Comments Invited

Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal.

Communications should identify both docket numbers (FAA Docket No. FAA 2012-0139 and Airspace Docket No. 12-ANM-3) and be submitted in triplicate to the Docket Management System (see ADDRESSES section for address and phone number). You may also submit comments through the Internet at http://www.regulations.gov.

Commenters wishing the FAA to acknowledge receipt of their comments on this action must submit with those comments a self-addressed stamped postcard on which the following statement is made: “Comments to FAA Docket No. FAA-2012-0139 and Airspace Docket No. 12-ANM-3”. The postcard will be date/time stamped and returned to the commenter.

All communications received on or before the specified closing date for comments will be considered before taking action on the proposed rule. The proposal contained in this action may be changed in light of comments received. All comments submitted will be available for examination in the public docket both before and after the closing date for comments. A report summarizing each substantive public contact with FAA personnel concerned with this rulemaking will be filed in the docket.

An electronic copy of this document may be downloaded through the Internet at http://www.regulations.gov. Recently published rulemaking documents can also be accessed through the FAA's Web page at http://www.faa.gov/airports_airtraffic/air_traffic/publications/airspace_amendments/.

You may review the public docket containing the proposal, any comments received, and any final disposition in person in the Dockets Office (see the ADDRESSES section for the address and phone number) between 9 a.m. and 5 p.m., Monday through Friday, except federal holidays. An informal docket may also be examined during normal business hours at the Northwest Mountain Regional Office of the Federal Aviation Administration, Air Traffic Organization, Western Service Center, Operations Support Group, 1601 Lind Avenue SW., Renton, WA 98057.

Persons interested in being placed on a mailing list for future NPRMs should contact the FAA's Office of Rulemaking, (202) 267-9677, for a copy of Advisory Circular No. 11-2A, Notice of Proposed Rulemaking Distribution System, which describes the application procedure.

The FAA is proposing an amendment to Title 14 Code of Federal Regulations (14 CFR) Part 71 by amending Class E surface airspace at Livingston, Mission Field Airport, Livingston, MT. Airspace reconfiguration is necessary due to the decommissioning of the Livingston TACAN. This action would enhance the safety and management of aircraft operations at Livingston, Mission Field Airport, Livingston, MT.

Class E airspace designations are published in paragraph 6002, of FAA Order 7400.9V, dated August 9, 2011, and effective September 15, 2011, which is incorporated by reference in 14 CFR Part 71.1. The Class E airspace designation listed in this document will be published subsequently in this Order.

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

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the U.S. Code. Subtitle 1, Section 106, describes the authority for the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it would modify controlled airspace at Livingston, Mission Field Airport, Livingston, MT.

This proposal will be subject to an environmental analysis in accordance with FAA Order 1050.1E, “Environmental Impacts: Policies and Procedures” prior to any FAA final regulatory action.

Accordingly, pursuant to the authority delegated to me, the Federal Aviation Administration proposes to amend 14 CFR Part 71 as follows:

We encourage you to participate in this rulemaking 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.

If you submit a comment, please include the docket number for this rulemaking (USCG-2012-0197), indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation. You may submit your comments and material online (via http://www.regulations.gov) or by fax, mail, or hand delivery, but please use only one of these means. If you submit a comment online via www.regulations.gov, it will be considered received by the Coast Guard when you successfully transmit the comment. If you fax, hand deliver, or mail your comment, it will be considered as having been received by the Coast Guard when it is received at the Docket Management Facility. We recommend that you include your name and a mailing address, an email address, or a telephone number in the body of your document so that we can contact you if we have questions regarding your submission.

To submit your comment online, go to http://www.regulations.gov, type the docket number USCG-2012-0197 in the “SEARCH” box and click “SEARCH.” Click on “Submit a Comment” on the line associated with this rulemaking. If you submit your comments by mail or hand delivery, submit them in an unbound format, no larger than 81/2 by 11 inches, suitable for copying and electronic filing. If you submit comments by mail and would like to know that they reached the Facility, please enclose a stamped, self-addressed postcard or envelope. We will consider all comments and material received during the comment period and may change the rule based on your comments.

To view comments, as well as documents mentioned in this preamble as being available in the docket, go to http://www.regulations.gov, type the docket number (USCG-20120-0197 in the “SEARCH” box and click “SEARCH.” Click on Open Docket Folder on the line associated with this rulemaking.

You may also visit the Docket Management Facility in Room W12-140 on the ground floor of the Department of Transportation West Building, 1200 New Jersey Avenue SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. We have an agreement with the Department of Transportation to use the Docket Management Facility.

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

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

On August 11, 2012 from 7:30 a.m. to 12 p.m., the Organization to Support the Arts, Infrastructure, and Learning on Lake Gaston, also known as O'SAIL, will sponsor “The Crossing” on the waters of Lake Gaston, adjacent to Littleton, North Carolina. The swim event will consist of approximately 350 swimmers entering Lake Gaston at the Morning Star Marina on the south bank of Lake Gaston, west of the Eaton Ferry Bridge, and swimming north along the western side of Eaton Ferry Bridge to the Waterview Restaurant. A fleet of spectator vessels are expected to gather near the event site to view the competition. To provide for the safety of participants, spectators and other transiting vessels, the Coast Guard will temporarily restrict vessel traffic in the event area during this event.

In an effort to enhance safety of event participants the channel in the vicinity of Eaton Ferry Bridge will remain closed during the event on August 11, 2012 from 7:30 a.m. to 12 p.m. The Coast Guard will temporarily restrict access to this section of Lake Gaston during the event.

The Coast Guard proposes to establish Special Local Regulations that will restrict vessel movement on the specified waters of Lake Gaston, Littleton, NC. During the Marine Event no vessel will be allowed to transit the waterway unless the vessel operator receives permission from the Patrol Commander.

Special Local Regulations will encompass the waters of Lake Gaston under the Eaton Ferry Bridge, latitude 36°31′06″ North, longitude 077°57′37″ West, and within 100 yards of the western side of Eaton Ferry Bridge. All vessels are prohibited from transiting this section of the waterway while the regulation is in effect. Entry into the regulated area will not be permitted except as specifically authorized by the Captain of the Port or a designated representative. To request permission to transit the area, mariners may contact Coast Guard Sector North Carolina at (910) 343-3882. The regulated area will be enforced from 7:30 a.m. to 12 p.m. on August 11, 2012. This proposed restriction of vessel movement and access to the waterway is for the protection and safety of swimmers participating in the event.

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

This proposed rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, as supplemented by Executive Order 13563, Improving Regulation and Regulatory Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of Executive Order 12866 or under section 1 of Executive Order 13563. The Office of Management and Budget has not reviewed it under those Orders.

Although this regulation will restrict access to the area, the effect of this rule will not be significant because the regulated area will be in effect for a limited time, from 7:30 a.m. to 12 p.m., on August 11, 2012. The Coast Guard will provide advance notification via maritime advisories so mariners can adjust their plans accordingly. The regulated area will apply only to the section of Lake Gaston in the immediate vicinity of Eaton Ferry Bridge. Coast Guard vessels enforcing this regulated area can be contacted on marine band radio VHF-FM channel 16 (156.8 MHz).

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

The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule would not have a significant economic impact on a substantial number of small entities.

This rule will affect the following entities, some of which may be small entities: The owners or operators of recreational vessels intending to transit the specified portion of Lake Gaston from 7:30 a.m. to 12 p.m. on August 11, 2012.

This rule will not have a significant economic impact on a substantial number of small entities for the following reasons. This rule will only be in effect for 4 and one-half hours from 7:30 a.m. to 12 p.m. The regulated area applies only to the section of Lake Gaston in the vicinity of Eaton Ferry Bridge. Vessel traffic may be allowed to pass through the regulated area with the permission of the Coast Guard Patrol Commander. In the case where the Patrol Commander authorizes passage through the regulated area, vessels shall proceed at the minimum speed necessary to maintain a safe course that minimizes wake near the swim course. The Patrol Commander will allow non-participating vessels to transit the event area once all swimmers are safely clear of navigation channels and vessel traffic areas. Before the enforcement period, we will issue maritime advisories so mariners can adjust their plans accordingly.

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

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this proposed rule so that they can better evaluate its effects on them and participate in the rulemaking. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact CWO3 Joseph Edge, Waterways Management Division Chief, Coast Guard Sector North Carolina, at (252) 247-4525. The Coast Guard will not retaliate against small entities that question or complain about this proposed rule or any policy or action of the Coast Guard.

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

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on 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. We have analyzed this proposed rule under that Order and determined that this rule 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 (adjusted for inflation) or more in any one year. Though this proposed rule would not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

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

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

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

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

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

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

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

We have analyzed this proposed rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have made a preliminary determination, under figure 2-1, paragraph 34(h) of the Instruction, that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. A preliminary environmental analysis checklist supporting this determination is available in the docket where indicated under ADDRESSES. This proposed rule involves implementation of regulations within 33 CFR Part 100 that apply to organized marine events on the navigable waters of the United States that may have potential for negative impact on the safety or other interest of waterway users and shore side activities in the event area. This special local regulation is necessary to provide for the safety of the general public and event participants from potential hazards associated with movement of vessels near the event area. We seek any comments or information that may lead to the discovery of a significant environmental impact from this proposed rule.

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

We encourage you to participate in this rulemaking 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.

If you submit a comment, please include the docket number for this rulemaking (USCG-2012-0174), indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation. You may submit your comments and material online (via http://www.regulations.gov) or by fax, mail, or hand delivery, but please use only one of these means. If you submit a comment online via www.regulations.gov, it will be considered received by the Coast Guard when you successfully transmit the comment. If you fax, hand deliver, or mail your comment, it will be considered as having been received by the Coast Guard when it is received at the Docket Management Facility. We recommend that you include your name and a mailing address, an email address, or a telephone number in the body of your document so that we can contact you if we have questions regarding your submission.

To submit your comment online, go to http://www.regulations.gov, type the docket number (USCG-2012-0174) in the “SEARCH” box and click “SEARCH.” Click on “Submit a Comment” on the line associated with this rulemaking.

If you submit your comments by mail or hand delivery, submit them in an unbound format, no larger than 81/2 by 11 inches, suitable for copying and electronic filing. If you submit comments by mail and would like to know that they reached the Facility, please enclose a stamped, self-addressed postcard or envelope. We will consider all comments and material received during the comment period and may change the rule based on your comments.

To view comments, as well as documents mentioned in this preamble as being available in the docket, go to http://www.regulations.gov, type the docket number (USCG-2012-0174) in the “SEARCH” box and click “SEARCH.” Click on Open Docket Folder on the line associated with this rulemaking. You may also visit the Docket Management Facility in Room W12-140 on the ground floor of the Department of Transportation West Building, 1200 New Jersey Avenue SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. We have an agreement with the Department of Transportation to use the Docket Management Facility.

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

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

Operation Sail, Inc. is sponsoring OPSAIL 2012 Virginia in the Port of Hampton Roads. Planned events include the scheduled arrival of U.S. and foreign naval vessels, public vessels, tall ships and other vessels on June 6, 2012 and June 8, 2012; the scheduled departure of those vessels on June 12, 2012; and three fireworks displays on June 9, 2012 with a rain date of June 10, 2012.

The Coast Guard anticipates a large spectator fleet for these events. Vessel operators should expect significant congestion along the OPSAIL parade route and viewing areas for fireworks displays.

The purpose of these regulations is to promote maritime safety and protect participants and the boating public in the Port of Hampton Roads immediately prior to, during, and after the scheduled events. The regulations provide clear passage and a safety buffer around participating vessels along the parade route while they are in transit, enhancing safety of participant and spectator vessels. The regulations also establish areas where vessels shall proceed at the minimum speed necessary that minimizes wake along the parade route and modifies existing anchorage regulations for the benefit of participants and spectators. These proposed regulations will provide a safety buffer around the planned fireworks displays. The regulations will impact the movement of all vessels operating in the specified areas of the Port of Hampton Roads.

The Coast Guard proposes to establish safety and security zones as a part of these regulations to safeguard dignitaries and certain vessels participating in the event. The Coast Guard will implement and enforce safety zones as specified in this regulation. The details of the safety zones outlined in this regulation will also be announced separately via Local Notice to Mariners, Safety Voice Broadcasts, and by other public media outlets.

Vessel operators are also reminded that Norfolk Naval Base will be strictly enforcing the existing restricted area defined at 33 CFR 334.300 during all of the events.

All vessel operators and passengers are reminded that vessels carrying passengers for hire or that have been chartered and are carrying passengers may have to comply with certain additional rules and regulations beyond the safety equipment requirements for all pleasure craft. When a vessel is not being used exclusively for pleasure, but rather is engaged in carrying passengers for hire or has been chartered and is carrying the requisite number of passengers, the vessel operator must possess an appropriate license and the vessel may be subject to inspection. The definition of the term “passenger for hire” is found in 46 U.S.C. 2101(21a). In general, it means any passenger who has contributed any consideration (monetary or otherwise) either directly or indirectly for carriage onboard the vessel. The definition of the term “passenger” is found in 46 U.S.C. 2101(21). It varies depending on the type of vessel, but generally means individuals carried aboard vessels except for certain specified individuals engaged in the operation of the vessel or the business of the owner/charterer. The law provides for substantial penalties for any violation of applicable license and inspection requirements. If you have any questions concerning the application of the above law to your particular case, you should contact the Coast Guard at the address listed in ADDRESSES for additional information.

Vessel operators are reminded they must have sufficient facilities on board their vessels to retain all garbage and untreated sewage. Discharge of either into any waters of the United States is strictly forbidden. Violators may be assessed civil penalties up to $40,000 or face criminal prosecution.

We recommend that vessel operators visiting the Port of Hampton Roads for this event obtain up to date editions of the following charts of the area: NOS. 12222, 12245, 12253, and 12254 to avoid anchoring within a charted cable or pipeline area.

With the arrival of OPSAIL 2012 Virginia participants and spectator vessels in the Port of Hampton Roads for this event, it will be necessary to curtail normal port operations to some extent. Interference will be kept to the minimum considered necessary to ensure the safety of life on the navigable waters immediately before, during, and after the scheduled events.

The vessels involved in the Parades of Sail are scheduled to arrive in the Captain of the Port (COTP) Hampton Roads Zone, as described in 33 CFR 3.25-10, on June 6, 2012 and June 8, 2012, following a route that includes specified waters of the Chesapeake Bay, Hampton Roads, James River, and Elizabeth River. The vessels involved in Parades of Sail are scheduled to depart the COTP Hampton Roads Zone on June 12, 2012, following a route that includes specified waters of the Chesapeake Bay, Hampton Roads, James River and Elizabeth River

The safety of marine parade participants and spectators will require that spectator craft be kept at a safe distance from the parade routes during vessel movement. The Coast Guard proposes closing the arrival parade route to all vessels not involved in the Parades of Sail for the duration of events on June 6 and 8, 2012. The arrival parade route has been segmented in this rulemaking to facilitate the earliest possible reopening of the waterway once all OPSAIL 2012 Virginia vessels have cleared a particular segment of the route, but portions of the Elizabeth River will remain closed until all of the OPSAIL 2012 Virginia vessels are safely moored at their assigned berths.

