations are normally executed in almost instantaneous sequences of detonations, occasionally additional charges may be required to complete severing of some structural members. If additional charges are required, operations would automatically cease when the operator completes activities such as inspection of the structure, preparation and placement of charges, repositioning of lifting equipment, etc. These activities may take several hours to complete. If this interpretation of the requirement is correct, compliance would not likely be a problem.

Response: As noted in the comment, the intent is that only explosive detonation and charge deployment work cease, and not the other decommissioning activities such as jacket securing, lifting, loading, and transport. Direction will be given by NMFS PROP Manager/representative on resuming any explosive-severance activities after any event impacting marine protected species.

Comment 34: The API/NOIA note that the preamble to the proposed rule states that the mitigation scenarios developed for this proposed rule will also apply to sea turtles (and this thread continues through subsequent parts of the preamble). The industry agrees that the mitigation measures developed here for marine mammals will provide adequate protection for sea turtles. However, will these measures supercede existing requirements applicable to turtles?

Response: On August 28, 2006, NMFS issued a new BiOp for MMS' permitting of structure-removal operations on the GoM OCS and for NMFS' issuance of LOAs to the industry to take marine mammals by harassment incidental to structure removal operations. The 2006 BiOp and Amended ITS, which contain measures to protect sea turtles, replace the previous 1987 BiOp.

Explosive severance activities could occur in all water depths of the offshore areas designated by MMS as the GoM Central and Western Planning Areas (CPA and WPA) and a portion of the Eastern Planning Area (EPA) offered under Lease Sale 181/189 (see Figure 2 or 3 in MMS' MMPA Application). Water depths in the areas of the proposed action range from 4 to 3,400 m (13-11,155 ft), with the majority of existing facilities and wells found within the CPA, concentrated on the upper shelf waters (less than 200 m (656 ft) water depth) off of Louisiana. A detailed description of the northern GoM area and its associated marine mammals can be found in the MMS application and PEA and in a number of documents referenced in the application. Detailed information on the marine mammals in the GoM can also be found in the NMFS status of stocks reports (Waring et al. , 2007), which are available for downloading or reading at: http://www.nefsc.noaa.gov/nefsc/publications/tm/tm201/tm201.pdf .

A total of 28 cetacean species and one species of sirenian (West Indian manatee) are known to occur in the GoM. These cetacean species are the sperm whale, pygmy sperm whale, dwarf sperm whale, Cuvier's beaked whale, Sowerby's beaked whale (extralimital), Gervais' beaked whale, Blainville's beaked whale, rough-toothed dolphin, bottlenose dolphin, pantropical spotted dolphin, Atlantic spotted dolphin, spinner dolphin, Clymene dolphin, striped dolphin, Fraser's dolphin, Risso's dolphin, melon-headed whale, pygmy killer whale, false killer whale, killer whale, short-finned pilot whale, North Atlantic right whale (extralimital), humpback whale (rare), minke whale (rare), Bryde's whale, sei whale (rare), fin whale (rare), and the blue whale (extralimital).

A description of the status, distribution, and seasonal distribution of the affected species and stocks of marine mammals that might be affected by explosive severance activities is provided in MMS' MMPA Application).

Underwater explosions are the strongest manmade point sources of sound in the sea (Richardson et al. , 1995). The underwater pressure signature of a detonating explosion is composed of an initial shock wave, followed by a succession of oscillating bubble pulses (if the explosion is deep enough not to vent through the surface) (Richardson et al. , 1995). The shock wave is a compression wave that expands radially out from the detonation point of an explosion. Although the wave is initially supersonic, it is quickly reduced to a normal acoustic wave. The broadband source levels of charges weighing 0.5-20 kg (1.1-44 lb) are in the range of 267-280 dB re 1 microPa (at a nominal 1-m distance), with dominant frequencies below 50 Hz (Richardson et al. , 1995; CSA, 2004). The following sections discuss the potential impacts of underwater explosions on marine mammals, including mortality, injury, hearing effects, and behavioral effects.

It has been demonstrated that nearby underwater blasts can injure or kill marine mammals (Richardson et al. , 1995). Injuries from high-velocity underwater explosions result from two factors: (1) the very rapid rise time of the shock wave; and (2) the negative pressure wave generated by the collapsing bubble, which is followed by a series of decreasing positive and negative pressure pulses (CSA, 2004). The extent of injury largely depends on the intensity of the shock wave at the receiver (marine mammal) and the size and depth of the animal (Yelverton et al. , 1973; Craig, 2001).

