We invite you to submit any relevant written data, views, or arguments regarding this proposed AD. Send your comments to an address listed in the ADDRESSES section. Include the docket number “Docket No. FAA-2006-24585; Directorate Identifier 2004-NM-275-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of the proposed AD. We will consider all comments received by the closing date and may amend the proposed AD in light of those comments.

We will post all comments we receive, without change, to http://dms.dot.gov, including any personal information you provide. We will also post a report summarizing each substantive verbal contact with FAA personnel concerning this proposed AD. Using the search function of that Web site, anyone can find and read the comments in any of our dockets, including the name of the individual who sent the comment (or signed the comment on behalf of an association, business, labor union, etc.). You may review the DOT's complete Privacy Act Statement in the Federal Register published on April 11, 2000 (65 FR 19477-78), or may can visit http://dms.dot.gov.

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

On January 22, 2003, we issued AD 2003-03-08, amendment 39-13032 (68 FR 4900, January 31, 2003), for certain McDonnell Douglas Model DC-9-10, DC-9-20, DC-9-30, DC-9-40, and DC-9-50 series airplanes. That AD requires a one-time inspection at a certain disconnect panel in the left forward cargo compartment to find contamination of electrical connectors and to determine if a dripshield is installed over the disconnect panel, and corrective actions if necessary. That AD resulted from a report of electrical arcing that resulted in a fire. We issued that AD to prevent contamination of certain electrical connectors, which could cause electrical arcing that could result in a fire on the airplane.

Since we issued AD, we have reviewed Revision 2 of Boeing Alert Service Bulletin DC9-24A190, dated October 12, 2004 (Revision 1 of the service bulletin was referred to in AD 2003-03-08 as the appropriate source of service information for the required actions). The one-time general visual inspection and corrective actions specified in Revision 2 are identical to those in Revision 1. The effectivity of Revision 2 has been changed to include 369 additional airplanes (254 U.S.-registered airplanes) that were inadvertently omitted from Revision 1 and to remove 25 airplanes (19 U.S.-registered airplanes) that have been removed from service due to an accident, dismantling, or scrapping. Accomplishing the actions specified in the service information is intended to adequately address the unsafe condition.

We have evaluated all pertinent information and identified an unsafe condition that is likely to develop on other airplanes of the same type design. For this reason, we are proposing this AD, which would supersede AD 2003-03-08 and would retain the requirements of the existing AD. This proposed AD would also revise the applicability of the existing AD to remove certain airplanes and add others. For the added airplanes, this proposed AD would require accomplishing the actions specified in Boeing Alert Service Bulletin DC9-24A190, Revision 2, dated October 12, 2004, described previously.

McDonnell Douglas Model DC-9-15F airplanes are not specifically identified by model name in paragraph 1.A., “Effectivity,” of Boeing Alert Service Bulletin DC9-24A190, Revision 2. However, those airplanes are identified by manufacturer's fuselage numbers in the effectivity listing. Therefore, we have listed those airplanes in the applicability of this proposed AD.

In addition, paragraph 1.A., “Effectivity,” of Boeing Alert Service Bulletin DC9-24A190, Revision 2, specifies Model “DC-9-33” airplanes. There is no such model on the FAA Type Certificate Data Sheet No. A6WE, dated November 1, 2001. Therefore, the applicability of this proposed AD does not refer to that model designation.

We have coordinated the differences above with the airplane manufacturer.

This proposed AD would retain all requirements of AD 2003-03-08. Since AD 2003-03-08 was issued, the AD format has been revised, and certain paragraphs have been rearranged. As a result, the corresponding paragraph identifiers have changed in this proposed AD, as listed in the following table:

After AD 2003-03-08 was issued, we reviewed the figures we have used over the past several years to calculate AD costs to operators. To account for various inflationary costs in the airline industry, we find it necessary to increase the labor rate used in these calculations from $65 per work hour to $80 per work hour. Also, the number of affected U.S.-registered airplanes that need to comply with the inspection required by AD 2003-03-08 was increased from 51 airplanes to 170 airplanes. The cost impact information, below, reflects this increase in the specified hourly labor rate.

There are about 649 airplanes of the affected design in the worldwide fleet. The following table provides the estimated costs for U.S. operators to comply with this proposed AD.

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

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

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

For the reasons discussed above, I certify that the proposed regulation:

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

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

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

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

Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:

On December 18, 2002, the Commission issued final amendments to the Telemarketing Sales Rule, which, inter alia , established the National Do Not Call Registry, permitting consumers to register, via either a toll-free telephone number or the Internet, their preference not to receive certain telemarketing calls (“Amended TSR”). 2 Under the Amended TSR, most telemarketers are required to refrain from calling consumers who have placed their numbers on the registry. 3 Telemarketers must periodically access the registry to remove from their telemarketing lists the telephone numbers of those consumers who have registered. 4

Shortly after issuance of the Amended TSR, Congress passed The Do-Not-Call Implementation Act (“the Implementation Act”). 5 The Implementation Act gave the Commission the specific authority to “promulgate regulations establishing fees sufficient to implement and enforce the provisions relating to the ‘do-not-call' registry of the [TSR] * * * No amounts shall be collected as fees pursuant to this section for such fiscal years except to the extent provided in advance in appropriations Acts. Such amounts shall be available * * * to offset the costs of activities and services related to the implementation and enforcement of the [TSR], and other activities resulting from such implementation and enforcement.”  6

On July 29, 2003, pursuant to the Implementation Act and the Consolidated Appropriations Resolution, 2003, 7 the Commission issued a Final Rule further amending the TSR to impose fees on entities accessing the National Do Not Call Registry (“the Original Fee Rule”). 8 Those fees were based on the FTC's best estimate of the number of entities that would be required to pay for access to the National Registry, and the need to raise $18.1 million in Fiscal Year 2003 to cover the costs associated with the implementation and enforcement of the “do-not-call” provisions of the Amended TSR. The Commission determined that the fee structure would be based on the number of different area codes of data that an entity wished to access annually. The Original Fee Rule established an annual fee of $25 for each area code of data requested from the National Registry, with the first five area codes of data provided at no cost. 9 The maximum annual fee was capped at $7,375 for entities accessing 300 area codes of data or more. 10 On July 30, 2004, pursuant to the Implementation Act and the Consolidated Appropriations Act, 2004, 11 the Commission issued a revised Final Rule further amending the TSR and increasing fees on entities accessing the National Do Not Call Registry (“the 2004 Fee Rule”). 12 Those fees were based on the FTC's experience through June 1, 2004, its best estimate of the number of entities that would be required to pay for access to the National Registry, and the need to raise $18 million in Fiscal Year 2004 to cover the costs associated with the implementation and enforcement of the “do-not-call” provisions of the Amended TSR. The Commission determined that the fee structure would continue to be based on the number of different area codes of data that an entity wished to access annually. The 2004 Fee Rule established an annual fee of $40 for each area code of data requested from the National Registry, with the first five area codes of data provided at no cost. 13 The maximum annual fee was capped at $11,000 for entities accessing 280 area codes of data or more. 14