The departure parade route will also require that spectator craft be kept at a safe distance during vessel movement, we propose to establish a temporary moving safety zone around Parade of Sail vessels greater than 100 feet in length overall, while operating in the navigable waters of the Chesapeake Bay or its tributaries, north of latitude 36°55′00″ N and south of the Virginia-Maryland border. This action is necessary to ensure the safety of participants and spectators immediately prior to, during, and following the OPSAIL 2012 activities.

In addition to closing the parade route, we propose to establish Vessel Traffic Control Points to control the flow of spectator vessel traffic immediately prior to and during the parades and fireworks display. Vessel Traffic Control Points will be established on specified areas of the Chesapeake Bay, Hampton Roads, James River and Elizabeth River.

The Coast Guard also intends to temporarily modify the existing anchorage regulations found at 33 CFR Sec. 110.168 to accommodate OPSAIL 2012 Virginia participants and spectator vessels. Spectator vessels will be allowed to anchor in Anchorage E and Anchorage F during the arrival and departure parades of sail. Anchorage K will be closed to all vessels, except large spectator vessels.

The regulations for the Regulated Navigation Area defined in 33 CFR 165.501 will also be temporarily modified for the OPSAIL 2012 Virginia event. Draft limitations for vessels using Thimble Shoal Channel will be waived for OPSAIL 2012 Virginia vessels; and vessels will be required to proceed at the minimum speed necessary that minimizes wake within the regulated navigation area, as defined in 33 CFR 165.501, during the Parades of Sail.

Coast Guard Captain of the Port will give notice of the enforcement of each regulated area and safety zone by all appropriate means to provide the widest dissemination of notice among the affected segments of the public. This will include publication in the Local Notice to Mariners and Marine Information Broadcasts. Marine information and facsimile broadcasts may also be made for these events, beginning 24 to 48 hours before the event.

Due to the need to protect mariners and spectators from the hazards associated with the fireworks display, such as the accidental discharge of fireworks, dangerous projectiles, and falling hot embers or other debris, the Coast Guard also intends to implement a safety zone from 9 p.m. to 11 p.m. on June 9, 2012 with a rain date from 9 p.m. to 11 p.m. on June 10, 2012.

The regulations contained within this proposed rule are not intended to affect existing Naval Vessel Protection Zone regulations described in Title 33 CFR Part 165 (Subpart G).

We developed this proposed rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on 14 of these statutes or executive orders.

This proposed rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, as supplemented by Executive Order 13563, Improving Regulation and Regulatory Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of Executive Order 12866 or under section 1 of Executive Order 13563. The Office of Management and Budget has not reviewed it under those Orders. The primary impact of these regulations will be on vessels wishing to transit the affected waterways during OPSAIL 2012 Virginia vessels arrival beginning on June 6, 2012, June 8, 2012, their departure ending on June 12, 2012 and during the fireworks display on June 9, 2012. Although these regulations prevent traffic from transiting a portion of the Chesapeake Bay, Thimble Shoals Channel, Hampton Roads, James River and Elizabeth River during these events, that restriction is limited in duration, affects only a limited area, and will be well publicized to allow mariners to make alternative plans for transiting the affected area. Moreover, the magnitude of the event itself will limit or prevent transit of the waterway. These regulations are designed to ensure such transit is conducted in a safe and orderly fashion.

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered the impact of this proposed rule on small entities. The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule will not have a significant economic impact on a substantial number of small entities. This proposed rule would affect the following entities, some of which might be small entities: the owners or operators of vessels intending to operate or anchor in portions of the Chesapeake Bay, Thimble Shoals Channel, Hampton Roads, James River and Elizabeth River, in Virginia. The regulations would not have a significant impact on a substantial number of small entities for the following reasons: the restrictions are limited in duration, affect only limited areas, and will be well publicized to allow mariners to make alternative plans for transiting the affected areas.

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

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this proposed rule so that they can better evaluate its effects on them and participate in the rulemaking. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact Dennis Sens, Prevention Division, Fifth Coast Guard District; telephone 757-398-6204, email Dennis.M.Sens@uscg.mil. The Coast Guard will not retaliate against small entities that question or complain about this proposed rule or any policy or action of the Coast Guard.

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

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on 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. We have analyzed this proposed rule under that Order and determined that this rule 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 (adjusted for inflation) or more in any one year. Though this proposed rule would not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

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

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

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

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

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

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

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

We have analyzed this proposed rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have made a preliminary determination that this action is one of a category of actions which do not individually or cumulatively have a significant effect on the human environment. This proposed rule would temporarily change who can use various anchorages, establish temporary safety and security zones, and establish temporary special local regulations in conjunction with a marine event of national significance. These activities are categorically excluded from further environmental analysis under figure 2-1, paragraphs (34)(f), (g), and (h) of the Instruction. We seek any comments or information that may lead to the discovery of a significant environmental impact from this proposed rule. A preliminary environmental analysis checklist and a categorical exclusion determination are available in the docket where indicated under ADDRESSES.

For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR Parts 100, 110, and 165 as follows:

We encourage you to participate in this rulemaking 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.

If you submit a comment, please include the docket number for this rulemaking (USCG-2012-0100), indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation. You may submit your comments and material online (via http://www.regulations.gov) or by fax, mail, or hand delivery, but please use only one of these means. If you submit a comment online via www.regulations.gov, it will be considered received by the Coast Guard when you successfully transmit the comment. If you fax, hand deliver, or mail your comment, it will be considered as having been received by the Coast Guard when it is received at the Docket Management Facility. We recommend that you include your name and a mailing address, an email address, or a telephone number in the body of your document so that we can contact you if we have questions regarding your submission.

To submit your comment online, go to http://www.regulations.gov, type the docket number (USCG-2012-0100 in the “SEARCH” box and click “SEARCH.” Click on “Submit a Comment” on the line associated with this rulemaking. If you submit your comments by mail or hand delivery, submit them in an unbound format, no larger than 81/2 by 11 inches, suitable for copying and electronic filing. If you submit comments by mail and would like to know that they reached the Facility, please enclose a stamped, self-addressed postcard or envelope. We will consider all comments and material received during the comment period and may change the rule based on your comments.

To view comments, as well as documents mentioned in this preamble as being available in the docket, go to http://www.regulations.gov, type the docket number (USCG-2012-0100 in the “SEARCH” box and click “SEARCH.” Click on Open Docket Folder on the line associated with this rulemaking. You may also visit the Docket Management Facility in Room W12-140 on the ground floor of the Department of Transportation West Building, 1200 New Jersey Avenue SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. We have an agreement with the Department of Transportation to use the Docket Management Facility. A copy of this proposal will also be placed in the local notice to mariners.

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

We do not now plan to hold a public meeting, but you may submit a request for one on or before April 24, 2012 using one of the four methods specified under ADDRESSES. Please explain why you believe a public meeting would be beneficial. If we determine that one would aid this rulemaking, we will hold one at a time and place announced by a later notice in the Federal Register.

The event sponsor hosted a planning and coordination meeting that was open to the public on October 12, 2011 and held an Initial Planning Conference on February 14-15, 2012 in Boston, MA. Recommendations to employ a similar pattern to that which was used during the Sail Boston 2009 events was recommended during this meeting and that recommendation is incorporated into this document. Additionally, informal discussions were held December 21, 2011 and January 18, 2012 during the Boston's Port Operators Group Meeting, and comments concerning the use of traffic patterns the way they were used during Sail Boston 2009 have been addressed. The War of 1812 Bicentennial Commemoration Events will be a topic on the agenda in future monthly Boston Port Operators Group Meetings. On January 26, 2012 the Coast Guard held an informal meeting with Federal, State and local government agencies to brief them on the planning the Coast Guard is doing for the War of 1812 Bicentennial Commemoration Events; this meeting was attended by some local business leaders. Nothing discussed at this meeting impacted the drafting of this proposed regulation.

The legal basis for the proposed rule is 33 U.S.C. 1225, 1226, 1231, 1233; 46 U.S.C. Chapter 701, 3306, 3703; 50 U.S.C. 191, 195; Pub. L. 107-295, 116 Stat. 2064; Ports and Waterways Safety Act and Department of Homeland Security Delegation No. 0170.1, which collectively authorize the Coast Guard to define special local regulations and security zones.

The proposed temporary regulations are for the War of 1812 Bicentennial Commemoration events to be held in Boston Harbor, which the U.S. Coast Guard has designated this as a Marine Event of National Significance. These events will be held from June 28, 2012 through July 6, 2012. This rule is proposed to provide for the safety of life on navigable waters and to protect U.S. and Foreign military vessels, U.S. and foreign government sailing vessels, private vessels, spectators, and the Port of Boston during these events.

The United States Navy is planning a series of events nationwide to celebrate the commemoration of the War of 1812. The Port of Boston events will occur between June 28 and July 6, 2012. The events will consist of a gathering of U.S and foreign military vessels, U.S. and foreign government sailing vessels mooring in various berths throughout the Port of Boston.

At the time of this notice, War of 1812 Bicentennial Commemoration events are expected to include the following:

1. June 28-29—Multiple U.S. and foreign military vessels arrive;

2. June 30: Arrival of the U.S. and foreign government sailing vessels;

3. June 28 through July 6: Security Zones in effect;

4. June 30 through July 6: Public tours of U.S and Foreign military vessels and U.S and foreign government sailing vessels;

5. June 29 through July 6: Vessel movement control measures in effect;

6. July 4: USS CONSTITUTION and USCGC EAGLE Parade;

7. July 4: USN Blue Angles aerial demonstration.

On July 4, starting at 11 a.m. there will be salute to the USS CONSITUTION and USCGC EAGLE as they sail from Constitution Pier, outbound Boston Main Channel to Castle Island and return. This will be followed by an air demonstration by the Navy's Blue Angels above Boston Inner Harbor at approximately 12:15 p.m.

In the year 2009, a similar event, Sail Boston 2009, drew several hundred thousand spectators by both land as well as water to Boston Harbor.

Recognizing the significant draw this event may have on recreational boating traffic, the Coast Guard's proposes to establish a special local regulation that would create vessel movement control measures in Boston Harbor through a Regulated Area, which will be in effect during the War of 1812 Bicentennial Commemoration events.

This proposed regulated area is needed for vessel movement control measures and to facilitate law enforcement vessel access to support facilities. Additionally, the regulated areas will protect the maritime public and participating vessels from possible hazards to navigation associated with dense vessel traffic.

The proposed Regulated Area establishes a counter-clockwise traffic pattern around Boston Inner Harbor to ensure spectator vessels are following an organized route, facilitating the smooth flow of boating traffic, thereby minimizing disruption on the waterway. A Coast Guard Patrol Commander (PATCOM) will be designated and on scene controlling the flow of traffic through the Regulated Area.

The waterway between the World Trade Center Pier and the Fish Pier, as well as the waterway within the Reserved Channel do not constitute large areas for unhindered navigation. Due to the navigation restrictions in these waterways, when vessels over 125 feet enter the area, on-scene patrol personnel will halt the flow of vessel traffic and allow no other vessel in the channel until the vessel greater than 125 feet is clear of the narrow channel.

Due to concerns of tenants at the World Trade Center, Fish Piers and the Black Falcon Terminal, waterside viewing hours for vessels berthed at these facilities will be limited to times specified in the regulatory text, outside of which only vessels which are tenants within the channels of the World Trade Center, Fish Pier and Reserved Channel will be authorized access within those areas.

Additionally, the Coast Guard is proposing to establish 25-yard security zones surrounding participating vessels while moored. The proposed regulations would be in effect in Boston Harbor throughout the effective period. These restrictions are expected to minimize the risks associated with the anticipated large number of recreational vessel traffic within the confines of Boston Inner Harbor operating in conjunction with commercial deep draft vessel traffic that pose a significant threat to the safety of life.

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

This proposed rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, as supplemented by Executive Order 13563, Improving Regulation and Regulatory Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of Executive Order 12866 or under section 1 of Executive Order 13563. The Office of Management and Budget has not reviewed it under those Orders.

Although this regulation imposes traffic restrictions in portions of Boston Harbor during the events, the effect of this regulation will not be significant for the following reasons: the regulated area and security zones will only be in place during the week long War of 1812 activities, and Extensive advance notice will be made to mariners via appropriate means, which may include broadcast notice to mariners, local notice to mariners, facsimile, marine safety information bulletin, local Port Operators Group meetings, the Internet, USCG Sector Boston Homeport Web page, and local newspapers and media. The advance notice will permit mariners to adjust their plans accordingly. Additionally, the regulated area is tailored to impose the least impact on maritime interests without compromising safety.

Similar restrictions were established for Sailing Boston 1992, 2000, and 2009 events. Based upon the Coast Guard's experiences from those previous similar magnitude events, these proposed regulations have been narrowly tailored to impose the least impact on maritime interests yet provide the necessary level of safety.

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

The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule would not have a significant economic impact on a substantial number of small entities.

This proposed rule would affect the following entities, some of which might be small entities: The owners or operators of vessels intending to transit, fish, or anchor in portions of Boston Harbor during various times during the effective period.

The proposed rule would not have a significant economic impact on a substantial number of small entities for the same reasons outlined in the Executive Order 12866 and Executive Order 13563 section above.

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

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

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

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on 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. We have analyzed this proposed rule under that Order and determined that this rule 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 (adjusted for inflation) or more in any one year. Though this proposed rule would not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

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

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

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

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

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

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

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

We have analyzed this proposed rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have made a preliminary determination that this action appears to be one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. A preliminary environmental analysis checklist supporting this determination will be available in the docket where indicated under ADDRESSES. This rule appears to be categorically excluded, under figure 2-1, paragraphs (34)(g) and (h) of the Instruction. We seek any comments or information that may lead to the discovery of a significant environmental impact from this proposed rule.

For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR parts 100 and 165 as follows:

We encourage you to participate in this rulemaking 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.

If you submit a comment, please include the docket number for this rulemaking (USCG-2012-0198), indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation. You may submit your comments and material online (via http://www.regulations.gov) or by fax, mail, or hand delivery, but please use only one of these means. If you submit a comment online via www.regulations.gov, it will be considered received by the Coast Guard when you successfully transmit the comment. If you fax, hand deliver, or mail your comment, it will be considered as having been received by the Coast Guard when it is received at the Docket Management Facility. We recommend you include your name and a mailing address, an email address, or a telephone number in the body of your document so that we can contact you if we have questions regarding your submission.

To submit your comment online, go to http://www.regulations.gov, click on the “submit a comment” box, which will then become highlighted in blue. In the “Document Type” drop down menu select “Proposed Rule” and insert “USCG-2012-0198” in the “Keyword” box. Click “Search” then click on the balloon shape in the “Actions” column. If you submit your comments by mail or hand delivery, submit them in an unbound format, no larger than 81/2 by 11 inches, suitable for copying and electronic filing. If you submit comments by mail and would like to know that they reached the Facility, please enclose a stamped, self-addressed postcard or envelope. We will consider all comments and material received during the comment period and may change the rule based on your comments.