The greatest damage occurs at boundaries between tissues of different densities because different velocities are imparted that can lead to their physical disruption; effects are generally greatest at the gas-liquid interface (Landsberg, 2000; CSA, 2004). Gas-containing organs, especially the lungs and gastrointestinal tract, are susceptible to this type of damage. Lung injuries (including lacerations and the rupture of the alveoli and blood vessels) can lead to hemorrhage, air embolisms, and breathing difficulties. The lungs and other gas-containing organs (nasal sacs, larynx, pharynx, and trachea) may also be damaged by compression/expansion caused by oscillations of the blast gas bubble (Reidenberg and Laitman, 2003). Intestinal walls can bruise or rupture, which may lead to hemorrhage and the release of gut contents. Less severe injuries include contusions, slight hemorrhaging, and petechia (Yelverton et al. , 1973; CSA, 2004). Ears are the organs most sensitive to pressure and, therefore, to injury (Ketten, 2000; CSA, 2004). Severe damage to the ears can include rupture of the tympanic membrane, fracture of the ossicles, cochlear damage, hemorrhage, and cerebrospinal fluid leakage into the middle ear. By themselves, tympanic membrane rupture and blood in the middle ear can result in partial, permanent hearing loss. Permanent hearing loss can also occur when the hair cells are damaged by loud noises (ranging from single, very loud events to chronic exposure).

Mammalian hearing functions over a wide range of sound intensities, or loudness. The sensation of loudness increases approximately as the logarithm of sound intensity (Richardson and Malme, 1993). Sound intensity is usually expressed in decibels (dB), units for expressing the relative intensity of sounds on a logarithmic scale. Because sound pressure is easier to measure than intensity and intensity is proportional to the square of sound pressure, sound pressure level is usually reported in units of decibels relative to a standard reference pressure.

Based on the information presented in Richardson et al. (1995), the possible behavioral effects of noise from underwater explosions on marine mammals may be categorized as follows:

1. The noise may be too weak to be heard at the location of the animal (i.e., below the local ambient noise level, below the hearing threshold of the animal at the relevant frequencies, or both);

2. The noise may be audible, but not loud enough to elicit an overt behavioral reaction;

3. The noise may elicit behavioral reactions, which may vary from subtle effects on respiration or other behaviors (detectable only statistically) to active avoidance behavior;

4. With repeated exposure, habituation (diminishing responsiveness) to the noise may occur. Continued disturbance effects are most likely with sounds that are highly variable in their characteristics, unpredictable in occurrence, and associated with situations perceived by the animal as threatening;

5. Any anthropogenic noise that is strong enough to be heard has the potential to reduce (mask) the ability of a marine mammal to hear natural sounds at similar frequencies, including calls from conspecifics, and underwater environmental sounds such as surf noise.

6. If mammals remain in an area because it is important for feeding, breeding or some other biologically important purpose even though there is chronic exposure to noise, it is possible that there could be noise-induced physiological stress; this might in turn have negative effects on the well-being or reproduction of the animals involved; and

7. Very strong sounds have the potential to cause temporary or permanent reduction in hearing sensitivity. In terrestrial mammals, and presumably marine mammals, received sound levels must far exceed the animal's hearing threshold for there to be any TTS in its hearing ability. For transient sounds, the sound level necessary to cause TTS is inversely related to the duration of the sound exposure. Received sound levels must be even higher for there to be risk of permanent hearing impairment. In addition, intense acoustic or explosive events may cause trauma to tissues associated with organs vital for hearing, sound production, respiration and other functions. This trauma may include minor to severe hemorrhage.

The mildest form of hearing impairment, TTS, is defined as the temporary elevation of the minimum hearing sensitivity threshold at particular frequency(s) (Kryter, 1985; CSA, 2004). TTS may last from minutes to days. Although few data exist on the effects of underwater sound on marine mammal hearing, in terrestrial mammals, and presumably in marine mammals, received levels must exceed an animal's hearing threshold (i.e., maximum sensitivity) for TTS to occur (Richardson et al. , 1995; Kastak et al. , 1999; Wartzok and Ketten, 1999).