On July 27, 2005, pursuant to the Implementation Act and the Consolidated Appropriations Act, 2005, 15 the Commission issued a revised Final Rule further amending the TSR and increasing fees on entities accessing the National Do Not Call Registry (“the 2005 Fee Rule”). 16 These fees were based on the FTC's experience through June 1, 2005, its best estimate of the number of entities that would be required to pay for access to the National Registry, and the need to raise $21.9 million in Fiscal Year 2005 to cover the costs associated with the implementation and enforcement of the “do-not-call” provisions of the Amended TSR. The Commission again determined that the fee structure would be based on the number of different area codes of data that an entity wished to access annually. The 2005 Fee Rule established an annual fee of $56 for each area code of data requested from the National Registry, with the first five area codes of data provided at no cost. 17 The maximum annual fee was capped at $15,400 for entities accessing 280 area codes of data or more. 18

In the Science, State, Justice, Commerce, and Related Agencies Appropriations Act, 2006 (“the 2006 Appropriations Act”), 19 Congress directed the FTC to collect offsetting fees in the amount of $23 million in Fiscal Year 2006 to implement and enforce the TSR. 20 Pursuant to the 2006 Appropriations Act and the Implementation Act, as well as the Telemarketing Fraud and Abuse Prevention Act (“the Telemarketing Act”), 21 the FTC is issuing this NPRM to amend the fees charged to entities accessing the National Do Not Call Registry.

In the Original Fee Rule, the Commission estimated that 10,000 entities would be required to pay for access to the National Do Not Call Registry. The Commission based its estimate on the “best information available to the agency” at that time. 22 It noted that this estimate was based on “a number of significant assumptions,” about which the Commission had sought additional information during the comment period. The Commission noted, however, that it received virtually no comments providing information supporting or challenging these assumptions. 23 As a result, the Commission anticipated “that these fees may need to be reexamined periodically and adjusted, in future rulemaking proceedings, to reflect actual experience with operating the registry.”  24

In the 2004 Fee Rule, the Commission reported that “[a]s of June 1, 2004, more than 65,000 entities had accessed the national registry. More than 57,000 of those entities had accessed five or fewer area codes of data at no charge, and 1,100 ‘exempt' entities also accessed the registry at no charge. Thus, more than 7,100 entities have paid for access to the registry, with over 1,200 entities paying for access to the entire registry.”  25 The Commission based its calculation of revised fees on this experience, with the expectation that the number of entities accessing the registry in Fiscal Year 2004 would be substantially the same as in Fiscal Year 2003. As in the Original Fee Rule, the Commission based its estimate on the best information available at the time, with the continuing intent to periodically reexamine and adjust the fees to reflect actual experience with operating the registry.

In the 2005 Fee Rule, the Commission reported that from March 1, 2004 through February 28, 2005, 26 “more than 60,800 entities have accessed all or part of the information in the registry. Approximately 1,300 of these entities are ‘exempt' and therefore have accessed the registry at no charge. An additional 52,700 entities have accessed five or fewer area codes of data, also at no charge. As a result, approximately 6,700 entities have paid for access to the registry, with slightly less than 1,100 entities paying for access to the entire registry.”  27

From March 1, 2005 to February 28, 2006, slightly less than 66,200 entities have accessed all or part of the information in the registry. Approximately 1,300 of these entities are “exempt” and therefore have accessed the registry at no charge. 28 An additional 58,300 entities have accessed five or fewer area codes of data, also at no charge. As a result, approximately 6,500 entities have paid for access to the registry, with slightly less than 1,000 entities paying for access to the entire registry.

As previously stated, the 2006 Appropriations Act directs the Commission to collect offsetting fees in Fiscal Year 2006 to implement and enforce the Amended TSR. 29 The Commission is proposing a revised Fee Rule to raise $23 million of fees to offset costs it expects to incur in this Fiscal Year for the following purposes related to implementing and enforcing the Amended TSR. First, funds are required to operate the National Registry. This includes items such as handling consumer registration and complaints, telemarketer access to the registry, state access to the registry, and the management and operation of law enforcement access to appropriate information. 30 Second, funds are required for law enforcement efforts, including identifying targets, coordinating domestic and international initiatives, challenging alleged violators, and consumer and business education efforts, which are critical to securing compliance with the Amended TSR. These law enforcement efforts are a significant component of the total costs, given the large number of ongoing investigations currently being conducted by the agency, and the substantial effort necessary to complete such investigations. Third, funds are required to cover ongoing agency infrastructure and administration costs associated with the operation and enforcement of the registry, including information technology structural supports and distributed mission overhead support costs for staff and non-personnel expenses such as office space, utilities, and supplies.

The Commission proposes to revise the fees charged for access to the National Registry based on the assumption that approximately the same number of entities will access similar amounts of data from the National Registry during their next annual period. 31 Based on that assumption, and the continued allowance for free access to “exempt” organizations and for the first five area codes of data, the proposed revised fee would be $62 per area code. The maximum amount that would be charged to any single entity would be $17,050, which would be charged to any entity accessing 280 area codes of data or more. The fee charged to entities requesting access to additional area codes of data during the second six months of their annual period would be $31.

The Commission proposes to continue allowing all entities accessing the National Registry to obtain the first five area codes of data for free. 32 The Commission allowed such free access in the Original Fee Rule, the 2004 Fee Rule, and the 2005 Fee Rule, “to limit the burden placed on small businesses that only require access to a small portion of the national registry.”  33 The Commission noted that such a fee structure was consistent with the mandate of the Regulatory Flexibility Act, 34 which requires that to the extent, if any, a rule is expected to have a significant economic impact on a substantial number of small entities, agencies should consider regulatory alternatives to minimize such impact. As stated in the prior fee rules, “the Commission continues to believe that providing access to five area codes of data for free is an appropriate compromise between the goals of equitably and adequately funding the national registry, on one hand, and providing appropriate relief for small businesses, on the other.”  35 In addition, requiring over 58,000 entities to pay a small fee for access to five or fewer area codes from the National Registry would place a significant burden on the registry, requiring the expenditure of even more resources to handle properly that additional traffic. Nonetheless, the Commission continues to seek comment on this issue.