To view comments, as well as documents mentioned in this preamble as being available in the docket, go to http://www.regulations.gov, click on the “read comments” box, which will then become highlighted in blue. In the “Keyword” box insert “USCG-2012-0198” and click “Search.” Click the “Open Docket Folder” in the “Actions” column.

You may also visit the Docket Management Facility in Room W12-140 on the ground floor of the Department of Transportation West Building, 1200 New Jersey Avenue SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. We have an agreement with the Department of Transportation to use the Docket Management Facility.

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

The Coast Guard does not plan to conduct a public meeting, but you may submit a request for one by using one of the four methods specified under ADDRESSES. Please explain why you believe a public meeting would be beneficial. If we determine one would aid this rulemaking, we will hold one at a time and place announced by a later notice in the Federal Register.

The legal basis for the rule is the Coast Guard's authority to establish regulated navigation areas and other limited access areas: 33 U.S.C. 1231; 46 U.S.C. chapter 701, 3306, 3703; 50 U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6, 160.5; Public Law 107-295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1.

Based on the expectation of increased maritime traffic primarily due to the anticipated arrival of approximately fourteen (14) vessels affiliated with planned offshore drilling operations in the Chukchi and Beaufort Seas, temporary safety zones are proposed to ensure the safe transit of vessels within the navigable waters of the Port of Dutch Harbor and adjacent waters extending seaward to the limits of the territorial sea.

The Coast Guard is proposing temporary safety zones due to safety concerns for personnel aboard the support vessels, mariners operating other vessels in the vicinity of Dutch Harbor, and to protect the environment. Private entities have expressed continued interest in interrupting or preventing offshore oil exploration activities in the arctic. Tactics recently employed to interrupt or prevent offshore oil exploration in the arctic include unlawfully boarding and trespassing upon vessels affiliated with drilling operations and interfering with the safe operation and navigation of these vessels. The Coast Guard has been notified that these tactics are likely to continue and has determined that such tactics will increase safety risks to vessels transiting the Port of Dutch Harbor and the adjacent territorial sea. In an effort to mitigate the safety risks and any resulting environmental damage, the Coast Guard is proposing temporary safety zones within the Port of Dutch Harbor and the adjacent territorial sea.

In evaluating this request, the Coast Guard explored relevant safety factors and considered several criteria, including, but not limited to: (1) The amount of commercial activity in and around the Port of Dutch Harbor; (2) safety concerns for personnel aboard the vessels; (3) sensitivity of the environment in the region and potential adverse affects caused by a grounding, allision, or collision; (4) the types and volume of vessels navigating in the vicinity of the Port of Dutch Harbor; and (5) the need to allow for lawful demonstrations without endangering the safe operations of the support vessels. Vessels transiting in the vicinity of the proposed safety zones could consist of large commercial shipping vessels, fishing vessels, tugs and tows, and recreational vessels. Any group or individual intending to conduct lawful demonstrations in the vicinity of offshore exploration support vessels must do so outside of the temporary safety zones.

Results from a thorough and comprehensive examination of the five criteria identified above, in conjunction with International Maritime Organization guidelines and existing regulations, warrant establishment of the proposed temporary safety zones. The proposed regulation would significantly reduce the threat of collisions, allisions, or other incidents which could endanger the safety of all vessels operating on the navigable waters of the Port of Dutch Harbor and the adjacent territorial sea. The Coast Guard proposes temporary safety zones that will prohibit entry into the zones unless specifically authorized by the Captain of the Port, Western Alaska, or his designated on-scene representative.

The increased maritime traffic through the Port of Dutch Harbor and the adjacent territorial sea can potentially create a scenario where the safety of vessels transiting through this area is placed at heightened risk. The proposed temporary safety zones would surround the designated vessels while at anchor, moored or underway on the navigable waters of the Port of Dutch Harbor and the adjacent territorial sea in order to mitigate the potential safety risks associated with the increased vessel traffic. The proposed temporary safety zones will encompass the waters within 25 yards of the support vessel if the support vessel is moored or at anchor, and 100 yards if the support vessel is in transit.

The purpose of the proposed temporary safety zones is to facilitate safe navigation and protect vessels from hazards caused by increased volume of vessel traffic, including hazards that may be intentionally created, in the Port of Dutch Harbor, Broad Bay or adjacent navigable waters encompassed within the area from Cape Cheerful at 54-12.000 N 166-38.000 W north to the limits of the U.S. territorial sea, and from Princess Head at 53-59.000 N 166-25.900 W north to the limits of the U.S. territorial sea.

Enforcing temporary safety zones for each offshore exploration or support vessel while they are on the navigable waters in the Port of Dutch Harbor or the adjacent territorial sea will help prevent disruption to the continued operations of the vital and diverse commercial fleets of Dutch Harbor.

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

Executive Orders 13563, Improving Regulation and Regulatory Review, and 12866, Regulatory Planning and Review, direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This rule has not been designated a significant regulatory action under section 3(f) of Executive Order 12866. Accordingly, the Office of Management and Budget has not reviewed this regulation under Executive Order 12866.

The proposed rule is not a significant regulatory action due to the minimal impact this will have on standard vessel operations within the port of Dutch Harbor because of the limited area affected and the limited duration of the rule. The proposed safety zones are also designed to allow vessels transiting through the area to safely travel around the proposed safety zones without incurring additional costs.

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

The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule would not have a significant economic impact on a substantial number of small entities. This proposed rule could affect the following entities, some of which might be small entities: the owners or operators of vessels intending to transit through or refuel within the Port of Dutch Harbor or adjacent waters, or transit through the waters in the near vicinity of the Port of Dutch Harbor from June 15, 2012 to July 1, 2012.

This safety zone would not have a significant economic impact on a substantial number of small entities for the following reasons: These safety zone restrictions are only effective from June 15, 2012 to July 1, 2012, and are limited only to waters within 25 yards of the support vessel if the support vessel is moored or at anchor, and 100 yards if the support vessel is in transit.

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

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

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

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

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

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

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

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

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

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

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

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

We have analyzed this proposed rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have made a preliminary determination that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. Specifically, the proposed rule will establish a safety zone, which is categorically excluded under Commandant Instruction M16475.lD, Figure 2-1, paragraph (34)(g). A preliminary environmental analysis checklist supporting this determination is available in the docket where indicated under ADDRESSES. We seek any comments or information that may lead to the discovery of a significant environmental impact from this proposed rule.

For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR Part 165 as follows:

We encourage members of the public and others who are interested in or affected by this proposal to participate in this rulemaking 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.

If you submit a comment, please include the docket number for this rulemaking (USCG-2011-0922), indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation. You may submit your comments and material online (via http://www.regulations.gov) or by fax, mail, or hand delivery, but please use only one of these means. If you submit a comment online via www.regulations.gov, it will be considered received by the Coast Guard when you successfully transmit the comment. If you fax, hand deliver, or mail your comment, it will be considered as having been received by the Coast Guard when it is received at the Docket Management Facility. We recommend that you include your name and a mailing address, an email address, or a telephone number in the body of your document so that we can contact you if we have questions regarding your submission.

To submit comments online, go to http://www.regulations.gov, click on the “submit a comment” box, which will then become highlighted in blue. In the “Document Type” drop down menu select “Proposed Rule” and insert “USCG-2011-0922” in the “Keyword” box. Click “Search” then click on the balloon shape in the “Actions” column. Comments submitted by mail or hand delivery must be in an unbound format, no larger than 81/2 by 11 inches, suitable for copying and electronic filing. If you submit comments by mail and would like to know that they reached the Facility, please enclose a stamped, self-addressed postcard or envelope. We will consider all comments and material received during the comment period and may change the rule based on your comments.

To view comments, as well as documents mentioned in this preamble as being available in the docket, go to http://www.regulations.gov, click on the “read comments” box, which will then become highlighted in blue. In the “Keyword” box insert “USCG-2011-0922” and click “Search.” Click the “Open Docket Folder” in the “Actions” column. You may also visit the Docket Management Facility in Room W12-140 on the ground floor of the Department of Transportation West Building, 1200 New Jersey Avenue SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The Coast Guard has an agreement with the Department of Transportation to use the Docket Management Facility.

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

We do not anticipate convening public meetings regarding this proposal. You may, however, submit a request for a public meeting on or before May 3, 2012 using one of the four methods specified under ADDRESSES. Please explain why you believe a public meeting would be beneficial. If we determine that a public meeting would aid this rulemaking, a meeting will be convened at a time and place announced in a subsequent notice in the Federal Register.

The legal basis for the proposed rule is the Coast Guard's authority to establish regulated navigation areas and other limited access areas: 33 U.S.C. 1226, 1231; 46 U.S.C. Chapter 701, 3306, 3703; 50 U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6, 160.5; Pub. L. 107-295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1.

The purpose of this proposed rule is to provide for the safety and security of convention delegates official parties, dignitaries, and the public during the 2012 Republican National Convention.

From August 27, 2012 through August 30, 2012, the 2012 Republican National Convention will be held in Tampa, Florida. Primary venues for the 2012 Republican National Convention are the Tampa Bay Times Forum building and the Tampa Convention Center, both of which are located adjacent or proximate to Garrison Channel, Hillsborough River, Seddon Channel, Sparkman Channel, the unnamed channel north of Davis Islands, Ybor Channel, and Ybor Turning Basin in Tampa, Florida. Secondary venues and venues hosting convention-related activities will take place in other locations throughout Tampa, Florida on or in close proximity to navigable waters.

The Secretary of the Department of Homeland Security has designated the 2012 Republican National Convention as a National Special Security Event. National Special Security Events are significant events, which, due to their political, economic, social, or religious significance, may render them particularly attractive targets of terrorism or other criminal activity. The Federal government provides support, assistance, and resources to state and local governments to ensure public safety and security during National Special Security Events.

The Coast Guard has conducted threat, vulnerability, and risk analyses relating to the maritime transportation system and 2012 Republican National Convention activities. Threats confronting the 2012 Republican National Convention assume two primary forms: homeland security threats and violent or disruptive public disorder. The 2012 Republican National Convention is expected to draw widespread protests by persons dissatisfied with national and foreign policy and the Republican Party agenda. This politically-oriented event has the potential to attract anarchists and others intent on expressing their opposition through violence and criminal activity. The 2012 Republican National Convention also presents an attractive target for terrorist and extremist organizations.

Considerable law enforcement on land may render maritime approaches an attractive alternative. Tampa has significant critical infrastructure in its port area, which is proximate to the downtown area and the Convention's main venues. The Port of Tampa is an industrial-based port, with significant storage and shipment of hazardous materials.

The Department of Homeland Security Small Vessel Security Strategy sets forth several threat scenarios that must be mitigated in the maritime security planning for the 2012 Republican Convention. These threats include the potential use of a small vessel to: (1) Deliver a weapon of mass destruction; (2) launch a stand-off attack weapon; or (3) deliver an armed assault force. 2012 Republican National Convention maritime security planning anticipates these threats, while minimizing the public impact of security operations.

The proposed security zones and accompanying security measures have been specifically developed to mitigate the threats and vulnerabilities identified in the analysis set forth above. Security measures have been limited to the minimum necessary to mitigate risks associated with the identified threats. The Coast Guard considered establishing a waterside demonstration area. However, due to the proximity of the main venue area, the geography of the area in question, the associated threats to the convention, and the potential to interfere with law enforcement and security operations, the Coast Guard determined that establishing such an area would not be feasible. The Coast Guard expects ample landside demonstration areas to be available.

The Coast Guard, on behalf of the 2012 Republican National Convention Public Safety Committee, has initiated an outreach program to inform maritime stakeholders within Tampa of potential disruptions to normal maritime activities during the convention. On January 27, 2012, outreach efforts to the local community began with a presentation to the Tampa Bay Harbor Safety and Security Committee. Additional meetings were held with businesses that operate in the vicinity of the main venue. On February 1, 2012 and February 29, 2012, public meetings were held. At each of these meetings, the Coast Guard presented: (1) General information on National Special Security Events; (2) an overview of the 2012 Republican National Convention; (3) a description of the organization of the public safety committee and subcommittees established for the convention; (4) a brief discussion of the proposed security zones, along with likely limitations on vessel movements and enhanced security measures; and (5) the threat, vulnerability and risk analysis of the convention from a maritime perspective.

Responses to information presented by the Coast Guard were generally positive and supportive. The majority of questions were requests for additional details, such as exactly when the security zone would be in effect and what size vessels will be allowed to transit the zone or use the docks in the primary venue area. Several people asked questions seeking to clarify the restrictions, such as whether boat owners would be able to access their vessels, or whether commercial traffic would be allowed to operate in Sparkman Channel. There were two questions concerning the sufficiency of planned security measures on the south and east sides of Harbour Island.

The Coast Guard responded to all inquiries by stating that the details of the security zones were still under development and were subject to change. At each meeting, the Coast Guard reminded attendees to review the notice of proposed rulemaking when it is published in the Federal Register, and encouraged attendees to submit comments to the docket if they had concerns or questions.

The proposed rule would establish seven temporary security zones in the Captain of the Port St. Petersburg Zone during the 2012 Republican National Convention in Tampa, Florida. The security zones would be enforced from 12:01 p.m. on August 25, 2012 through 11:59 a.m. on August 31, 2012. The security zones are listed below. All coordinates are North American Datum 1983.

(1) Garrison Channel. All waters of Garrison Channel, including adjacent land 20 feet shoreward of the mean high water mark of Garrison Channel. All persons and vessels would be prohibited from entering or transiting the security zone unless authorized by the Captain of the Port St. Petersburg or a designated representative. Vessels with permanent moorings in the security zone would not be permitted to move during the enforcement period. Vessels remaining in the security zone during the enforcement period would be subject to inspection and examination by Coast Guard and other law enforcement officials. Persons desiring to access their vessels within the security zone would be subject to security screenings.

(2) Hillsborough River. All waters of Hillsborough River, including adjacent land 20 feet shoreward of the mean high water mark of Hillsborough River, south of an imaginary line between the following points: Point 1 in position 27°56′44″ N, 82°27′37″ W; and Point 2 in position 27°56′44″ N, 82°27′33″ W. All persons and vessels would be prohibited from entering or remaining within the security zone unless authorized by the Captain of the Port St. Petersburg or a designated representative.

(3) Seddon Channel. All waters of Seddon Channel, including adjacent land 20 feet shoreward of the mean high water mark of Seddon Channel, north of an imaginary line between the following points: Point 1 in position 27°55′52″ N, 82°27′13″ W; and Point 2 in position 27°55′54″ N, 82°27′08″ W. All persons and vessels would be prohibited from entering or remaining within the security zone unless authorized by the Captain of the Port St. Petersburg or a designated representative.