Most studies involving marine mammals have measured exposure to noise in terms of SPL, measured in dBrms or dBpeak pressure re 1 microPa. Exposure to underwater sound can also be expressed in terms of energy (SEL), or acoustic energy (measured in dB re 1 microPa2-s), which, unlike SPL measurements, considers both intensity and duration of the sound. If TTS is defined as a measurable threshold shift of 6 dB or more (Finneran et al. , 2000, 2002), then based on experiments with beluga whales and bottlenose dolphins, the onset of TTS is associated with an energy level of about 184 dB re 1 microPa2-s (CSA, 2004). However, the data are very limited, and Finneran (2003) has noted that they should be interpreted with caution.

PTS is a permanent decrease in the functional sensitivity of an animal's hearing system at some or all frequencies (CSA, 2004). The principal factors involved in determining whether PTS will occur include sound impulse duration, peak amplitude, and rise time. The criteria are location- and species-specific (Ketten, 1995) and are also influenced by the health of the receiver's ear.

At least in terrestrial animals, it has been demonstrated that the received level from a single exposure must be far above the TTS threshold for there to be a risk of PTS (Kryter, 1985, Richardson et al. , 1995; CSA, 2004). Sound signals with sharp rise times (e.g., from explosions) produce PTS at lower intensities than do other types of sound (Gisner, 1998; CSA, 2004).

For explosives, Ketten (1995) estimated that greater than 50-percent PTS would occur at peak pressures of 237-248 dB re 1 microPa and that TTS would occur at peak pressures of 211-220 dB re 1 microPa. Ketten (1995) recommended a “safe” peak pressure level to avoid physical injury of 100 psi (237 dB re 1 microPa (peak), or an SEL of about 212 dB re 1 microPa 2 -s). Ketten (1998) found that peak blast overpressures of 1,034 kPa (150 psi) were associated with 50 percent tympanic membrane rupture. Based on the incidence of eardrum rupture in sheep exposed to underwater explosions by Richmond et al. (1973), Craig (2001) estimated that 50 percent tympanic membrane rupture would occur at an energy flux density of 1.17 in-lb/in 2 . This criterion is more conservative than the one derived by Ketten (1995) and was used in the ship shock EISs as a criterion for injury, and is used by MMS and NMFS in this action. PTS is assumed to occur at received levels 30 dB above TTS-inducing levels. Studies have shown that injuries at this level involve the loss of sensory hair cells (Ahroon et al. , 1996; CSA, 2004).

Behavioral reactions of marine mammals to sounds such as those produced by underwater explosives are difficult to predict. Whether and how an animal reacts to a given sound depends on factors such as the species, hearing acuity, state of maturity, experience, current activity, reproductive state, time of day, and weather.

Richardson et al. (1995) summarized available information on the reported behavioral reactions of marine mammals to underwater explosions. Observations following the use of seal bombs as scare charges indicate that pinnipeds rapidly habituate to and, in general, appear quite tolerant of, noise pulses from explosives. Klima et al. (1988) reported that small charges were not consistently effective in moving bottlenose dolphins away from blast sites in the GoM. Since dolphins may be attracted to the fish killed by such a charge, rather than repelled, scare charges are not used in the GoM platform removal program (G. Gitschlag, personal communication, in Richardson et al. , 1995).

There are few data on the reactions of baleen whales to underwater explosions. Gray whales were apparently unaffected by 9- to 36-kg (20- to 97-lb) charges used for seismic exploration (Fitch and Young, 1948). However, Gilmore (1978) felt that similar underwater blasts within a few kilometers of the gray whale migration corridor did “sometimes” interrupt migration.

Humpback whales have generally not been observed to exhibit behavioral reactions (including vocal ones) to explosions, even when close enough to suffer injury (hearing or other) (Payne and McVay, 1971; Ketten et al. , 1993; Lien et al. , 1993; Ketten, 1995; Todd et al. , 1996). In Newfoundland, humpbacks displayed no overt reactions within about 2 km (1 nm)of 200- to 2,000-kg explosions. Whether habituation and/or hearing damage occurred was unknown, but at least two whales were injured (and probably killed) (Ketten et al. , 1993). Other humpback whales in Newfoundland, foraging in an area of explosive activity, showed little behavioral reaction to the detonations in terms of decreased residency, overall movements, or general behavior, although orientation ability appeared to be affected (Todd et al. , 1996). Todd et al. (1996) suggested caution in interpretation of the lack of visible reactions as indication that whales are not affected or harmed by an intense acoustic stimulus; both long- and short-term behavior as well as anatomical evidence should be examined. The researchers interpreted increased entrapment rate of humpback whales in nets as the whales being influenced by the long-term effects of exposure to deleterious levels of sound.