The Commission also proposes to continue allowing “exempt” organizations, as discussed in footnote 28, above, to obtain free access to the National Registry. The Commission believes that any exempt entity, voluntarily accessing the National Registry to avoid calling consumers who do not wish to receive telemarketing calls, should not be charged for such access. Charging such entities access fees, when they are under no legal obligation to comply with the “do-not-call” requirements of the TSR, may make them less likely to obtain access to the National Registry in the future, resulting in an increase in unwanted calls to consumers. As with free access to five or fewer area codes, the Commission seeks comment on this issue as well.

All persons are hereby given notice of the opportunity to submit written data, views, facts, and arguments addressing the issues raised by this NPRM. Written comments must be received on or before June 1, 2006. All comments should be filed as prescribed in the ADDRESSES section above.

Written communications and summaries or transcripts of oral communications respecting the merits of this proceeding from any outside party to any Commissioner or Commissioner's advisor will be placed on the public record. See 16 CFR 1.26(b)(5).

Pursuant to the Paperwork Reduction Act, 36 the Office of Management and Budget (“OMB”) approved the information collection requirements in the TSR and assigned OMB Control Number 3084-0097. 37 The proposed rule amendment, as discussed above, provides for an increase in the fees that are charged for accessing the National Do Not Call Registry. Therefore, the proposed rule amendment does not create any new recordkeeping, reporting, or third-party disclosure requirements that would be subject to review and approval by OMB pursuant to the Paperwork Reduction Act.

The Regulatory Flexibility Act  38 requires an agency either to provide an Initial Regulatory Flexibility Analysis (“IRFA”) with a proposed rule, or certify that the proposed rule will not have a significant economic impact on a substantial number of small entities. The FTC does not expect that the rule concerning revised fees will have the threshold impact on small entities. As discussed in Section II, above, this NPRM specifically proposes charging no fee for access to one to five area codes of data included in the registry. As a result, the Commission anticipates that many small businesses will be able to access the National Registry without having to pay any annual fee. Thus, it is unlikely that there will be a significant burden on small businesses resulting from the adoption of the proposed revised fees. Nonetheless, the Commission has determined that it is appropriate to publish an IRFA in order to inquire into the impact of this proposed rule on small entities. Therefore, the Commission has prepared the following analysis.

As outlined in Section II, above, the Commission is proposing to amend the fees charged to entities accessing the National Registry in order to raise sufficient amounts to offset the current year costs to implement and enforce the Amended TSR.

The objective of the current proposed rule is to collect sufficient fees from entities that must access the National Do Not Call Registry. The legal authority for this NPRM is the 2006 Appropriations Act, the Implementation Act, and the Telemarketing Act.

The Small Business Administration has determined that “telemarketing bureaus” with $6.5 million or less in annual receipts qualify as small businesses. 39 Similar standards, i.e., $6.5 million or less in annual receipts, apply for many retail businesses which may be “sellers” and subject to the proposed revised fee provisions outlined in this NPRM. In addition, there may be other types of businesses, other than retail establishments, that would be “sellers” subject to the proposed rule.

As described in Section II, above, over 58,000 entities have accessed five or fewer area codes of data from the National Registry at no charge. While not all of these entities may qualify as small businesses, and some small businesses may be required to purchase access to more than five area codes of data, the Commission believes that this is the best estimate of the number of small entities that would be subject to the proposed revised fee rule. The Commission invites comment on this issue, including information about the number and type of small business entities that may be subject to the revised fees.

The information collection activities at issue in this NPRM consist principally of the requirement that firms, regardless of size, that access the National Registry submit minimal identifying and payment information, which is necessary for the agency to collect the required fees. The cost impact of that requirement and the labor or professional expertise required for compliance with that requirement were discussed in section V of the 2004 Fee Rule Notice of Proposed Rule Making. 69 FR 23701, 23704 (April 30, 2004).

As for compliance requirements, small and large entities subject to the revised fee rule will pay the same rates to obtain access to the National Do Not Call Registry in order to reconcile their calling lists with the phone numbers maintained in the National Registry. As noted earlier, however, compliance costs for small entities are not anticipated to have a significant impact on small entities, to the extent the Commission believes that compliance costs for those entities will be largely minimized by their ability to obtain data for up to five area codes at no charge.

None.

The Commission recognizes that alternatives to the proposed revised fee are possible. For example, instead of a fee based on the number of area codes that a telemarketer accesses from the National Registry, access could be provided on the basis of a flat fee regardless of the number of area codes accessed. The Commission believes, however, that these alternatives would likely impose greater costs on small businesses, to the extent they are more likely to access fewer area codes than larger entities.

Another alternative the Commission has considered entails providing small businesses with free access to the National Registry. 40 This alternative would require entities seeking an exemption from the fees to submit information regarding their annual revenues, to determine whether they meet the statutory threshold to be classified a small business and exempt from the fees. The Commission continues to believe, however, “an alternative approach that would provide small business with exemptive relief more directly tied to size status would not balance the private and public interests at stake any more equitably or reasonably than the approach currently proposed by the Commission.”  41 The Commission also continues to believe that “such a system would present greater administrative, technical, and legal costs and complexities than the Commission's current proposal which does not require any proof or verification of that status.”  42

Accordingly, the Commission believes its current proposal is likely to be the least burdensome for small businesses, while achieving the goal of covering the necessary costs to implement and enforce the Amended TSR.

Despite these conclusions, the Commission welcomes comment on any significant alternatives that would further minimize the impact on small entities, consistent with the objectives of the Telemarketing Act, the 2006 Appropriations Act, and the Implementation Act.

Accordingly, for the reasons stated in the preamble, the Federal Trade Commission proposes to amend part 310 of title 16 of the Code of Federal Regulations as follows:

You may submit or retrieve comments online through the Document Management System (DMS) at: http://dmses.dot.gov/submit. Electronic submission and retrieval help and guidelines are available under the help section of the Web site. Alternatively, internet users may access all comments received by the U.S. DOT Docket Facility by using the universal resource locator (URL) http://dms.dot.gov. It is available 24 hours each day, 365 days each year. Please follow the instructions. An electronic copy of this document may also be downloaded by accessing the Office of the Federal Register's home page at: http://www.archives.gov or the Government Printing Office's Web page at http://www.gpoaccess.gov/nara.