(4) Sparkman Channel. All waters of Sparkman Channel, including adjacent land 20 feet shoreward of the mean high water mark of Sparkman Channel, north of an imaginary line between the following points: Point 1 in position 27°55′51″ N, 82°26′54″ W; and Point 2 in position 27°55′50″ N, 82°26′45″ W. Recreational vessels would be prohibited from entering or remaining in Sparkman Channel unless authorized by the Captain of the Port St. Petersburg or a designated representative. Commercial vessels would be authorized to enter or transit Sparkman Channel, subject to compliance with security protocols established by the Captain of the Port St. Petersburg, including: (a) Advance notice of intent to transit; (b) inspection and examination of all commercial vessels and persons requesting authorization to transit the security zone (including positive identification checks); and (c) embarkation of law enforcement personnel during authorized security zone transits.

(5) Unnamed Channel North of Davis Islands. All waters of the unnamed channel north of Davis Islands, including adjacent land 20 feet shoreward of the mean high water mark of the unnamed channel north of Davis Islands, east of an imaginary line between the following points: Point 1 in position 27°56′16″ N, 82°27′40″ W; and Point 2 in position 27°56′18″ N, 82°27′43″ W. All persons and vessels would be prohibited from entering or remaining within the security zone unless authorized by the Captain of the Port St. Petersburg or a designated representative.

(6) Ybor Channel. All waters of Ybor Channel, including adjacent land 20 feet shoreward of the mean high water mark of Ybor Channel. Recreational vessels would be prohibited from entering or remaining in Ybor Channel unless authorized by the Captain of the Port St. Petersburg or a designated representative. Commercial vessels would be authorized to enter or transit Ybor Channel, subject to compliance with security protocols established by the Captain of the Port St. Petersburg, including: (a) Advance notice of intent to transit; (b) inspection and examination of all commercial vessels and persons requesting authorization to transit the security zone (including positive identification checks); and (c) embarkation of law enforcement personnel during authorized security zone transits.

(7) Ybor Turning Basin. All waters of Ybor Turning Basin, including adjacent land 20 feet shoreward of the mean high water mark of Ybor Turning Basin. Recreational vessels would be prohibited from entering or remaining in Ybor Turning Basin unless authorized by the Captain of the Port St. Petersburg or a designated representative. Commercial vessels would be authorized to enter or transit Ybor Turning Basin, subject to compliance with security protocols established by the Captain of the Port St. Petersburg, including: (a) Advance notice of intent to transit; (b) inspection and examination of all commercial vessels and persons requesting authorization to transit the security zone (including positive identification checks); and (c) embarkation of law enforcement personnel during authorized security zone transits.

All persons and vessels desiring to enter or remain within the regulated areas may contact the Captain of the Port St. Petersburg by telephone at (727) 824-7524, or a designated representative via VHF radio on channel 16, to request authorization. If authorization to enter or remain within the regulated areas is granted by the Captain of the Port St. Petersburg or a designated representative, all persons and vessels receiving such authorization must comply with the instructions of the Captain of the Port St. Petersburg or a designated representative. Recreational vessels authorized to enter or remain within the regulated areas may be subject to boarding and inspection of the vessel and persons onboard.

A Port Community Information Bulletin (PCIB) will be distributed by Coast Guard Sector St. Petersburg. The PCIB will be available on the Coast Guard internet web portal at http://homeport.uscg.mil. PCIBs are located under the Port Directory tab in the Safety and Security Alert links. The Coast Guard would provide notice of the security zones by Local Notice to Mariners, Broadcast Notice to Mariners, public outreach, and on-scene designated representatives.

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

Executive Orders 13563, Improving Regulation and Regulatory Review, and 12866, Regulatory Planning and Review, direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This proposed rule has not been designated a significant regulatory action under section 3(f) of Executive Order 12866. Accordingly, the Office of Management and Budget has not reviewed this proposed rule under Executive Order 12866.

The economic impact of this proposed rule is not significant for the following reasons: (1) The security zones would be enforced for a total of 144 hours; (2) the security zones would be in a location where commercial vessel traffic is expected to be minimal; (3) commercial vessel traffic would be authorized to transit the security zones to the extent compatible with public safety and security; (4) persons and vessels would be able to operate in the surrounding area adjacent to the security zones during the enforcement period; (5) persons and vessels would be able to enter or remain within the security zones if authorized by the Captain of the Port St. Petersburg or a designated representative; and (6) the Coast Guard would provide advance notification of the security zones to the local community by Local Notice to Mariners, Broadcast Notice to Mariners, and public outreach.

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

The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule would not have a significant economic impact on a substantial number of small entities. This proposed rule may affect the following entities, some of which may be small entities: the owners or operators of vessels intending to enter or remain within those portions of Garrison Channel, Hillsborough River, Seddon Channel, Sparkman Channel, unnamed channel north of Davis Islands, Ybor Channel, and Ybor Turning Basin encompassed within the proposed security zones from 12:01 p.m. on August 25, 2012 through 11:59 a.m. on August 31, 2012. For the reasons discussed in the Regulatory Planning and Review section above, this proposed rule would not have a significant economic impact on a substantial number of small entities.

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

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this proposed rule so that they can better evaluate its effects on them and participate in the rulemaking. If the proposed rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact Marine Science Technician First Class Nolan L. Ammons, Sector St. Petersburg Prevention Department, Coast Guard; telephone (813) 228-2191, email D07-SMB-Tampa-WWM@uscg.mil. The Coast Guard will not retaliate against small entities that question or complain about this proposed rule or any policy or action of the Coast Guard.

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

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

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

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

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

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

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

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

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

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

We have analyzed this proposed rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have made a preliminary determination that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. A preliminary environmental analysis checklist supporting this determination is available in the docket where indicated under ADDRESSES. This proposed rule involves establishing seven temporary security zones, as described in paragraph 34(g) of the Instruction that will be enforced for a total of 144 hours. We invite any comments or information that may lead to the discovery of a significant environmental impact from this proposed rule.

For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR part 165 as follows:

The analysis published in the January 24, 2003 final rule (68 FR 3465) reviewed fiscal year (FY) 1998 individual service transactions valued in excess of $25,000. In FY 1998, the Veterans Health Administration (VHA) reported approximately 6,000 individual service transactions above $25,000 excluding classification codes C, architect/engineering; E, purchase of structures; Q402, nursing home; Y, construction; and Z, maintenance of real property, all of which VA believes are not covered by this rule. Of those 6,000 transactions, approximately 3,000 were awarded to small businesses and approximately 900 were reported to non-profit businesses. Similar figures were reported in FY 1999. Of the total acquisition dollars associated with these 6,000 annual awards, we estimate that in FY 1998, approximately 42 percent, and in FY 1999, approximately 44 percent, were awarded to small businesses. In reviewing this analysis, VA determined that the impact on small businesses was minimal because the rule does not apply to the majority of VA acquisitions.

The rule only applies to competitive acquisitions of commercial services or the use of medical equipment or space conducted by VHA that specifically reference the authority of 38 U.S.C. 8153. The rule does not apply to acquisitions of supplies or equipment made on behalf of VHA or to acquisitions made on behalf of Veterans Benefits Administration (VBA) or National Cemetery Administration (NCA). Additionally, the rule does not apply to acquisitions of services for which other specific authorities apply, such as acquisitions of nursing home care services, which are acquired under the authority of 38 U.S.C. 1720, or to acquisitions of non-commercial services, such as construction. Therefore, VA developed the rule in a way that mitigated small business impact to the extent possible while still fulfilling the Veterans' Health Care Eligibility Reform Act of 1996 mandates.

VA has initiated a review of this rule under section 610 of the Regulatory Flexibility Act to determine if the rule should be continued without change, or should be amended or rescinded, to minimize adverse economic impacts on small entities. Please note that VA is in the process of rewriting the VAAR and will be reviewing the requirements of this rule in detail as part of this revision initiative. In the interim, VA solicits, and will consider, public comments on the following factors under this rule: (1) The continued need for the rule; (2) the nature of complaints or comments received concerning the rule; (3) the complexity of the rule; (4) the extent to which the rule overlaps, duplicates, or conflicts with other Federal, State, or local government rules; and (5) the degree to which technology, economic conditions, or other factors have changed in the area affected by the rule. VA still considers the rule necessary as it establishes simplified acquisition procedures for VA to acquire health-care resources consisting of commercial services or the use of medical equipment or space as authorized by 38 U.S.C. 8151-8153. No comments were received when the rule was initially published for public comment. In addition, VA has not received any complaints since the rule's final publication. The rule is not overly complex; however, it does overlap and change select provisions of Federal Acquisition Regulation (FAR) Part 15 on negotiated acquisitions. This is to provide VA contracting officers with additional tools and procedures, along with some simplification of the negotiated acquisition process, when deemed advantageous to VA. This rule does not in any way change the fundamental concept in acquisitions that all offerors are treated fairly. Consideration may be given to updating the rule to reflect any changes to FAR references or other citations of authority.

The Secretary of Veterans Affairs, or designee, approved this document and authorized the undersigned to sign and submit the document to the Office of the Federal Register for publication electronically as an official document of the Department of Veterans Affairs. John R. Gingrich, Chief of Staff, Department of Veterans Affairs, approved this document on March 26, 2012, for publication.

Availability

A copy of MBNMS's application, and other supplemental documents, may be obtained by writing to the address specified above (see ADDRESSES), calling the contact listed above (see FOR FURTHER INFORMATION CONTACT), or visiting the internet at: http://www.nmfs.noaa.gov/pr/permits/incidental.htm.

Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq.) direct the Secretary of Commerce 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 either regulations are issued or, if the taking is limited to harassment, a notice of a proposed authorization is provided to the public for review.

Authorization for incidental takings shall be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s), will not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses (where relevant), and if the permissible methods of taking and requirements pertaining to the mitigation, monitoring and reporting of such takings are set forth. 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.”

Except with respect to certain activities not pertinent here, the MMPA defines `harassment' as: “any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild [“Level A harassment”]; or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering [“Level B harassment”].”

On April 28, 2011, NMFS received a complete application from MBNMS requesting authorization for take of two species of marine mammals incidental to coastal fireworks displays conducted at MBNMS under authorizations issued by MBNMS. NMFS first issued an incidental harassment authorization (IHA) under section 101(a)(5)(D) of the MMPA to MBNMS on July 4, 2005 (70 FR 39235; July 7, 2005), and subsequently issued 5-year regulations governing the annual issuance of Letters of Authorization (LOAs) under section 101(a)(5)(A) of the MMPA (71 FR 40928; July 19, 2006). Upon expiration of those regulations, NMFS issued MBNMS an IHA (76 FR 29196; May 20, 2011), which expires on July 3, 2012. The requested regulations would be valid from July 4, 2012 until July 3, 2017. Marine mammals would be exposed to elevated levels of sound as a result of authorized fireworks displays, as well as increased human activity associated with those displays. Because the specified activities have the potential to take marine mammals present within the action area, MBNMS requests authorization to take, by Level B harassment only, California sea lions (Zalophus californianus) and harbor seals (Phoca vitulina).

The MBNMS adjoins 276 mi (444 km), or approximately 25 percent, of the central California coastline, and encompasses ocean waters from mean high tide to an average of 25 mi (40 km) offshore between Rocky Point in Marin County and Cambria in San Luis Obispo County. Fireworks displays have been conducted over current MBNMS waters for many years as part of national and community celebrations (e.g., Independence Day, municipal anniversaries), and to foster public use and enjoyment of the marine environment. In central California, marine venues are the preferred setting for fireworks in order to optimize public access and avoid the fire hazard associated with terrestrial display sites. Many fireworks displays occur at the height of the dry season in central California, when area vegetation is particularly prone to ignition from sparks or embers.

In 1992, the MBNMS was the first national marine sanctuary (NMS) to be designated along urban shorelines and therefore has addressed many regulatory issues previously not encountered by the NMS program. Authorization of professional fireworks displays has required a steady refinement of policies and procedures related to this activity. Fireworks displays, and the attendant increase in human activity, are known to result in the behavioral disturbance of pinnipeds, typically in the form of temporary abandonment of haul-outs. As a result, pinnipeds hauled out in the vicinity of authorized fireworks displays may exhibit behavioral responses that indicate incidental take by Level B harassment under the MMPA. Numbers of California sea lions and harbor seals, the species that may be subject to harassment, have been recorded extensively at four regions where fireworks displays are authorized in MBNMS. Based on these data and MBNMS's estimated maximum number of fireworks displays, MBNMS is requesting authorization to incidentally harass up to 4,465 California sea lions and 270 harbor seals annually over the 5-year time span of the proposed rule, from July 4, 2012 to July 3, 2017.

Since 1993, the MBNMS, a component of NOAA's Office of National Marine Sanctuaries, has processed requests for the professional display of fireworks that affect MBNMS. The MBNMS has determined that debris fallout (i.e., spent pyrotechnic materials) from fireworks events may constitute a discharge into the sanctuary and thus violate sanctuary regulations, unless an authorization is issued by the superintendent. Therefore, sponsors of fireworks displays conducted in the MBNMS are required to obtain sanctuary authorization prior to conducting such displays (see 15 CFR 922.132).

Professional pyrotechnic devices used in fireworks displays can be grouped into three general categories: Aerial shells (paper and cardboard spheres or cylinders ranging from 2-12 in (5-30 cm) in diameter and filled with incendiary materials), low-level comet and multi-shot devices similar to over-the-counter fireworks (e.g., roman candles), and ground-mounted set piece displays that are mostly static in nature.

Aerial shells are launched from tubes (i.e., mortars), using black powder charges, to altitudes of 200 to 1,000 ft (61 to 305 m) where they explode and ignite internal burst charges and incendiary chemicals. Most of the incendiary elements and shell casings burn up in the atmosphere; however, portions of the casings and some internal structural components and chemical residue may fall back to the ground or water, depending on prevailing winds. An aerial shell casing is constructed of paper/cardboard or plastic and may include some plastic or paper internal components used to compartmentalize chemicals within the shell. Within the shell casing is a burst charge (usually black powder) and a recipe of various chemical pellets (i.e., stars) that emit colored light when ignited. Chemicals commonly used in the manufacturing of pyrotechnic devices include: Potassium chlorate, potassium perchlorate, potassium nitrate, sodium benzoate, sodium oxalate, ammonium, perchlorate, strontium nitrate, strontium carbonate, sulfur, charcoal, copper oxide, polyvinyl chloride, iron, titanium, shellac, dextrine, phenolic resin, and aluminum. Manufacturers consider the amount and composition of chemicals within a given shell to be proprietary information and only release aggregate descriptions of internal shell components. The arrangement and packing of stars and burst charges within the shell determine the type of effect produced upon detonation.

Attached to the bottom of an aerial shell is a lift charge of black powder. The lift charge and shell are placed at the bottom of a mortar that has been buried in earth/sand or affixed to a wooden rack. After a fuse attached to the lift charge is ignited with an electric charge or heat source, the lift charge explodes and propels the shell through the mortar tube and into the air to a height determined by the amount of powder in the lift charge and the weight of the shell. As the shell travels skyward, a time-delay secondary fuse ignites the burst charge within the shell at peak altitude. The burst charge then detonates, igniting and scattering the stars, which may, in turn, produce small secondary explosions. Shells can be launched one at a time or in a barrage of simultaneous or quick succession launches. They are designed to detonate between 200 and 1,000 ft (61 to 305) above ground level (AGL).