As mentioned previously, Finneran et al. (2000) exposed captive bottlenose dolphins and belugas to single, simulated sounds of distant explosions. The broad-band received levels were 155-206 dB; pulse durations were 5.4-13 ms. This was equivalent to a maximum spectral density of 102-142 dB re 1 μPa/Hz 2 at a 6.1 Hz bandwidth. Although pulse durations differed, the source levels required to induce a behavioral response to the introduced sounds were similar to those found by Ridgway et al. (1997) and Schlundt et al. (2000).

The MMS has requested NMFS to issue authorizations, under section 101(a)(5)(A) of the MMPA, to cover any potential take by Level A or Level B harassment for the 28 species of cetaceans listed previously in this document, incidental to the oil and gas industry conducting explosive-severance operations regulated by the MMS. Explosive severance operations have the potential to take marine mammals by contact with shock wave and acoustic energy released from underwater detonations and the resultant injury, hearing damage, and behavioral effects. For this activity, NMFS and MMS used take thresholds and criteria for explosives used in the incidental take authorization for shock trials for the U.S. Navy's USS WINSTON CHURCHILL (Navy, 2001). While these criteria remain a subject for future discussion and revision (see 69 FR 21816, April 22, 2004, and 70 FR 48675, August 19, 2005), the WINSTON CHURCHILL criteria (i.e., 12 pounds/in 2 (psi) peak-pressure and 182 dB (re 1 microPa 2 -sec)) have been used because these criteria remain conservative. For example, Finneran et al. (2003) did not find masked TTS in the single bottlenose dolphin tested at the highest exposure conditions: peak pressure of 207 kPa (30 psi), 228 dB re 1 microPa pk-pk pressure, and 188 dB re 1 microPa 2 -s total energy flux. These criteria will be updated in 2008 when NMFS and the Navy complete an evaluation for these criteria as applied to the shock trial of the USS MESA VERDE (see 72 FR 61329, October 30, 2007 and 73 FR 19789, April 11, 2005).

The criteria for nonlethal, injurious impacts (Level A harassment) are currently defined as the incidence of 50-percent tympanic-membrane (TM) rupture and the onset of slight lung hemorrhage for a 12.2-kg (27 lb) dolphin calf. Level A harassment take is assumed to occur:

1.at an energy flux density value of 1.17 in-lb/in 2 (which is about 205 dB re 1 μPa 2 -s); or

2.if the peak pressure exceeds 100 psi for an explosive source; i.e., the “safe” peak pressure level recommended by Ketten (1995) to avoid physical injury.

The horizontal distance from the explosive to each threshold is considered the distance at which Level A harassment would occur (U.S. Dept. Navy, 2001. FEIS for the Shock Trial of the USS WINSTON CHURCHILL).

NMFS recognizes two levels of noninjurious acoustic impacts (Level B harassment). One criterion for Level B harassment is defined by the onset of TTS. Two thresholds are applied. TTS is assumed to be induced:

1.At received energies greater than 182 dB re 1 microPa2-s within any 1/3-octave band; or

2.If, for an explosive source, the peak pressure at the animal exceeds 12 psi.

As with Level A harassment, the horizontal distance to each threshold is considered the distance at which Level B harassment (TTS) would occur. These distances have been used for estimating conservative zones of impact.

“Sub-TTS” behavioral effects may also be considered to constitute a take by Level B harassment if a marine mammal reacts to an activity in a manner that would affect some behavioral pattern in a biologically significant way. Single, minor reactions (such as startle or “heads-up” alert displays, short-term changes in breathing rates, or modified single dive sequences) that have no biological context would not qualify as takes (66 FR 22450, May 4, 2001). This would include minor or momentary strictly behavioral responses to single events such as underwater explosions. Since explosive severance activities result in single, almost instantaneous detonations, with no repetitive detonations, NMFS does not believe marine mammals would be subject to sub-TTS behavioral harassment, although there may be behavioral modifications as a result of TTS (e.g., changes in conspecific spatial separation).