The Safe, Accountable, Flexible, Efficient, Transportation Equity Act: A Legacy for Users (SAFETEA-LU) (Pub. L. 109-59, 119 Stat. 1144), the Energy Policy Act of 2005 (Pub. L. 109-58, 119 Stat. 544), and the Transportation, Treasury, Housing and Urban Development, the Judiciary, the District of Columbia, and Independent Agencies Appropriations Act of 2006 (Pub. L. 109-115, 119 Stat. 2396) amended several areas of the size and weight regulations in the areas of auxiliary power units, custom harvesters, over-the-road buses, and drive-away saddlemount vehicle combinations.

Additionally, the transfer of motor carrier safety functions to the Federal Motor Carrier Safety Administration (FMCSA) established by the Motor Carrier Safety Improvement Act of 1999 (MCSIA) (Pub. L. 106-159, 113 Stat. 1748) affected the internal organizational structure of the FHWA. Although the responsibility for commercial motor vehicle size and weight limitation remained in the FHWA, the references in the regulations to the old FHWA's Office of Motor Carriers (OMC) and its officials are obsolete. This action will update these references to reflect the changes in the agency's organizational structure.

Section 657.1 indicates that the purpose of the regulations is to prescribe requirements for administering a program of vehicle size and weight enforcement on “Federal-aid (FA) highways.” This term refers to the Federal-aid primary (FAP), Federal-aid secondary (FAS), and Federal-aid urban (FAU) systems, as indicated in the current definition of “Enforcing or Enforcement” in 23 CFR 657.3 and as provided in 23 U.S.C. 141. The Intermodal Surface Transportation Efficiency Act of 1991 (ISTEA) (Pub. L. 102-240, 105 Stat. 1914) eliminated these old highway system categories and replaced them with the National Highway System (NHS) as the Federal-aid highway system for the purpose of apportioning Federal highway funds. It left unchanged the requirement in 23 U.S.C. 141 that States enforce their size and weight laws on the FAP, FAS, and FAU. Section 4006(c) of the ISTEA did preserve the Secretary's authority to designate FAP routes as part of the National Network but limited it to FAP routes in existence as of June 1, 1991. The requirements of 23 U.S.C. 141 were reflected in 23 CFR 657.15(c)(1) by requiring States to certify that their size and weight laws are being enforced on those highways which, prior to October 1, 1991, were designated as part of the FAP, FAS, and FAU. This date was selected because it is the start of the States' yearly enforcement period.

Therefore, the FHWA proposes to amend 23 CFR 657.1 to replace the reference to “Federal-aid (FA) highways” with “highways which, prior to October 1, 1991, were designated as part of the Federal-aid Interstate, Federal-aid primary, Federal-aid secondary, or Federal-aid urban systems.” The October 1, 1991, date is the same as that adopted in connection with the certification in 23 CFR 657.15(c)(1).

The FHWA proposes to amend the definition of “Enforcing or Enforcement” to delete the old references to “Federal-aid (FA) highways” and to replace this reference with “highways which, prior to October 1, 1991, were designated as part of the Federal-aid Interstate, Federal-aid primary, Federal-aid secondary, or Federal-aid urban systems” for the reasons noted above.

Prior to a final rule published June 13, 1994 (59 FR 30392, 30416), section 657.15(b) required States to identify and analyze enforcement efforts in “urban areas” not subject to State size and weight enforcement. The FHWA recognized such areas as those with a population of 5,000 or more. Since the intent of section 658.15(b) was to ensure adequate enforcement in larger cities, the 1994 final rule changed the requirement to “urbanized areas,” meaning those with a population of 50,000 or more. However, the 1994 rule failed to define “urbanized areas.” In order to clarify the intent of the change, this notice proposes to adopt a definition of “urbanized areas” in 23 CFR 657.3 as areas with a population of 50,000 or more, as defined in 23 U.S.C. 101.

Prior to creation of the FMCSA, the responsibility for the enforcement of vehicle size and weight laws and regulations was a function of the Office of Motor Carriers within the FHWA. Evaluation or operations reports were forwarded through the Regional Director of Motor Carriers. After the creation of the FMCSA, various driver and vehicle safety inspection functions were transferred from the FHWA's Office of Motor Carriers to the FMCSA in a final rule published on October 19, 1999 (64 FR 56270). Not transferred, but remaining within FHWA, was enforcement of commercial motor vehicle size and weight laws and regulations. The FHWA proposes to remove outdated references to the Office of Motor Carriers and the Regional Director of Motor Carriers in paragraphs (a) and (b). The proposed changes reflect changes to the agency's organizational structure, but do not change the intent or requirements of the section.

The FHWA proposes to add a period after the citation, “* * * 49 U.S.C. 31112” in 23 CFR 657.15(b) so that the word “Urbanized” is the start of a new sentence. It also proposes to delete the last sentence in 23 CFR 657.15(e) because it is out of date. The requirement that laws and regulations pertaining to special permits and penalties be specifically identified and analyzed in accordance with section 123 of the Surface Transportation Assistance Act of 1978 (Pub. L. 95-599, 92 Stat. 2689) has been eliminated by section 3003 of the Federal Elimination and Sunset Act of 1995 (Pub. L. 104-66, 109 Stat. 1914). Therefore, the FHWA proposes to eliminate the requirement to collect this data, since it not only serves no purpose, but also is duplicative of other requirements for this information. The States would still be required to report on penalties and permits because policies and practices in regard to each would still be included as part of the State enforcement plans required pursuant to 23 CFR 657.9(b)(1)(ii) and (iii).

The FHWA is further proposing to eliminate a burdensome regulatory requirement found in section 657.15(f)(3)(iii) related to the reporting of overwidth movements for divisible loads. The requirement for States to report the number of permits issued for overwidth movement of a divisible load is no longer necessary and therefore the FHWA proposes that it be eliminated. Section 3003 of the Federal Reports Elimination and Sunset Act of 1995 (Pub. L. 104-66, 109 Stat. 707) eliminated this reporting requirement. In addition, the number of divisible overwidth permits issued by States has never been considered in determining whether a State is adequately enforcing its size and weight laws. The States have retained the authority to allow overwidth vehicles on the National Network by requiring a permit, and may issue any number of such permits on any basis that is deemed appropriate. Consequently, eliminating the need to report on the number of divisible overwidth permits issued would relieve States of an unnecessary and burdensome reporting requirement. This requirement would be deleted from section 657.15(f)(3)(iii).

References to the Office of Motor Carriers in 657.17(a) and (b) would be replaced in this proposed rule by references to the FHWA. In addition, the references in 657.17(b) to the “Office of Motor Carriers” and “Associate Administrator for Motor Carriers” would be eliminated, because those positions no longer exist.