In addition to color shells (also known as designer or starburst shells), a typical fireworks show will usually include a number of aerial `salute' shells. The primary purpose of salute shells is to signify the beginning and end of the show and produce a loud percussive audible effect. These shells are typically 2-3 in (5-7 cm) in diameter and packed with black powder to produce a punctuated explosive burst at high altitude. From a distance, these shells sound similar to cannon fire when detonated.

Low-level devices consist of stars packed linearly within a tube which, when ignited, exit the tube in succession producing a fountain effect of single or multi-colored light as the stars incinerate during the course of their flight. Typically, the stars burn rather than explode, thus producing a ball or trail of sparkling light to a prescribed altitude where they extinguish. Sometimes they may terminate with a small explosion similar to a firecracker. Other low-level devices emit a projected hail of colored sparks or perform erratic low-level flight while emitting a high-pitched whistle, or emit a pulsing light pattern or crackling or popping sound effects. In general, low-level launch devices and encasements remain on the ground or attached to a fixed structure and can be removed upon completion of the display. Common low-level devices are multi-shot devices, mines, comets, meteors, candles, strobe pots and gerbs. They are designed to produce effects between 0 and 200 ft (61 m) AGL.

Set piece or ground level fireworks are primarily static in nature and remain close to the ground. They are usually attached to a framework that may be crafted in the design of a logo or familiar shape, illuminated by pyrotechnic devices such as flares, sparklers and strobes. These fireworks typically employ bright flares and sparkling effects that may also emit limited sound effects such as cracking, popping, or whistling. Set pieces are usually used in concert with low-level effects or an aerial show and sometimes act as a centerpiece for the display. They may have some moving parts, but typically do not launch devices into the air. Set piece displays are designed to produce effects between 0 and 50 ft (15 m) AGL.

Each display is unique, according to the type and number of shells, the pace and length of the show, the acoustic characteristics of the display site, and the weather and time of day. The vast majority (97 percent) of fireworks displays authorized in the Sanctuary between 1993 and 2005 were aerial displays that usually included simultaneous low-level displays, and this trend has continued. An average large display may last 20 minutes and include approximately 700 aerial shells and 750 low-level effects. An average smaller display may last approximately seven minutes and include 300 aerial shells and 550 low-level effects. Recent displays have shown a declining trend in the total number of shells used in aerial displays, likely due to increasing shell costs and/or fixed entertainment budgets. Low-level displays sometimes compensate for the absence of an aerial show by squeezing a larger number of effects into a shorter timeframe. This results in a dramatic and rapid burst of light and sound effects at low level. A large low-level display may expend 4,900 effects within a 7-minute period, and a small display will use an average of 1,800 effects within the same timeframe. Some fireworks displays are synchronized with musical broadcasts over loudspeakers and may incorporate other non-pyrotechnic sound and visual effects.

The MBNMS issued 87 authorizations for professional fireworks displays from 1993-2010. However, the MBNMS staff projects that as many as twenty coastal displays per year may be conducted in, or adjacent to, MBNMS boundaries in the future. Thus, the number of displays would be limited to not more than twenty events per year in four specific areas along 276 mi (444 km) of coastline. Fireworks displays would not exceed 30 minutes (with the exception of up to two displays per year, each not to exceed 1 hour) in duration and would occur with an average frequency of less than or equal to once every 2 months within each of the four prescribed display areas. NMFS believes—and extensive monitoring data indicates—that incidental take resulting from fireworks displays would be, at most, the short-term flushing and evacuation of non-breeding haul-out sites by California sea lions and harbor seals.

A more detailed description of the fireworks displays authorized by MBNMS may be found in MBNMS' application, in MBNMS' Assessment of Pyrotechnic Displays and Impacts within the MBNMS 1993-2001 (2001), or in the report of Marine Mammal Acoustic and Behavioral Monitoring for the MBNMS Fireworks Display, 4 July 2007 (2007), which are available at: http://www.nmfs.noaa.gov/pr/permits/incidental.htm.

The Monterey Bay area is located in the Oregonian province subdivision of the Eastern Pacific Boreal Region. The six types of habitats found in the bay area are: (1) Submarine canyon habitat, (2) nearshore sublittoral habitat, (3) rocky intertidal habitat, (4) sandy beach intertidal habitat, (5) kelp forest habitat, and (6) estuarine/slough habitat. Monterey Bay supports a wide array of temperate cold-water species with occasional influxes of warm-water species, and this species diversity is directly related to the diversity of habitats.

Pyrotechnic displays within the sanctuary are conducted from a variety of coastal launch sites (e.g., beaches, bluff tops, piers, offshore barges, golf courses). Authorized fireworks displays would be confined to only four general prescribed areas (with seven total sub-sites) within the sanctuary, while displays along the remaining 95 percent of sanctuary coastal waters would be prohibited. These sites were approved for fireworks events based on their proximity to urban areas and pre-existing high human use patterns, seasonal considerations such as the abundance and distribution of marine wildlife, and the acclimation of wildlife to human activities and elevated ambient noise levels in the area.

The four conditional display areas are located, from north to south, at Half Moon Bay, the Santa Cruz/Soquel area, the northeastern Monterey Peninsula, and Cambria (Santa Rosa Creek) (see Maps A-J in MBNMS' application). The number of displays would be limited to not more than 20 total events per year within these four specific areas combined, along the whole 276 mi (444 km) of coastline.

This site, at Pillar Point Harbor, is typically used annually for a 20-minute, medium-sized Independence Day fireworks display on July 4. The launch site is on a sandy beach inside and adjacent to the east outer breakwater, upon which the aerial shells are launched and aimed to the southwest.

The harbor immediately adjacent to the impact area is home to a major commercial fishing fleet that operates at all times. The harbor also supports a considerable volume of recreational boat traffic. Half Moon Bay Airport is located adjacent to the harbor and approach and departure routes pass directly over the acute impact area. The airport is commonly used by general aviation pilots for training, with an annual average attendance of approximately fifteen flights per day. On weekends, with good weather, the airport may accommodate as many as fifty flights per day. Beachgoers and water sports enthusiasts use the beaches to the south of the launch site. The impact area is also used by recreational fishermen, surfers, swimmers, boaters, and personal watercraft operators. To the north, around Pillar Point, is an area known as `Mavericks', considered a world-class surfing destination. Surfing contests are held periodically at Mavericks. The impact area is also subjected to daily traffic noise from California Highway 1, which runs along the coast and is the primary travel route through the area.

Concentrations of harbor seals are present to the north around Pillar Point and on the coast to the south of the launch site. It is possible that individual elephant seals (Mirounga angustirostris) may enter the area from breeding sites at Año Nuevo Island and the Farallon Islands, but breeding occurs in the winter and firework displays in Half Moon Bay are limited to summer. Gray whales (Eschrichtius robustus) typically migrate west of the reefs extending south from Pillar Point.

Three separate fireworks display sites (Santa Cruz, Capitola, and Aptos, from west to east) are located within the Santa Cruz/Soquel area. The Santa Cruz launch site is typically used annually for City of Santa Cruz anniversary fireworks displays in early October. The launch site is on a sandy beach, adjacent to the Santa Cruz boardwalk and the San Lorenzo River and along the west bank. The aerial shells are aimed to the south.

The harbor immediately adjacent to the Santa Cruz impact area is home to a commercial fishing fleet that operates at all times. The harbor also supports a large volume of recreational boater traffic. The launch site is in the center of the shoreline of a major urban coastal city. The beaches to the west of the launch site are adjacent to a large coastal amusement park complex and are used extensively by beachgoers and water sport enthusiasts from the local area as well as San Jose and San Francisco. The impact area is used by boaters, recreational fishermen, swimmers, surfers, and other recreational users. Immediately southwest of the launch site is a mooring field and the Santa Cruz Municipal Pier which is lined with retail shops, restaurants, and offices. To the west of the pier is a popular local surfing destination known as `Steamer Lane'. Surfing contests are routinely held at the site. During the period from sunset through the duration of the fireworks display, 40-70 vessels may anchor within the acute impact area to view the fireworks, with vessels moving throughout the waters south of the launch site to take up position. In addition, U.S. Coast Guard (USCG) and harbor patrol vessels motor through the impact area to maintain a safety zone around the launch site.

The Capitola launch site has been used once since 1993 for a 50-year City of Capitola anniversary fireworks display, on May 23, 1999. This display was one of the largest volume fireworks displays conducted in the MBNMS, incorporating 1,700 aerial shells and 1,800 low-level effects and lasting 25 minutes. The launch site was on the Capitola Municipal Pier, adjacent to the City of Capitola. The aerial shells were aimed above the pier.

The Capitola impact area is immediately adjacent to a small urban community. The beaches to the east and west of the launch site are used daily by beachgoers and water sport enthusiasts from the regional area. The impact area is used by boaters, recreational fishermen, swimmers, surfers, and other recreational users. To the east of the pier is a mooring field and popular public beach.

The Aptos site, at Seacliff State Beach, is typically used annually for a large fundraiser, conducted by the Monte Foundation, for Aptos area schools in October. At the seaward end of the Aptos Pier is a historic 400-ft (122-m) cement vessel, which was purposefully grounded in its current position as an extension of the pier, but which has since been restricted to public access. The exposed interior decks of the vessel have created convenient haul-out surfaces for harbor seals. In a 2000 survey, the MBNMS recorded as many as 45 harbor seals hauled out on the vessel in the month of October. The fireworks launch site is on the Aptos Pier and part of the cement vessel. The aerial shells are aimed above and to the south of the pier. The large aerial show typically lasts for approximately 20 minutes.

The Aptos impact area is immediately adjacent to a recreational beach. The beaches to the east and west of the launch site are used daily by beachgoers and water sport enthusiasts from the regional area. The impact area is used by boaters, recreational fishermen, swimmers, surfers, and other recreational users, but typically at moderate to light levels of activity. To the east and west of the pier are public use beach areas and private homes at the top of steep coastal bluffs. During the period from sunset through the duration of the fireworks display, 30-40 vessels anchor within the acute impact area to view the fireworks, typically traveling throughout the waters seaward of the cement vessel to take up position. In addition, USCG and State Park Lifeguard vessels motor through the impact area to maintain a safety zone around the launch site.

California sea lions routinely use the Santa Cruz Municipal Pier as a haul-out and resting site. Gray whales typically migrate along a southerly course, west of Point Santa Cruz and away from the pier.

Two separate fireworks display sites (City of Monterey and Pacific Grove) are located within the Monterey Peninsula area. For Independence Day, the City of Monterey typically launches approximately 750 shells and an equal number of low-level effects from a barge anchored approximately 1,000 ft (305 m) east of Municipal Wharf II and 1,000 ft north of Del Monte Beach. The aerial shells are aimed above and to the northeast. The City's display typically lasts approximately 20 minutes and is accompanied by music broadcasted from speakers on Wharf II. A Monterey New Year's festival has at times used the City's launch barge for an annual fireworks display. This medium-size aerial display typically lasts approximately 8 minutes, when it occurs. In addition, several private displays have been authorized from a launch site on Del Monte Beach, including an aerial display and low-level displays, lasting approximately 7 minutes.

The Monterey fireworks impact area lies directly under the approach/departure flight path for Monterey Peninsula Airport and is commonly exposed to noise and exhaust from general aviation, commercial, and military aircraft at approximately 500 ft (152 m) altitude. The airport supports approximately 280 landings/takeoffs per day in addition to touch-and-goes (landing and takeoff training). Commercial and recreational vessels operate at all hours from the adjacent harbor. A thirty-station mooring field lies within the acute impact area between the launch barge and Municipal Wharf II. The moorings are usually completely occupied during the annual fireworks event. Auto traffic and emergency vehicles are audible from Lighthouse and Del Monte Avenues, main transportation arteries along the adjacent shoreline. The impact area is heavily utilized by recreational users and harbor operations. During the period from sunset through the duration of the fireworks display, 20-30 vessels anchor within the acute impact area to view the fireworks, with vessels transiting through the waters south of the launch site to take up position. In addition, USCG and harbor patrol vessels motor through the impact area to maintain a safety zone around the launch site.

The Pacific Grove site is typically used for an annual `Feast of Lanterns' fireworks display in late July. The Feast of Lanterns is a community event that has been celebrated in the City of Pacific Grove for over 100 years. The fireworks launch site is at the top of a rocky coastal bluff adjacent to an urban recreation trail and public road. The aerial shells are aimed to the northeast. The small aerial display typically lasts approximately 20 minutes and is accompanied by music broadcasted from speakers at Lover's Cove. The fireworks are part of a traditional outdoor play that concludes the festival.

The Pacific Grove launch site is in the center of an urban shoreline, adjacent to a primary public beach in Pacific Grove. The shoreline to the east and west of the launch site is lined with residences and a public road and pedestrian trail. The impact area is used heavily by boaters and other recreational users. The center of the impact area is in a cove with 30-40 ft (9-12 m) coastal bluffs. Immediately north of the launch site is a popular day use beach area. At peak usage, the beach may support up to 500 visitors at any given time. Surfing activity is common immediately north of the site. During the period from sunset through the duration of the fireworks display, 10-20 vessels anchor within the acute impact area to view the fireworks. A USCG vessel motors through the impact area to maintain a safety zone seaward of the launch site.

The largest concentration of marine mammals near the Monterey impact area consists of California sea lions resting at the Monterey breakwater approximately 700 yd (640 m) northwest of the center of the impact area. Harbor seals routinely use offshore rocks and wash rocks for haul-outs and also forage in the area.

The site is typically used annually for a 20-minute, small Independence Day fireworks display on July 4. The launch site is on a sandy beach at Shamel County Park, and the aerial shells are aimed to the west. Immediately north of the launch site is the mouth of Santa Rosa Creek and Lagoon. The impact area is immediately adjacent to a county park and recreational beach. The impact area is used by boaters, recreational fishermen, swimmers, surfers, and beachgoers. The shoreline south of the launch site is lined with hotels, abuts a residential neighborhood, and is part of San Simeon State Beach.

Low concentrations of harbor seals are typically present in the impact area. California sea lions are present in the impact area in moderate numbers. It is possible that individual elephant seals may enter the area from breeding sites to the north at Point Piedras Blancas, but breeding occurs in the winter and displays at Cambria are limited to the summer. Gray whales migrate along the coast in this area and may pass through the acute impact area, but displays typically occur outside of peak gray whale migration period.

Twenty-six species of marine mammals are known from the Monterey Bay area. Only six of these species, however, are likely to be present in the acute impact area (the area where sound, light, and debris effects may have direct impacts on marine organisms and habitats) during a fireworks display. These species include the California sea lion, harbor seal, southern sea otter (Enhydra lutris), bottlenose dolphin (Tursiops truncatus), harbor porpoise (Phocoena phocoena), and gray whale. The northern elephant seal is rarely seen in the area.

Though the three aforementioned cetaceans are known to frequent nearshore areas within the sanctuary, they have never been reported in the vicinity of a fireworks display, nor have there been any reports to the MBNMS of stranding events or of injured/dead animals discovered after any display. Because sound attenuates rapidly across the air-water interface, these animals would likely not encounter the effects of fireworks except when surfacing for air. NMFS does not anticipate any take of cetaceans and they are not addressed further in this document.