In order to estimate incidental take numbers for explosive severance activities, fundamental modeling components require: (1) predictive modeling of detonation pressure/energy propagation, (2) propagation model verification and utilization, (3) predictive modeling of marine mammal take estimates, and (4) take-estimate calculation. These models and the calculations resulting from those models are explained in detail in MMS (2005a and 2005b).

Based on MMS calculations for all explosive-severance monitoring scenarios, Level A harassment takes would be limited to 5 bottlenose dolphins, one Atlantic spotted, and one pantropical spotted dolphin over the five-year period of these regulations. Annual Level B harassment takes would be limited to 227 bottlenose dolphins, 65 Atlantic spotted dolphins, 77 pantropical spotted dolphins, 27 Clymene dolphins, 12 rough-toothed dolphins, 14 striped dolphins, 15 melon-headed whales, 10 pilot whales, 5 spinner dolphins, 3 Risso's dolphins, and 2 sperm whales. It should be noted that Level A and Level B harassment estimates are made without consideration of the implementation of mitigation measures to protect marine mammals, so actual harassment numbers would likely be lower. Post-activity monitoring conducted by trained biological observers since 1989 has not produced any sightings of distressed marine mammals.

Based upon the analysis found in the MMS Final PEA (MMS, 2005b), NMFS believes that implementation of the mitigation measures listed in this section will prevent the occurrence of any mortality or serious injury to marine mammals.

Charge Criteria

The charge criteria discussed here (e.g., charge size, detonation staggering, and explosive material) are applicable for all of the explosive-severance scenarios conducted under the proposed action.

The options available under the multiple explosive- severance scenarios allow for the utilization of any size charge between 0 and 500 lb (226.8 kg). Most often determined in the early planning stages, the final/actual charge weight establishes the specific monitoring scenario that must be adhered to as a condition of an MMPA authorization. Increasing the charge size results in the need for increasing levels of mitigation/monitoring. Using explosives greater than 500 lb (226.8 kg) is not covered for lawful incidental taking of marine mammals under the MMPA. Use of explosives greater than 500 lb (226.8 kg) would require additional NEPA analyses, ESA consultations and an MMPA authorization prior to usage.

Multiple-charge detonations will be staggered at an interval of 0.9 sec (900 msec) between blasts to prevent an additive pressure event. For decommissioning purposes, a “multiple-charge detonation” refers to any configuration where more than one charge is required in a single detonation “event.”

There are many important properties (i.e., velocity, brisance, specific-energy, etc.) related to the explosive material(s) used in developing severance charges. Material needs vary widely depending upon target characteristics, marine conditions, and charge placement. Since specific material and personnel safety requirements must be established and followed, all decisions on explosive composition, configuration, and usage should be made by the qualified (i.e., licensed and permitted) explosive contractors in accordance with the applicable explosive-related laws and regulations. However, limiting charge size or material may result in incomplete severing possibly requiring even larger charge weight to complete the severing.

Explosive severance activities, as described in the MMS MMPA application and Final PEA, have been grouped into five blasting categories (very small, small, standard, large, and specialty). Since the level of detonation pressure and energy is primarily related to the amount of the explosives used, these categories were developed based upon the specific range of charge weights needed to conduct current and future GoM OCS decommissionings. Depending on the design of the target and other variable marine conditions, the severance charges developed under each of these categories could be designed for use in either a below-mudline (BML) or above mudline (AML) configuration. These factors, combined with an activity location within either the shelf (less than 200 m (656 ft)) or slope (greater than 200 m (656 ft)) species-delineation zone, result in 20 separate explosive-severance monitoring scenarios as depicted in Table 1.

The charge criteria previously listed are standard for all decommissionings employing explosive severance activities. However, depending upon the severance scenario, there are six different types of marine mammal monitoring surveys that must be conducted before and after all detonation events (sea turtles were included in MMS' specified activity mitigation and monitoring activities because they will also minimize impacts to ESA-listed sea turtles). The specific monitoring requirements, survey times, and impact zone radii for all explosive severance monitoring scenarios are summarized in Table 1.