The FHWA proposes to amend this section to replace the outdated reference to “Federal-aid highways.” The requirements in this section apply not to current Federal-aid highways (which comprise the National Highway System (NHS)), but to highways which, prior to October 1, 1991, were designated as part of the Federal-aid primary (FAP), Federal-aid secondary, (FAS) and Federal-aid urban (FAU) systems.

The second Federal-aid reference is correct because it refers to Federal-aid funds for the NHS that would be withheld if a State failed to adequately enforce its size and weight limits on highways that, prior to October 1, 1991, were designated as the FAP, FAS, and FAU systems.

The current definition for “Commercial motor vehicle” was issued in a final rule published March 12, 2004 (69 FR 11994) and excluded RVs during the relatively small amounts of time when they are operated for a commercial purpose, such as being driven from a manufacturer to a dealer. However, the definition as currently written is flawed because it would exclude them only when “operated” as RVs, i.e., when used for a private recreational purpose. As a result, RVs operated for a commercial purpose remained CMVs subject to Federal width limits. The FHWA is proposing to amend the definition to clarify those movements that include transportation to/from the manufacturer for customer delivery, sale, or display purposes are not subject to the provisions of this part. The FHWA believes that the rare occasions and limited periods of time in which a recreational vehicle is operated to/from the manufacturer does not change the characteristic of a vehicle enough to merit inclusion in the regulation. The FHWA invites comments on the possible safety effects of this proposed change.

The definition of “nondivisible” load or vehicle” provides criteria to determine whether or not a load is nondivisible. This definition is important, because with few exceptions, a State may not issue an overweight permit for a divisible load. This notice proposes to expand these criteria to include vehicles loaded with salt, sand, chemicals or a combination of these materials, to be used in spreading the materials on any winter roads, and when operating as emergency response vehicles. These vehicles may be equipped with, or without, a plow or blade in front. These vehicles would necessarily use the Interstate System while performing its duties in order to access other roads. Although these vehicles transport divisible loads and could be loaded to less than capacity in order to comply with Federal Interstate weight limits, it would be counterproductive to their mission to require them to return to their depots for reloading more often. This would render them less effective in responding to emergency road conditions. In addition, the vehicles would be overweight for only a portion of their movement, since the load would be reduced as the material was deployed.

The FHWA has recognized the importance of treating snow or ice-covered highways quickly and efficiently. The proposed revision to the definition of “non-divisible load or vehicle” will facilitate the ability of States to meet emergency snow and ice conditions through the issuance of special overweight permits for emergency response vehicles. This proposed change would not extend to vehicles transporting sand, salt, and/or chemicals for other purposes than those specified above. The FHWA believes that this proposed change would be a reasonable action, balancing the safety of the motoring public during harsh winter weather against the effects of a temporarily overweight snow and ice removal vehicle. FHWA invites public comment on this proposed change to the regulations.

Section 4141 of SAFETEA-LU amended section 31111(a) of title 49, United States Code, to include a definition of “Drive-away Saddlemount with Fullmount Vehicle Transporter Combination” and to impose a vehicle length limitation of not less than or more than 97 feet on a drive-away saddlemount with fullmount vehicle transporter combinations. The SAFETEA-LU section 4141 defines the term “Drive-away Saddlemount with Fullmount Vehicle Transporter Combination” to mean “a vehicle combination designed and specifically used to tow up to 3 trucks or truck tractors, each connected by a saddle to the frame or fifth-wheel of the forward vehicle of the truck or truck tractor in front of it.” House committee staff that drafted the amendment alerted the FHWA that the lack of reference in the definition to the fullmount vehicle was intended to expand the term to include saddlemount combinations with or without fullmount. The FHWA believes that this is a reasonable interpretation of the SAFETEA-LU provision. As a result, the FHWA proposes to add the definition of “Drive-away Saddlemount Vehicle Transporter Combination” to its regulations, omitting the term fullmount, and amend its regulations at 23 CFR part 658 to extend the 97 foot length limitation to all drive-away saddlemount vehicle combinations that are specifically designed to tow up to 3 trucks or truck tractors, each connected by a saddle to the frame or fifth wheel of the forward vehicle of the truck or truck tractor in front of it.

Section 347 of the Consolidated Appropriations Resolution, 2003 (Pub. L. 108-7, 117 Stat. 419) included “over-the-road bus(es)” in the temporary exemption already provided for transit vehicles that allows them to exceed established Federal Interstate axle weights during Interstate operations. Section 658.5, however, does not contain a definition of “over-the-road bus.” The FHWA therefore proposes incorporating the previously established definition of “over-the-road bus” found in section 12181(5) of title 42, United States Code into § 658.5.

Section 4112 of SAFETEA-LU explicitly adds special rules for certain property-carrying units operating in Nebraska. Specifically, truck-tractors pulling trailers or semitrailers, used to transport custom harvester equipment during harvest months, may be allowed to operate on Nebraska highways at a length of up to 81 feet, 6 inches. The FHWA therefore proposes to amend § 658.13 to reflect this statutory change.

Section 4141 of SAFETEA-LU amended 49 U.S.C. 31111(a) and (b) by inserting a definition of “Drive-away Saddlemount with Fullmount Vehicle Transporter Combination” and preempted the States from prescribing or enforcing a regulation that “imposes a vehicle length limitation of not less than or more than 97 feet” on these vehicle combinations. As discussed above, the FHWA is proposing to amend the specialized equipment provision § 658.13(e)(1)(iii) to incorporate this statutory length limit that is now applicable to drive-away saddlemount vehicle transporter combinations.

Section 658.15(c)(2) currently exempts recreational vehicles from width limitations. Because, as discussed above, the FHWA is proposing to amend 23 CFR 658.5 to eliminate any Federal role in regulating the width of RVs as commercial motor vehicles, the agency is also proposing to eliminate this paragraph.

Section 347 of the Consolidated Appropriations Resolution, 2003 (Pub. L. 108-7, 117 Stat. 419) included over-the-road buses in the temporary exemption for transit vehicles. The definition of over-the-road bus used is that found in section 12181(5) of title 42, United States Code. Section 1309 of SAFETEA-LU extended the temporary exemption until October 1, 2009. Subsequently, the Transportation, Treasury, Housing and Urban Development, the Judiciary, the District of Columbia, and Independent Agencies Appropriations Act of 2006 (Pub. L. 109-115, 199 Stat. 2396) provided that a covered State, or any political subdivision in such State, may not enforce a single axle weight limitation of less than 24,000 pounds, including enforcement tolerances, on any transit or over-the-road bus. A “covered state” means a State that has enforced, in the period beginning October 6, 1992, and ending on November 30, 2005, a single axle weight limitation of 20,000 pounds or greater but less than 24,000 pounds. As a result, the FHWA proposes to amend the regulations in order to reflect the new, 24,000-pound axle weight provision mandated by Congress.