Past sanctuary observations have not detected any disturbance to sea otters as a result of the fireworks displays; however, past observations have not included specific surveys for this species. Sea otters do frequent all general display areas. Sea otters and other species may temporarily depart the area prior to the beginning of the fireworks display due to increased human activities. Some sea otters in Monterey harbor have become well-acclimated to very intense human activity, often continuing to feed undisturbed as boats pass simultaneously on either side and within 20 ft (6 m) of the otters. It is therefore possible that select individual otters may have a higher tolerance level than others to fireworks displays. Otters in residence within the Monterey harbor display a greater tolerance for intensive human activity than their counterparts in more remote locations. However, otters are not under NMFS' jurisdiction. The MBNMS consulted with the U.S. Fish and Wildlife Service (USFWS) pursuant to section 7 of the Endangered Species Act (ESA) regarding effects on southern sea otters. The USFWS issued a biological opinion on June 22, 2005, which concluded that the authorization of fireworks displays, as proposed, is not likely to jeopardize the continued existence of endangered and threatened species within the sanctuary or to destroy or adversely modify any listed critical habitat. The USFWS further found that MBNMS would be unlikely to take any southern sea otters, and therefore issued neither an incidental take statement under the ESA nor an IHA.

The northern elephant seal is seen so infrequently in the areas with fireworks displays that they are not likely to be impacted by fireworks displays. Therefore, the only species likely to be harassed by the fireworks displays are the California sea lion and the harbor seal. Information relevant to the distribution, abundance and behavior of the species that are most likely to be impacted by fireworks displays within the MBNMS is provided below.

The population of California sea lions ranges from southern Mexico to southwestern Canada (Carretta et al., 2007). In the United States, pupping typically occurs in late May to June. Most individuals of this species breed during July on the Channel Islands off southern California (100 mi (161 km) south of the MBNMS) and off Baja and mainland Mexico (Odell, 1981), although a few pups have been born on Año Nuevo Island (Keith et al., 1984). Following the breeding season on the Channel Islands, most adult and sub-adult males migrate northward to central and northern California and to the Pacific Northwest, while most females and young animals either remain on or near the breeding grounds throughout the year or move southward or northward, as far as Monterey Bay.

Since nearing extinction in the early 1900s, the California sea lion population has increased and is now robust and growing at a current rate of 5.6 to 6.5 percent per year (based on pup counts) with an estimated minimum population of 141,842 animals. The total population level is estimated at 238,000 animals. The population is not listed as endangered or threatened under the ESA, nor is this a depleted or strategic stock under the MMPA.

In any season, California sea lions are the most abundant pinniped in the area (Bonnell et al., 1983), primarily using the central California area to feed during the non-breeding season. After breeding farther south along the coast and migrating northward, populations peak in the Monterey Bay area in fall and winter and are at their lowest numbers in spring and early summer. A minimum of 12,000 California sea lions are probably present at any given time in the MBNMS region. Año Nuevo Island is the largest single haul-out site in the sanctuary, hosting as many as 9,000 California sea lions at times (Weise, 2000; Lowry, 2001). Stage structure of California sea lions within the sanctuary varies by location, but generally, the majority are adult and subadult males.

Harbor seals are distributed throughout the west coast of the United States, inhabiting near-shore coastal and estuarine areas from Baja California, Mexico, to the Pribilof Islands in Alaska. They generally do not migrate, but have been known to travel extensive distances to find food or suitable breeding areas (Carretta et al., 2006). In California, approximately 400-600 harbor seal haul-out sites are widely distributed along the mainland and on offshore islands (Carretta et al., 2006).

The population of the California stock of harbor seals is healthy and growing at a current rate of 3.5 percent per year with an estimated minimum population of 31,600 animals (Carretta et al., 2006). The total California population is estimated at 34,233 animals. The population is not listed as endangered or threatened under the ESA, nor is this a depleted or a strategic stock under the MMPA.

Harbor seals are residents in the MBNMS throughout the year, occurring mainly near the coast. They haul out at dozens of sites along the coast from Point Sur to Año Nuevo. Within MBNMS, tagged harbor seals have been documented to move substantial distances (10-20 km (3.9-7.8 mi)) to foraging areas each night (Oxman, 1995; Trumble, 1995). The species does breed in the sanctuary; pupping within the sanctuary occurs primarily during March and April followed by a molt during May and June. Peak abundance on land within the sanctuary is reached in late spring and early summer when harbor seals haul out to breed, give birth to pups, and molt (MBNMS, 1992). Nicholson (2000) studied harbor seals on the northeast Monterey Peninsula (an area with the largest single concentration of animals within the sanctuary) for 2 years. Using mark-recapture methods based on re-sightings of recognizable individuals, Nicholson (2000) estimated an approximate stage structure in the study area of 38 percent adult females, 15 percent adult males, 34 percent subadults, and 13 percent yearlings or juveniles.

Temporary (auditory) threshold shift (TTS) is the mildest form of hearing impairment that can occur during exposure to a strong sound (Kryter, 1985). When an animal experiences TTS, its hearing threshold rises and a sound must be stronger in order to be heard. TTS can last from minutes or hours to (in cases of strong TTS) days. Richardson et al. (1995) noted that the magnitude of TTS depends on the level and duration of noise exposure, among other considerations. For sound exposures at or somewhat above the TTS threshold, hearing sensitivity recovers rapidly after exposure to the noise ends.

Permanent (auditory) threshold shift (PTS) occurs when there is physical damage to the sound receptors in the ear. In some cases there can be total or partial deafness, while in other cases the animal has an impaired ability to hear sounds in specific frequency ranges. Although there is no specific evidence that exposure to fireworks can cause PTS in any marine mammals, physical damage to a mammal's ears can potentially occur if it is exposed to sound impulses that have very high peak pressures, especially if they have very short rise times (time required for sound pulse to reach peak pressure from the baseline pressure). Such damage can result in a permanent decrease in functional sensitivity of the hearing system at some or all frequencies.

Temporary or permanent hearing impairment is a possibility when marine mammals are exposed to very strong sounds, but there has been no specific documentation of this for marine mammals exposed to fireworks. Some factors that contribute to onset of PTS are as follows: (1) Exposure to a single very intense noise, (2) repetitive exposure to intense sounds that individually cause TTS but not PTS, and (3) recurrent ear infections or (in captive animals) exposure to certain drugs.

Based on current information, NMFS takes a precautionary approach in using an exposure threshold of 190 dB re 1 µPa (rms) for onset of Level A harassment (injury) for pinnipeds under water (NMFS 2000). This level would approximately equal an A-weighted airborne sound intensity level of 128 dB re 20 µPa. Precise exposure thresholds for airborne sounds have not been determined; however, monitoring of marine mammal reactions to rocket launches at Vandenberg Air Force Base (VAFB) has indicated that behavioral harassment may occur for harbor seals at received levels of 90 dB re 20 µPa, while similar reactions may occur at levels of 100 dB re 20 µPa for other pinniped species. In those studies, not all harbor seals left a haul-out during a launch unless the Sound Exposure Level (SEL) was 100 dB or above (which, in the case of the VAFB launch locations and durations, is equivalent to an SPL of 89 to 95 dB), and only short-term effects were detected.

In order to determine if harbor seals experience any change in their hearing sensitivity as a result of launch noise, researchers at VAFB conducted Auditory Brainstem Response (ABR) testing on ten harbor seals prior to and after the launches of three Titan IV rockets (one of the loudest launch vehicles used at VAFB). Detailed analysis of the changes in waveform latency and waveform replication of the ABR measurements showed that there were no detectable changes in the seals' hearing sensitivity as a result of the launch noise, an A-weighted SPL of approximately 111 dB and an A-weighted SEL from 96.6 to 103.6 dB (SRS Technologies, 2001).

In 2001, the MBNMS and USFWS conducted in-depth monitoring of the July 4 City of Monterey fireworks display. Monitors recorded species abundance before, during, and after the event and measured the decibel level of exploding fireworks. A hand-held decibel meter was located aboard a vessel adjacent to the Monterey Breakwater, approximately one-half mile from the fireworks launch site. The highest sound pressure level (SPL) reading observed on the decibel meter during the fireworks display was 82 dB. The typical decibel levels for the display ranged from 70 to 78 dB, and no salute effects were used in the display. An ambient noise level of 58 dB was recorded at the survey site 30 minutes following the conclusion of the fireworks. MBNMS conducted additional in-depth acoustic and behavioral monitoring at the breakwater, where sea lions typically haul out, during the 2007 City of Monterey July 4 celebration. This effort is described later in this document (see Summary of Previous Monitoring).

Given the frequency, duration, and intensity of sounds (maximum measured 82 dB for larger aerial shells) that marine mammals may be exposed to, it is unlikely that they would sustain temporary, much less permanent, hearing impairment during fireworks displays.

In some display locations, marine mammals may avoid or temporarily depart the impact area during the hours immediately prior to the beginning of the fireworks display due to increased human recreational activities associated with the overall celebration event (e.g., noise, boating, kayaking, fishing, diving, swimming, surfing, picnicking, beach combing, tidepooling), and as a fireworks presentation progresses, most marine mammals generally evacuate the impact area. In particular, a flotilla of recreational and commercial boats usually gathers in a semi-circle within the impact area to view the fireworks display from the water. From sunset until the start of the display, security vessels of the USCG and/or other government agencies often patrol throughout the waters of the impact area to keep vessels a safe distance from the launch site.

Sea lions have been observed evacuating haul-out areas upon initial detonation of fireworks, and then returning to the haul-out sites within 4 to 15 hours following the end of the fireworks display. Harbor seals have been seen to remain in the water after initial fireworks detonation around the haul-out site. Sea lions in general are more tolerant of noise and visual disturbances than harbor seals. Adult sea lions have likely habituated to many sources of disturbance and are therefore much more tolerant of nearby human activities. For both pinniped species, pups and juveniles are more likely to be harassed when exposed to disturbance than older animals.

NMFS and MBNMS found no peer-reviewed literature that specifically investigates the response of California sea lions and harbor seals to commercial fireworks displays. However, as described previously, extensive studies have been conducted at VAFB to determine responses by pinnipeds to the effects of periodic rocket launches, the light and sound effects of which would be roughly similar to the effects of pyrotechnic displays, but of greater intensity. This scientific research program was conducted to determine the long-term cumulative impacts of space vehicle launches on the haul-out behavior, population dynamics and hearing acuity of harbor seals at VAFB. In addition, on some occasions, the effects of sonic booms on pinniped populations in the northern Channel Islands have been studied.

The response of harbor seals to rocket launch noise at VAFB depended on the intensity of the noise (size of the vehicle and its proximity) and the age of the seal (SRS Technologies, 2001). The highest noise levels are typically from launch vehicles with launch pads closest to the haul-out sites. The percentage of seals leaving the haul-out increases with noise levels up to approximately 100 dB A-weighted SEL, after which almost all seals leave, although recent data has shown that an increasing percentage of seals have remained on shore, and those that remain are adults. Given the high degree of site fidelity among harbor seals, it is likely that those seals that remained on the haul-out site during rocket launches had previously been exposed to launches; that is, it is possible that adult seals have become acclimated to the launch noise and react differently than the younger inexperienced seals. Of the twenty seals tagged at VAFB, eight (40 percent) were exposed to at least one launch disturbance but continued to return to the same haul-out site. Three of those seals were exposed to two or more launch disturbances. Most of the seals exposed to launch noise appeared to remain in the water adjacent to the haul-out site and then returned to shore within 2 to 22 minutes after the launch disturbance. Of the two remaining seals that left the haul-out after the launch disturbance, both had been on shore for at least 6 hours and returned to the haul-out site on the following day (SRS Technologies, 2001).

The launches at VAFB do not appear to have had long-term effects on the harbor seal population in this area. The total population of harbor seals at VAFB has been estimated to be 1,040 animals, increasing at an annual rate of 12.6 percent. Since 1997, there have been five to seven space vehicle launches per year and there appears to be only short-term disturbance effects to harbor seals as a result of launch noise (SRS Technologies, 2001). Harbor seals will temporarily leave their haul-out when exposed to launch noise; however, they generally return to the haul-out within one hour.

On San Miguel Island, when California sea lions and elephant seals were exposed to sonic booms from vehicles launched at VAFB, sea lion pups were observed to enter the water, but usually remained playing in the water for a considerable period of time. Some adults approached the water, while elephant seals showed little to no reaction. This short-term disturbance to sea lion pups does not appear to carry the possibility of any long-term effects to the population. The conclusions of the 5-year VAFB study are almost identical to the MBNMS observations of pinniped response to commercial fireworks displays. Observed impacts have been limited to short-term disturbance only.

The primary causes of disturbance are sound effects and light flashes from exploding fireworks. Pyrotechnic devices that operate at higher altitudes (e.g., aerial shells) are more likely to have a larger acute impact area, while ground and low-level devices have more confined effects. Acute impact area is defined as the area where sound, light, and debris effects may have direct impacts on marine organisms and habitats. Direct impacts include, but are not limited to, immediate physical and physiological impacts such as abrupt changes in behavior, flight response, diving, evading, flushing, cessation of feeding, and physical impairment or mortality.

The largest commercial aerial shells used within the Sanctuary are 10-12 in (25-30 cm) in diameter and reach a maximum altitude of 1,000 ft (305 m) AGL. The bursting radius of the largest shells is approximately 850 ft (259 m). The acute impact area can extend from 1-2 mi (1.6-3.2 km) from the center of the detonation point, depending on the size of the shell, height and type of the explosions, wind direction, atmospheric conditions, and local topography.

Aerial shells produce flashes of light that can be brilliant (exceeding 30,000 candela) and can occur in rapid succession. Loud explosive and crackling sound effects stem primarily from salutes and bursting charges at altitude. Humans and wildlife on the ground and on the surface of the water may feel the sound waves and the accompanying rapid shift of ambient atmospheric pressure. Sound propagates further from high altitude shells than low altitude shells, thus ensonifying more surface area on the ground and water, as they are not blocked significantly by buildings and landforms. The sound from the lifting charge detonation is vectored upward through the mortar tube opening and reports as a dull thump to bystanders on the ground, far less conspicuous than the high-level aerial bursts. The intensity of an aerial show can be amplified by increasing the number of shells used, the pace of the barrage, and the length of the display.

Low-level devices reach a maximum altitude of 200 ft (61 m) AGL. The acute impact area can extend to 1 mi (1.6 km) from the center of the ignition point depending on the size and flight patterns of projectiles, maximum altitude of projectiles, the type of special effects, wind direction, atmospheric conditions, and local structures and topography. Low-level devices also produce brilliant flashes and fountains of light and sparks accompanied by small explosions, popping, and crackling sounds. Since they are lower in altitude than aerial shells, sound and light effects impact a smaller area. Low-level devices do not typically employ large black powder charges as do aerial shells, but are often used in large numbers in concert with one another and in rapid succession, producing intense localized effects.