The Energy Policy Act of 2005 (Pub. L. 109-58, 119 Stat. 594) amended 23 U.S.C. 127(a) to allow an increase in the Federal weight limits by up to 400 pounds to account for idle reduction systems or auxiliary power units installed in any heavy-duty vehicle. The intent of this provision is to promote the use of technologies that reduce fuel consumption and emissions that result from engine idling. To qualify for this exception, drivers must present proof by demonstration and/or certification from the manufacturer, that the idle reduction technology is functional at all times, does not exceed 400 pounds gross weight (including fuel), and that the unit cannot be used for any other purpose. The FHWA is therefore proposing regulations to implement the standards for certification and weight tolerances of this new statutory provision. The FHWA encourages public comment on how the certification and demonstration required by this provision might best be carried out by State enforcement authorities or other sources.

As previously noted, prior to creation of the FMCSA, the responsibility for the enforcement of vehicle size and weight laws and regulations was a function delegated to the Office of Motor Carriers within the FHWA. After the creation of the FMCSA, various driver and vehicle safety inspection functions were transferred from the FHWA and the Office of Motor Carriers was eliminated. Consequently, the FHWA proposes to replace obsolete references to the Office of Motor Carriers with references to the FHWA.

Section 411(e)(1) of the Surface Transportation Assistance Act of 1982 (Pub. L. 97-424, 96 Stat. 2100) authorized the Secretary to designate Federal-Aid Primary (FAP) routes (including the Interstate System) where States must allow vehicles subject to Federal length and width requirements to operate. The resulting “National Network” is shown in appendix A to 23 CFR part 658. However, the explanatory column headings in appendix A currently contain an improper reference to the Federal-aid Primary highways.

This heading is not only incorrect but also unnecessary. It is incorrect because the final rule implementing the Intermodal Surface Transportation Efficiency Act of 1991 (ISTEA) (Pub. L. 102-240, 105 Stat. 1914) published June 13, 1991 (59 FR 30392) noted that, “The ISTEA [in section 4006(c)] effectively replaced what had been known as the FAP system with the NHS (National Highway System).” Thus, it is inappropriate to refer to the Federal-aid Primary Highway as it no longer exists. Further, the explanation is unnecessary because there is no need to indicate how the routes were derived since they are specifically listed. Therefore, the FHWA proposes to revise the explanatory heading of the columns in appendix A to read as follows:

Similarly, the listing for 16 States (AR, CO, IN, KS, LA, MS, MT, NE, NV, OH, OK, SD, TX, UT, WA, and WY) in appendix A are followed by an explanatory statement that reads as follows:

This statement is incorrect because there are no longer any highways designated as FAP, however highways on the National Network have not been specifically listed for these States so a general description is necessary. As noted earlier, the ISTEA preserved the Secretary's authority to designate National Network routes from FAP routes in existence as of June 1, 1991. Therefore, the FHWA proposes to revise the explanatory statement to read as follows:

The State of New Mexico has notified the FHWA of route number changes for routes on its portion of the National Network. These changes are numerical only and will not change the original network. The FHWA is therefore proposing to amend appendix A to reflect these route number changes. A portion of NM 550 has been re-designated NM 516, U.S. 80 has been re-designated NM 80, U.S. 64 now terminates at NM 516 Farmington, and U.S. 666 has been re-designated as NM 491.

Footnotes 1, 2, and 3 in appendix B to 23 CFR 658 refer to 23 CFR 658.13(h). However, section 658.13 was reorganized in a previous rulemaking action, at 67 FR 15110, March 29, 2002, and the provisions that formerly appeared in paragraph (h) are now found in paragraph (g). The footnotes will be corrected accordingly.

All comments received before the close of business on the comment closing date indicated above will be considered and will be available for examination in the docket at the above address. Comments received after the comment closing date will be filed in the docket and will be considered to the extent practicable. In addition to late comments, the FHWA will also continue to file relevant information in the docket as it becomes available after the comment period closing date, and interested persons should continue to examine the docket for new material. A final rule may be published at any time after close of the comment period.

The FHWA has determined preliminarily that this action is not a significant regulatory action within the meaning of Executive Order 12866 and would not be significant within the meaning of the U.S. Department of Transportation's regulatory policies and procedures. This proposed rule will not adversely affect, in a material way, any sector of the economy. This proposed action changes out-dated references to offices within the FHWA and updates the current regulations to reflect changes made by the Congress in SAFETEA-LU and other recent legislation. Additionally, this proposed action would add various definitions; correct obsolete references, definitions, and footnotes; eliminate redundant provisions; amend numerical route changes to the National Highway designations; and incorporate a statutorily mandated weight limit provision. There will not be any additional costs incurred by any affected group as a result of this rule. In addition, these proposed changes will not interfere with any action taken or planned by another agency and will not materially alter the budgetary impact of any entitlements, grants, user fees or loan programs. Consequently, a regulatory evaluation is not required.

In compliance with the Regulatory Flexibility Act (Pub. L. 96-354, 5 U.S.C. 601-612), we have evaluated the effects of this proposed action on small entities and have determined that the proposed action would not have a significant economic impact on a substantial number of small entities. The FHWA certifies that this action will not have a significant economic impact on a substantial number of small entities.

This proposed action has been analyzed in accordance with the principles and criteria contained in Executive Order 13132, and the FHWA has preliminarily determined that this proposed action would not warrant the preparation of a Federalism assessment. Any federalism implications arising from this proposed rule are attributable to SAFETEA-LU sections 4112 and 4141. The FHWA has determined that this proposed action would not affect the States' ability to discharge traditional State government functions.

Catalog of Federal Domestic Assistance Program Number 20.205, Highway Planning and Construction. The regulations implementing Executive Order 12372 regarding intergovernmental consultation on Federal programs and activities apply to this program. Accordingly, the FHWA solicits comments on this issue.

Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501), Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct, sponsor, or require through regulations. The FHWA has determined that this proposal does not contain collection of information requirements for the purposes of the PRA.

This proposed rule would not impose unfunded mandates as defined by the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, 109 Stat. 48). This proposed rule will not result in the expenditure by State, local and tribal governments, in the aggregate, or by the private sector, of $120.7 million or more in any one year. (2 U.S.C. 1532) Further, in compliance with the Unfunded Mandates Reform Act of 1995, the FHWA will evaluate any regulatory action that might be proposed in subsequent stages of the proceeding to assess the effects on State, local, and tribal governments and the private sector.

This proposed action 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.

The FHWA has analyzed this proposed action under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. The FHWA certifies that this proposed action would not cause any environmental risk to health or safety that may disproportionately affect children.

The FHWA has analyzed this proposed rule under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights. The FHWA does not anticipate that this proposed action would affect a taking of private property or otherwise have taking implications under Executive Order 12630.

The FHWA has analyzed this proposed action for the purposes of the National Environmental Policy Act of 1969, as amended (42 U.S.C. 4321-4347) and has determined that this proposed action will not have any effect on the quality of the environment.

The FHWA has analyzed this action under Executive Order 13175, dated November 6, 2000, and believes that the proposed action would not have substantial direct effects on one or more Indian tribes; would not impose substantial compliance costs on Indian tribal governments; and will not preempt tribal law. Therefore, a tribal summary impact statement is not required.

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. Therefore, a Statement of Energy Effects is not required.

A regulation identification number (RIN) is assigned to each regulatory section listed in the Unified Agenda of Federal Regulations. The Regulatory Information Service Center publishes the Unified Agenda in April and October of each year. The RIN contained in the heading of this document can be used to cross-reference this section with the Unified Agenda.

In consideration of the foregoing, the FHWA proposes to amend Chapter I of title 23, Code of Federal Regulations, by revising Parts 657 and 658, respectively, as set forth below.

We encourage you to participate in this rulemaking by submitting comments and related material. If you do so, please include your name and address, identify the docket number for this rulemaking (CGD05-06-033), indicate the specific section of this document to which each comment applies, and give the reason for each comment. Please submit all comments and related material in an unbound format, no larger than 8 1/2 by 11 inches, suitable for copying. If you would like to know they reached us, please enclose a stamped, self-addressed postcard or envelope. We will consider all comments and material received during the comment period. We may change this proposed rule in view of them.

We do not now plan to hold a public meeting. But you may submit a request for a meeting by writing to the Coast Guard at the address listed under ADDRESSES explaining why one 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 4 and August 6, 2006, Super Boat International Productions will sponsor the “SBIP—Fountain Powerboats Kilo Run and Super Boat Grand Prix”, on the Pamlico River, near Washington, North Carolina. The event will consist of approximately 40 high-speed powerboats racing in heats along a 5-mile oval course on August 4 and 6, 2006. Preliminary speed trials along a straight one-kilometer course will be conducted on August 4, 2006. Approximately 20 boats will participate in the speed trials. Approximately 100 spectator vessels will gather nearby to view the speed trials and the race. If either the speed trials or races are postponed due to weather, they will be held the next day. During the speed trials and the races, vessel traffic will be temporarily restricted to provide for the safety of participants, spectators and transiting vessels.

The Coast Guard proposes to establish temporary special local regulations on specified waters of the Pamlico River near Washington, North Carolina. The temporary special local regulations will be enforced from 6:30 a.m. to 12:30 p.m. on August 4, 2006, and from 10:30 a.m. to 4:30 p.m. on August 6, 2006. If either the speed trials or races are postponed due to weather, then the temporary special local regulations will be enforced during the same time period the next day. The effect of the temporary special local regulations will be to restrict general navigation in the regulated area during the speed trials and races. Except for persons or vessels authorized by the Coast Guard Patrol Commander, no person or vessel may enter or remain in the regulated area. Non-participating vessels will be allowed to transit the regulated area between races, when the Coast Guard Patrol Commander determines it is safe to do so. These regulations are needed to control vessel traffic during the event to enhance the safety of participants, spectators and transiting vessels.

This proposed rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. It is not “significant” under the regulatory policies and procedures of the Department of Homeland Security (DHS).

We expect the economic impact of this proposed rule to be so minimal that a full Regulatory Evaluation under the regulatory policies and procedures of DHS is unnecessary.

Although this proposed regulation will prevent traffic from transiting a portion of the Pamlico River near Washington, North Carolina during the event, the effect of this regulation will not be significant due to the limited duration that the regulated area will be in effect. Extensive advance notifications will be made to the maritime community via Local Notice to Mariners, marine information broadcasts, local radio stations and area newspapers, so mariners can adjust their plans accordingly. Vessel traffic may be able to transit the regulated area between races, when the Coast Guard Patrol Commander deems it is safe to do so.

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

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

This proposed rule would not have a significant economic impact on a substantial number of small entities for the following reasons. This rule will be enforced for only a short period, from 6:30 a.m. to 12:30 p.m. on August 4, 2006 and from 10:30 a.m. to 4:30 p.m. on August 6, 2006. The regulated area will apply to a segment of the Pamlico River near the Washington, North Carolina waterfront. Marine 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 during the event, vessels will be required to proceed at the minimum speed necessary to maintain a safe course that minimizes wake near the race course. Before the enforcement period, we would 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 the Coast Guard at the address listed under ADDRESSES . The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.

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

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

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

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

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

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

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

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

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

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

We have analyzed this proposed rule under Commandant Instruction M16475.lD, which guides the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded that there are no factors in this case that would limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Therefore, this rule is categorically excluded, under figure 2-1, paragraph (34)(h), of the Instruction, from further environmental documentation. Special local regulations issued in conjunction with a regatta or marine parade permit are specifically excluded from further analysis and documentation under that section.

Under figure 2-1, paragraph (34)(h), of the Instruction, an “Environmental Analysis Check List” and a “Categorical Exclusion Determination” are not required for this rule. Comments on this section will be considered before we make the final decision on whether to categorically exclude this rule from further environmental review.

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

Request for Comments

We encourage you to participate in this rulemaking by submitting comments and related material. If you do so, please include your name and address, identify the docket number for this rulemaking (CGD05-06-037), indicate the specific section of this document to which each comment applies, and give the reason for each comment. Please submit all comments and related material in an unbound format, no larger than 8 1/2 by 11 inches, suitable for copying. If you would like to know they reached us, please enclose a stamped, self-addressed postcard or envelope. We will consider all comments and material received during the comment period. We may change this proposed rule in view of them.

We do not now plan to hold a public meeting. But you may submit a request for a meeting by writing to the address under ADDRESSES explaining why one 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 23, 2006, the Atlantic City Chamber of Commerce will sponsor the “Thunder over the Boardwalk Airshow”. The event will consist of high performance jet aircraft performing low altitude aerial maneuvers over the waters of the Atlantic Ocean adjacent to Atlantic City, New Jersey. A fleet of spectator vessels is expected to gather nearby to view the aerial demonstration. Due to the need for vessel control during the event, vessel traffic will be temporarily restricted to provide for the safety of spectators and transiting vessels.