Set pieces are stationary, do not launch any encased effects into the air, and produce effects between 0 and 50 ft (15 m) AGL. Small pellets of a pyrotechnic composition, such as those from sparklers or roman candles, may be expelled a short distance into the air. Loud, but not explosive, noises (e.g., crackling, popping, whistling) may emanate from a set piece, though they are usually used in concert with low-level effects and aerial displays. Depending on the size and height of the structure, the number and type of effects, wind direction, and local topography, the acute impact area can extend up to 0.5 mi (0.8 km) from the center of the ignition point, though fallout is generally confined within a 300 ft (91 m) radius. Residue may include smoke, airborne particulates, fine solids, and slag.

The primary impact noted in past observations is disturbance of marine mammals from the light and sound effects of the exploding aerial shells. The loud sound bursts and pressure waves created by the exploding shells appear to cause more wildlife disturbance than the illumination effects. In particular, the percussive aerial salute shells have been observed to elicit a strong flight response in California sea lions in the vicinity of the impact area (within 0.45 mi (0.72 km) of the launch site).

Increased boat traffic is often an indirect effect of fireworks displays as boaters move in to observe the event. The more boats there are in the area, the larger the chance that a boat could potentially collide with a marine mammal or other marine wildlife. The number of boats present at any one event is largely dependent upon weather, sea state, distance of the display from safe harbors, and season. At the MBNMS, some events have virtually no boat traffic, while there may more typically be anywhere from 20 to 70 boats present, ranging in size from 10 to 65 ft (3 to 20 m) in length.

Prior to and during fireworks displays at the MBNMS, boats typically enter the observation area at slow speed (less than 8 kn (15 km/hr)) due to the presence of other vessels and limited visibility (i.e., most fireworks displays occur at night). The USCG and/or other federal agency vessels are on site to enforce safe boating laws and keep vessels out of the debris fallout area during the display. Most boaters anchor prior to the display, while others drift with engines in neutral for convenient repositioning.

MBNMS staff have observed boat traffic during several fireworks displays and generally found that boaters are using good boating and safety practices. They have also never witnessed the harassment, injury, or death of marine mammals or other wildlife as a result of vessels making way at these events. In general, as human activity increases and concentrates in the viewing areas leading up to the display, wildlife avoid or gradually evacuate the area. As noted before, the fireworks venues are marine areas with some of the highest ambient levels of human activity in the MBNMS. Many resident animals are accustomed to stimuli (e.g., emergency sirens, vehicle and crowd noise, marine and beach recreation). Due to the gradual nature of the increase in boat traffic, its infrequent occurrence and short duration, and the slow speed of the boats, NMFS does not believe the increased boat traffic is likely to significantly impact marine mammals.

The fallout area for the aerial debris is determined by local wind conditions. In coastal regions with prevailing winds, the fallout area can often be projected in advance. This information is calculated by pyrotechnicians and fire department personnel in selection of the launch site to abate fire and public safety hazards. Mortar tubes are often angled to direct shells over a prescribed fallout area, away from spectators and property. Generally, the bulk of the debris will fall to the surface within a 0.5-mi (0.8-km) radius of the launch site. In addition, the tops of the mortars and other devices are usually covered with aluminum foil to prevent premature ignition from sparks during the display and to protect them from moisture. The shells and stars easily punch through the aluminum foil when ignited, scattering pieces of aluminum in the vicinity of the launch site. Through various means, the aluminum debris and garbage generated during preparation of the display may be swept into ocean waters.

Some low-level devices may project small casings into the air (such as small cardboard tubes used to house flaming whistle and firecracker type devices). These casings will generally fall to earth within a 200-yd (183-m) radius of the launch site, because they do not attain altitudes sufficient for significant lateral transport by winds. The acute impact area for set piece devices is typically within 300 ft (91 m), but can extend to a 0.5 mi (0.8 km) radius from the center of the ignition point depending on the size and height of the fixed structure, the number and type of special effects, wind direction, atmospheric conditions, and local structures and topography. Like aerial shells, low-level pyrotechnics and mortars are often covered with aluminum foil to protect them from weather and errant sparks, pieces of which are shredded during the course of the show and initially deposited near the launch site.

The explosion in a firework separates the cardboard and paper casing and compartments, scattering some of the shell's structural pieces clear of the blast while burning others. Some pieces are immediately incinerated, while others burn totally or partially on their way to the ground. Many shell casings part into two halves or into quarters when the burst charge detonates and are projected clear of the explosion. However, during the course of a display, some devices will fail to detonate after launch (duds) and fall back to earth/sea as an intact sphere or cylinder. Aside from post display surveys and recovery, there is no way to account for these misfires. The freefalling projectile could pose a physical risk to any wildlife within the fallout area, but the general avoidance of the area by wildlife during the display and the low odds for such a strike likely present a negligible potential for harm. Whether such duds pose a threat to wildlife once adrift is unknown. After soaking in the sea for a period of time, the likelihood of detonation rapidly declines, and it is unlikely that any animal would attempt to consume such a device. At times, some shells explode in the mortar tube (referred to as a flower pot) or far below their designed detonation altitude. It is highly unlikely that mobile organisms would remain close enough to the launch site during a fireworks display to be within the effective danger zone for such an explosion.

The MBNMS has conducted surveys of solid debris on surface waters, beaches, and subtidal habitat and has discovered no visual evidence of acute or chronic impacts to the environment or wildlife. Aerial displays generally produce a larger volume of solid debris than low-level displays. The MBNMS fireworks authorizations require the entity conducting the display to clean area beaches of fireworks debris for up to 2 days following the display. In some cases, debris has been found in considerable quantity on beaches the morning following the display.

The MBNMS staff has recovered many substantial uncharred casing remnants on ocean waters immediately after marine displays. Other items found in the acute impact area are cardboard cylinders, disks, and shell case fragments; paper strips and wadding; plastic wadding, disks, and tubes; aluminum foil; cotton string; and even whole unexploded shells (duds or misfires). In other cases, virtually no fireworks debris was detected. This variance is likely due to several factors, such as type of display, tide state, sea state, and currents. In either case, due to the requirement for clean up following the displays, NMFS does not believe the small amount of remaining debris is likely to significantly impact the environment, including marine mammals or their habitat.

Possible indirect impacts to marine mammals and other marine organisms include those resulting from chemical residue or physical debris emitted into the water. When an aerial shell detonates, its chemical components burn at high temperatures and are efficiently incinerated. Pyrotechnic vendors have stated that the chemical components are incinerated upon successful detonation of the shell. However, by design, the chemical components within a shell are scattered by the burst charge, separating them from the casing and internal shell compartments.

Chemical residue is produced in the form of smoke, airborne particulates, fine solids, and slag (spent chemical waste material that drips from the deployment canister/launcher and cools to a solid form). The fallout area for chemical residue is unknown, but is probably similar to that for solid debris. Similar to aerial shells, the chemical components of low-level devices produce chemical residue that can migrate to ocean waters as a result of fallout. The point of entry would likely be within a small radius (about 300 ft (91 m)) of the launch site.

The MBNMS has found only one scientific study directed specifically at the potential impacts of chemical residue from fireworks upon the environment. That study (DeBusk et al., 1992) indicates that chemical residues (fireworks decomposition products) do result from fireworks displays and can be measured under certain circumstances. The report, prepared for the Walt Disney Corporation, presented the results of a 10-year study of the impacts of fireworks decomposition products upon an aquatic environment. Researchers studied a small lake in Florida subjected to 2,000 fireworks displays over a 10-year period to measure key chemical levels in the lake. The report concluded that detectable amounts of barium, strontium, and antimony had increased in the lake but not to levels considered harmful to aquatic biota. The report further suggested that “environmental impacts from fireworks decomposition products typically will be negligible in locations that conduct fireworks displays infrequently” and that “the infrequence of fireworks displays at most locations, coupled with a wide dispersion of constituents, make detection of fireworks decomposition products difficult.” A report author hypothesized, via personal communication with MBNMS staff, that had the same study been conducted in California, the elevated metal concentrations in the lake would not have been detectable against natural background concentrations of those same metals, due to naturally higher metal concentrations in the western United States. Based on the findings of this report and the lack of any evidence that fireworks displays within the Sanctuary have degraded water quality, it is likely that chemical residue from fireworks does not pose a significant risk to the marine environment. No negative impacts to water quality have been detected.

The MBNMS has monitored commercial fireworks displays for potential impacts to marine life and habitats since 1993. In July 1993, the MBNMS performed its initial field observations of professional fireworks at the annual Independence Day fireworks display conducted by the City of Monterey. Subsequent `documented' field observations were conducted in Monterey by the MBNMS staff in July 1994, July 1995, July 1998, March 1998, October 2000, July 2001, and July 2002. MBNMS staff has observed additional displays at Monterey, Pacific Grove, Capitola, and Santa Cruz, but those observations were primarily for compliance purposes, and written assessments of environmental impacts were not generated. Documented field observations were also made at Aptos each October from 2000 to 2005, and have been made for all authorized fireworks under NMFS-issued MMPA authorizations, beginning in 2005. Though monitoring techniques and intensity have varied over the years and visual monitoring of wildlife abundance and behavioral responses to nighttime displays is challenging, observed impacts have been consistent. Wildlife activity nearest to disturbance areas returns to normal (pre-display species distribution, abundance, and activity patterns) within 12-15 hours, and no signs of wildlife injury or mortality have ever been discovered as a result of managed fireworks displays.

Sea lions in general are more tolerant to noise and visual disturbances than harbor seals. In addition, pups and juveniles of either species are more likely to be harassed when exposed to disturbance than are older animals. Adult sea lions have likely habituated to many sources of disturbance and are therefore much more tolerant of human activities nearby. Of all the display sites in the sanctuary, California sea lions are only present in significant concentrations at Monterey. The following is an excerpt from a 1998 MBNMS staff report on the reaction of sea lions to a large aerial fireworks display in Monterey: “In the first seconds of the display, the sea lion colony becomes very quiet, vocalizations cease, and younger sea lions and all marine birds evacuate the breakwater. The departing sea lions swim quickly toward the open sea. Most of the colony remains intact until the older bulls evacuate, usually after a salvo of overhead bursts in short succession. Once the bulls depart, the entire colony follows suit, swimming rapidly in large groups toward the open sea. A select few of the largest bulls may sometimes remain on the breakwater. Sea lions have been observed attempting to haul out onto the breakwater during the fireworks display, but most are frightened away by the continuing aerial bursts.

Sea lions begin returning to the breakwater within 30 minutes following the conclusion of the display but have been observed to remain quiet for some time. The colony usually reestablishes itself on the breakwater within 2-3 hours following the conclusion of the display, during which vocalization activity returns. Typically, the older bulls are the first to renew vocalization behavior (within the first hour), followed by the younger animals. By the next morning, the entire colony seems to be intact and functioning with no visible sign of abnormal behavior.”

In the 2001 Monterey survey (discussed previously in this document), most animals were observed to evacuate haul-out areas upon the initial report from detonated fireworks. Surveys continued for 4.5 hours after the initial disturbance and numbers of returning California sea lions remained at less than 1 percent of pre-fireworks numbers. When surveys resumed the next morning (13 hours after the initial disturbance), sea lion numbers on the breakwater equaled or exceeded pre-fireworks levels. Nearly 2 decades of observing sea lions at the City of Monterey's Fourth of July celebration gives the following general observations: sea lions (1) begin leaving the breakwater as soon as the fireworks begin; (2) clear completely off after an aerial salute or quick succession of loud effects; (3) usually begin returning within a few hours of the end of the display; and (4) are present on the breakwater at pre-firework numbers by the following morning.

Up to 15 harbor seals may typically be present on rocks in the outer Monterey harbor in early July. The seal haul-out area is approximately 2,100 ft (640 m) from the impact zone for the aerial pyrotechnic display. Only two harbor seals were observed on and near the rocks adjacent to Fisherman's Wharf prior to the 2001 display. Neither were observed to haul out after the initial fireworks detonation, but remained in the water around the haul-out. The haul-out site was only surveyed until the conclusion of the fireworks display; therefore, no animal return data is available from the 2001 study. However, the behavior of the seals after the initial disturbance and during the fireworks display is similar to the response behavior of seals during the VAFB rocket launches, where they loitered in the water adjacent to their haul-out site during the launch and returned to shore within 2 to 22 minutes after the launch disturbance.

A private environmental consultant monitored the Aptos fireworks display each October from 2001 through 2005 (per California Coastal Commission permit conditions) and concluded that harbor seal activity returned to normal at the site by the day following the display. Surveys have detected no evidence of injury or mortality in harbor seals as a result of the annual 30-minute fireworks display at the site.

Since harbor seals have a smaller profile than sea lions and are less vocal, their movements and behavior are often more difficult to observe at night. In general, harbor seals are more timid and easily disturbed than California sea lions. Thus, based on past observations of sea lion disturbance thresholds and behavior, it is very likely that harbor seals evacuate exposed haul-outs in the acute impact area during fireworks displays, though they may loiter in adjacent surface waters until the fireworks have concluded.

In 2007, MBNMS conducted acoustic monitoring in conjunction with in-depth behavioral monitoring for the City of Monterey Independence Day fireworks display. MBNMS was required to: (1) Conduct counts of marine mammals present within the fireworks impact area immediately before and one day after the event; (2) conduct behavioral observations of marine mammals present during the display; and (3) conduct NMFS-approved acoustic monitoring of sound levels for the duration of the event. The full report (Marine Mammal Acoustic and Behavioral Monitoring for the Monterey Bay National Marine Sanctuary Fireworks Display 4 July 2007) is available at http://www.nmfs.noaa.gov/pr/permits/incidental.htm.

Two separate systems for monitoring sound levels—with one customized for recording low frequency sounds associated with impulsive noise, such as explosions—were placed at the east end of the USCG pier, approximately 800 m from the fireworks launch site. Acoustic monitoring began approximately 3 hours prior to the beginning of the fireworks display. During those 3 hours, the average 1-hour sound level (Leq 1 hour) was approximately 59 dB, and included sea lion vocalizations, private fireworks in the local area, and recreational boat traffic.

The fireworks display began with two sets of fireworks detonations and ended with a grand finale of multiple explosions after 20 minutes. The average sound level measured during the hour containing the fireworks display was 72.9 dB, approximately 14 dB greater than ambient levels recorded before the display. The loudest sound recorded during the event was associated with the detonation of a 10-in shell, and was measured at 133.9 dB re: 20 μPa (peak). The detonation of the 10-in shell had an unweighted SEL of 105 dB re: 20 μPa2-s. The second loudest sound recorded was associated with detonation of an 8-in shell, measured at 127 dB re: 20 μPa (peak) with an unweighted SEL of 90.1 dB re: 20 μPa2-s. Overall, sound generated during the display was low- to mid-frequency and ranged from 97 to 107 dB re: 20 μPa, while the majority of the fireworks detonations ranged from 112 to 124 dB re: 20 μPa.

A marine mammal observer conducted observations aboard a MBNMS vessel in the vicinity of the southern side of the jetty and the western end of Monterey Harbor. The observer used binoculars during the daytime and night vision goggles after dark and counted species present, including location, age, class, and gender of the species. Visual monitoring was conducted from approximately 5 hours prior to the display until approximately 2 hours after the conclusion of the fireworks display. The weather and harbor state provided optimal conditions for observations.

Pre-event behavioral monitoring showed a total of 258 sea lions located on the north and south sides of the jetty and underneath the USCG pier. Most were yearlings or juveniles, though two subadult males were also observed and appeared to be practicing holding territory in the water. With the exception of the subadult males, the observer was unable to determine gender. The number of sea lions hauled out was relatively constant until approximately 30 minutes prior to the beginning of the display, when several recreational vessels passed nearby and shot off their own, unauthorized fireworks and firecrackers, causing approximately one-third of the sea lions to enter the water. During pre-event monitoring, eight harbor seals were hauled out on exposed rocks just offshore of the western end of the harbor. Because it was high tide (0.8 m), there were few places for harbor seals to haul out. Approximately 30 minutes prior to the display, the observer recorded four harbor seals hauled out and two harbor seals in the water.

By the time the fireworks display commenced, the majority of sea lions had already fled the haul-out areas due to recreational vessels in the area and individuals shooting private fireworks in the area. Six sea lions remaining under the USCG pier entered the water during the display. This last flush is likely correlated with detonation of the 8-in shell described previously. Despite the detonations, the observer noted that the sea lions entered the water at a relatively slow rate, and without apparent injury. There were 18 different instances of sea lion vocalizations recorded throughout the fireworks display, indicating that, although sea lions flushed into the water, at least some individuals remained in the harbor during the fireworks display. The observer reported that all of the remaining harbor seals at the western end of the harbor had flushed at the beginning of the fireworks display after hearing the first set of detonations.

The first sea lion (a subadult male) returned to the jetty approximately 20 minutes after the conclusion of the fireworks, and was reported to be practicing holding a territory at the end of the jetty. Three additional sea lions returned after approximately 1 hour. No harbor seals were observed during post-event monitoring. A census was conducted the morning following the display, and revealed approximately 291 California sea lions and 31 harbor seals at their respective haul-out sites. No injured or dead animals were observed. These data indicate that California sea lions and harbor seals were only temporarily displaced from haul-out sites during the fireworks display. This monitoring event indicates that a majority of individuals will flush prior to the beginning of a fireworks display, due to the presence and associated noise of recreational boaters and private, unauthorized fireworks, and that any remaining individuals will likely flee the haul-out at the start of the display. In conclusion, fireworks displays likely result in temporary displacement from haul-outs, constituting a short-term disruption in behavior, and pinnipeds are likely to resume normal behavior and full utilization of haul-outs within approximately 12 hours.

From 2006-2010, under the regulations in effect from July 4, 2006, through July 3, 2011 (71 FR 40928; July 19, 2006), twenty fireworks events were authorized in the MBNMS. For each display, observers conducted a pre-event census to document abundance of marine mammals and post-event surveys to record any injured or dead wildlife species. Pre-event censuses were assumed to be a reasonable proxy for the number of incidental takes, as all animals present within the vicinity of the display area would be expected to temporarily abandon haul-outs prior to or during fireworks displays. Table 1 summarizes these monitoring efforts. In all cases, no pinnipeds other than those authorized for taking were observed, and post-event monitoring revealed no injured or dead marine mammals.

During public meetings each year, the estimated biomass for Pacific sardine is presented to the Pacific Fishery Management Council's (Council) Coastal Pelagic Species (CPS) Management Team (Team), the Council's CPS Advisory Subpanel (Subpanel) and the Council's Scientific and Statistical Committee (SSC), and the biomass and the status of the fisheries are reviewed and discussed. The biomass estimate is then presented to the Council along with the calculated overfishing limit (OFL) and available biological catch (ABC), annual catch limit (ACL) and harvest guideline (HG) recommendations and comments from the Team, Subpanel and SSC. Following review by the Council and after hearing public comment, the Council adopts a biomass estimate and makes its catch level recommendations to NMFS.

The purpose of this proposed rule is to implement the 2012 ACL, HG and other annual catch reference points, including an OFL and an ABC that takes into consideration uncertainty surrounding the current estimate of biomass for Pacific sardine in the U.S. EEZ off the Pacific coast. The CPS FMP and its implementing regulations require NMFS to set these annual catch levels for the Pacific sardine fishery based on the annual specification framework in the FMP. This framework includes a harvest control rule that determines the maximum HG, the primary management target for the fishery, for the current fishing season. The HG is based, in large part, on the current estimate of stock biomass. The harvest control rule in the CPS FMP is HG = [(Biomass-Cutoff) * Fraction * Distribution] with the parameters described as follows:

1. Biomass. The estimated stock biomass of Pacific sardine age one and above for the 2012 management season is 988,385 mt.

2. Cutoff. This is the biomass level below which no commercial fishery is allowed. The FMP established this level at 150,000 mt.

3. Distribution. The portion of the Pacific sardine biomass estimated in the EEZ off the Pacific coast is 87 percent and is based on the average historical larval distribution obtained from scientific cruises and the distribution of the resource according to the logbooks of aerial fish-spotters.

4. Fraction. The harvest fraction is the percentage of the biomass above 150,000 mt that may be harvested.

At the November 2011 Council meeting, the Council adopted the 2012 Assessment of the Pacific sardine resource and a Pacific sardine biomass estimate of 988,385 mt. Based on recommendations from its SSC and other advisory bodies, the Council recommended and NOAA Fisheries (NMFS) is proposing, an overfishing limit of 154,781 mt, an acceptable biological catch (ABC) of 141,289 mt, an annual catch limit of 141,289 mt (equal to the ABC) and a maximum harvest guideline (HG) (HGs under the CPS FMP are operationally similar to annual catch targets (ACT)) of 109,409 metric tons (mt) for the 2012 Pacific sardine fishing year. These catch specifications are based on the most recent stock assessment and the control rules established in the CPS FMP.

The Council also recommended, and NMFS is proposing, that 97,409 mt be used as the initial overall commercial fishing HG to be allocated across the three allocation periods for sardine management. This number has been reduced from the maximum HG by 12,000 mt: (i) for potential harvest by the Quinault Indian Nation of up to 9,000 mt; and (ii) 3,000 mt, which is initially reserved for potential use under an exempted fishing permit(s) (EFPs). The Council also recommended and NMFS is proposing that incidental catch set asides be put in place for each allocation period. The purpose of the incidental set-aside allotments and allowance of an incidental catch-only fishery is to allow for the restricted incidental landings of Pacific sardine in other fisheries, particularly other CPS fisheries, when a seasonal directed fishery is closed to reduce bycatch and allow for continued prosecution of other important CPS fisheries. These incidental set asides are allocated as shown in the following table, which also shows the adjusted directed harvest levels for each period in metric tons:

Although the 2012 HG is well below that of the ACL, additional inseason accountability measures are in place to ensure the fishery stays within the HG. If during any of the seasonal allocation periods the applicable adjusted directed harvest allocation is projected to be taken, fishing would be closed to directed harvest and only incidental harvest would be allowed. For the remainder of the period, any incidental Pacific sardine landings would be counted against that period's incidental set-aside. The proposed incidental fishery would also be constrained to a 30 percent by weight incidental catch rate when Pacific sardine are landed with other CPS so as to minimize the targeting of Pacific sardine. In the event that an incidental set-aside is projected to be attained, the incidental fishery will be closed for the remainder of the period. If the set-aside is not fully attained or is exceeded in a given seasonal period, the directed harvest allocation in the following seasonal period would automatically be adjusted upward or downward accordingly to account for the discrepancy. Additionally, if during any seasonal period the directed harvest allocation is not fully attained or is exceeded, then the following period's directed harvest total would be adjusted to account for the discrepancy, as well.

If the total HG or these apportionment levels for Pacific sardine are reached or are expected to be reached, the Pacific sardine fishery would be closed until it re-opens either per the allocation scheme or at the beginning of the next fishing season. The NMFS Southwest Regional Administrator would publish a notice in the Federal Register announcing the date of any such closure.

The Council will hear proposals and comments on any potential EFPs at the March 2012 Council meeting, and at the April 2012 Council meeting it will make a final recommendation to NMFS on whether or not all or a portion of the 3,000 mt EFP set-aside should be allocated for use under any EFP(s). NMFS will likely make a decision on whether to issue an EFP for Pacific sardine sometime prior to the start of the second seasonal period (July 1, 2012). Any of the 3,000 mt that is not issued to an EFP will be rolled into the third allocation period's directed fishery. Any set-aside attributed to an EFP designed to be conducted during the closed fishing time in the second allocation period (prior to September 15), but not utilized, will roll into the third allocation period's directed fishery. Any set-aside attributed to an EFP designed to be conducted during closed fishing times in the third allocation, but not utilized, will not be re-allocated.

In response to a request by the Quinault Indian Nation for the exclusive right to harvest Pacific sardine in 2012 in their Usual and Accustomed Fishing Area off the coast of Washington State, pursuant to their rights to fish under the 1856 Treaty of Olympia (Treaty with the Quinault), the Council recommended and NMFS approved an allocation of 9,000 mt of sardine to the Quinault in 2012. NMFS will consult with Quinault Department of Fisheries staff and Quinault Fisheries Policy representatives on or near September 1, 2012 to review Quinault catch to-date, Oregon and Washington catch to-date and any other relevant information in an attempt to project tribal catch for the remainder of the season. The purpose of this consultation will be to determine whether any part of the 2012 Quinault Pacific sardine set-aside of 9,000 mt will be moved into the non-tribal third period allocation that begins September 15.

Detailed information on the fishery and the stock assessment are found in the report “Assessment of the Pacific Sardine Resource in 2011 for U.S. Management in 2012” (see ADDRESSES).

Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Fishery Conservation and Management Act, the NMFS Assistant Administrator has determined that this proposed rule is consistent with the CPS FMP, other provisions of the Magnuson-Stevens Fishery Conservation and Management Act, and other applicable law, subject to further consideration after public comment.

These proposed specifications are exempt from review under Executive Order 12866.

Pursuant to the Regulatory Flexibility Act (RFA), 5 U.S.C. 605(b), the Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration that this proposed rule, if adopted, would not have a significant economic impact on a substantial number of small entities as follows:

The purpose of this proposed rule is to implement the 2012 annual specifications for Pacific sardine in the U.S. EEZ off the Pacific coast. The CPS FMP and its implementing regulations require NMFS to set an OFL, ABC, ACL and HG or ACT for the Pacific sardine fishery based on the harvest control rules in the FMP. The specific harvest control rule is applied to the current stock biomass estimate to derive the annual HG which is used to manage the directed commercial take of Pacific sardine.

The HG is apportioned based on the following allocation scheme: 35 percent of the HG is allocated coastwide on January 1; 40 percent of the HG, plus any portion not harvested from the initial allocation is then reallocated coastwide on July 1; and on September 15 the remaining 25 percent, plus any portion not harvested from earlier allocations will be released. If the total HG or these apportionment levels for Pacific sardine are reached at any time, the Pacific sardine fishery will close until either it re-opens per the allocation scheme or the beginning of the next fishing season. There is no limit on the amount of catch that any single vessel can take during an allocation period or the year; the HG and seasonal allocations are available until fully utilized by the entire CPS fleet.

The U.S. Small Business Administration defines small businesses engaged in fishing as those vessels with annual revenues of or below $4 million. The small entities that would be affected by the proposed action are the vessels that compose the West Coast CPS finfish fleet. Approximately 108 vessels are permitted to operate in the sardine fishery component of the CPS fishery off the U.S. West Coast; 64 permits in the Federal CPS limited entry fishery off California (south of 39 N. lat.), and a combined 44 permits in Oregon and Washington's state Pacific sardine fisheries. The average annual per vessel revenue in 2010 for the West Coast CPS finfish fleet was well below $4 million; therefore, all of these vessels therefore are considered small businesses under the RFA. Because each affected vessel is a small business, this proposed rule has an equal effect on all of these small entities, and therefore will impact these small entities in the same manner. Accordingly, there would be no economic impacts resulting from disproportionality between small and large business entities under the proposed action.

The profitability of these vessels as a result of this proposed rule is based on the average Pacific sardine ex-vessel price per mt. NMFS used average Pacific sardine ex-vessel price per mt to conduct a profitability analysis because cost data for the harvesting operations of CPS finfish vessels was unavailable.

For the 2011 fishing year the HG was set at 50,526 mt. Approximately 47,000 mt (28,000 in California and 19,000 in Oregon and Washington) of this HG were harvested during the 2011 fishing season, for an estimated ex-vessel value of $10 million. Using these figures, the average 2011 ex-vessel price per mt of Pacific sardines was approximately $200.

The proposed HG for the 2012 Pacific sardine fishing season (January 1, 2012 through December 31) is 109,409 metric tons (mt). This HG is 66 percent higher than the HG for 2011. If the fleet were to take the entire 2012 HG, and assuming a coastwide average ex-vessel price per mt of $190 (average of 2010 and 2011 ex-vessel), the potential revenue to the fleet would be approximately $21 million. Therefore the proposed rule will increase small entities' profitability compared to last season, due to the much higher HG this fishing season. Whether this will occur will depend somewhat on market forces within the fishery, and on the regional availability of the resource to the fleets and the fleets' ability to find pure schools of Pacific sardine. A change in the market rate and/or the potential lack of availability of the resource to the fleets could cause a reduction in the amount of Pacific sardine that is harvested which, in turn, would reduce the potential total revenue to the fleet from Pacific sardine. However, due to the large increase in the HG compared to last year, even if changes in the market value occur, the fishery is likely to see an increase in total revenue compared last season. Additionally, unused sardine from the potential EFP or from the 9,000-mt set-aside for use by the Quinault Indian Nation, might be used to supplement the amount available to the directed fishery of the third allocation period (September 15 through December 31).

The revenue derived from harvesting Pacific sardine is also only one factor determining the overall revenue for a majority of the vessels in the CPS fleet, and, therefore, the economic impact to the fleet from the proposed action cannot be viewed in isolation. CPS finfish vessels typically harvest a number of other species, including anchovy, mackerel, squid, and tuna, making Pacific sardine only one component of a multi-species CPS fishery. Vessels rely on multiple species for profitability because each CPS stock is highly associated with different ocean conditions and different time periods, and so are harvested at various times throughout the year. Because each species responds to ocean conditions in its own way, not all CPS stocks are likely to be abundant at the same time; therefore as abundance levels and markets fluctuate, the CPS fishery as a whole relies on a group of species for annual revenues. Accordingly, even if sardine prices drop, such a drop will have only a small impact, if at all, on the profits of CPS fishery vessels.

Based on the disproportionality and profitability analysis above, this rule, if adopted, will not have a significant economic impact on a substantial number of these small entities. As a result, an Initial Regulatory Flexibility Analysis is not required, and none has been prepared.

There are no reporting, record-keeping, or other compliance requirements required by this proposed rule. Additionally, no other Federal rules duplicate, overlap or conflict with this proposed rule.

This action does not contain a collection-of-information requirement for purposes of the Paper Reduction Act.