The Coast Guard proposes to establish temporary special local regulations on specified waters of the Atlantic Ocean adjacent to Atlantic City, New Jersey. The regulated area includes a section of the Atlantic Ocean approximately 2.5 miles long, running from Pennsylvania Avenue to Columbia Avenue, and extending approximately 900 yards out from the shoreline. The temporary special local regulations will be enforced from 10:30 a.m. to 3 p.m. on August 23, 2006, and will restrict general navigation in the regulated area during the aerial demonstration. Except for persons or vessels authorized by the Coast Guard Patrol Commander, no person or vessel may enter or remain in the regulated area during the enforcement period.

This proposed rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. It is not “significant” under the regulatory policies and procedures of the Department of Homeland Security (DHS).

We expect the economic impact of this proposed rule to be so minimal that a full Regulatory Evaluation under the regulatory policies and procedures of DHS is unnecessary.

Although this proposed regulation prevents traffic from transiting a portion of the Atlantic Ocean adjacent to Atlantic City, New Jersey during the event, the effect of this regulation will not be significant due to the limited duration that the regulated area will be in effect and the extensive advance notifications that will be made to the maritime community via marine information broadcasts and area newspapers so mariners can adjust their plans accordingly.

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this 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 vessels intending to transit this section of the Atlantic Ocean during the event.

This proposed rule will not have a significant economic impact on a substantial number of small entities for the following reasons. This rule will be in effect for only a short period, from 10:30 a.m. to 3 p.m. on August 23, 2006. Affected waterway users can pass safely around the regulated area. 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 the address listed under ADDRESSES . The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.

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

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

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

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

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

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

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

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

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

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

We have analyzed this proposed rule under Commandant Instruction M16475.lD, which guides the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have made a preliminary determination that there are no factors in this case that would limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Therefore, we believe that this rule should be categorically excluded, under figure 2-1, paragraph (34)(h), of the Instruction, from further environmental documentation.

Under figure 2-1, paragraph (34)(h), of the Instruction, an “Environmental Analysis Check List” is not required for this rule. Comments on this section will be considered before we make the final decision on whether to categorically exclude this rule from further environmental review.

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

The meetings are open to the public. The Committee was established pursuant to the Negotiated Rulemaking Act of 1990 (5 U.S.C. 561-570). The purpose of the Committee is to consider developing a special regulation for dogwalking at Golden Gate National Recreation Area. Interested persons may provide brief oral/written comments to the Committee during the Public Comment period of the meeting or file written comments with the GGNRA Superintendent.

In Title VIII of the Alaska National Interest Lands Conservation Act (ANILCA) (16 U.S.C. 3111-3126), Congress found that “the situation in Alaska is unique in that, in most cases, no practical alternative means are available to replace the food supplies and other items gathered from fish and wildlife which supply rural residents dependent on subsistence uses * * *” and that “continuation of the opportunity for subsistence uses of resources on public and other lands in Alaska is threatened * * *.” As a result, Title VIII requires, among other things, that the Secretary of the Interior and the Secretary of Agriculture (Secretaries) implement a program to provide for rural Alaska residents a priority for the taking for subsistence uses of fish and wildlife resources on public lands in Alaska, unless the State of Alaska enacts and implements laws of general applicability that are consistent with ANILCA and that provide for the subsistence definition, priority, and participation specified in Sections 803, 804, and 805 of ANILCA.

The State implemented a program that the Department of the Interior previously found to be consistent with ANILCA. However, in December 1989, the Alaska Supreme Court ruled in McDowell v. State of Alaska that the rural priority in the State subsistence statute violated the Alaska Constitution. The Court's ruling in McDowell caused the State to delete the rural priority from the subsistence statute which therefore negated State compliance with ANILCA. The Court stayed the effect of the decision until July 1, 1990. As a result of the McDowell decision, the Department of the Interior and the Department of Agriculture (Departments) assumed, on July 1, 1990, responsibility for implementation of Title VIII of ANILCA on public lands. On June 29, 1990, the Departments published the Temporary Subsistence Management Regulations for Public Lands in Alaska in the Federal Register (55 FR 27114). Permanent regulations were jointly published on May 29, 1992 (57 FR 22940), and have been amended since then.

As a result of this joint process between Interior and Agriculture, these regulations can be found in the Code of Federal Regulations (CFR) both in title 36, “Parks, Forests, and Public Property,” and title 50, “Wildlife and Fisheries,” at 36 CFR 242.1-28 and 50 CFR 100.1-28, respectively. The regulations contain the following subparts: Subpart A, General Provisions; Subpart B, Program Structure; Subpart C, Board Determinations; and Subpart D, Subsistence Taking of Fish and Wildlife.

Consistent with Subparts A, B, and C of these regulations, as revised May 7, 2002 (67 FR 30559), and December 27, 2005 (70 FR 76400), the Departments established a Federal Subsistence Board (Board) to administer the Federal Subsistence Management Program, as established by the Secretaries. The Board's composition includes a Chair appointed by the Secretary of the Interior with concurrence of the Secretary of Agriculture; the Alaska Regional Director, U.S. Fish and Wildlife Service; the Alaska Regional Director, U.S. National Park Service; the Alaska State Director, U.S. Bureau of Land Management (BLM); the Alaska Regional Director, U.S. Bureau of Indian Affairs; and the Alaska Regional Forester, USDA Forest Service. Through the Board, these agencies participated in the development of regulations for Subparts A, B, and C, and the annual Subpart D regulations.

Federal Subsistence Management Regulations (50 CFR 100.3 and 36 CFR 242.3) currently specify that “The public lands described in paragraphs (b) and (c) of this section remain subject to change through rulemaking pending a Department of the Interior review of title and jurisdictional issues regarding certain submerged lands beneath navigable waters in Alaska.” In April 2005, the Board requested a review by the U.S. Department of the Interior's, Office of the Solicitor to determine whether a Federal interest presently exists in certain areas of southeastern Alaska. The specific areas were originally identified by the Sitka Tribe of Alaska and presented before the Southeast Alaska Subsistence Regional Advisory Council, who forwarded a request for review to the Board. In November 2005, the Office of the Solicitor responded that the Makhnati Island area withdrawal in Executive Order 8877 (August 29, 1941) was not rescinded until after statehood, so the submerged land did not transfer to the State of statehood. Since this submerged land is not included in any other withdrawal, reservation, or administrative setaside, the marine submerged lands, including any filled lands owned by the United States, are under the administration of the BLM. Accordingly, the Solicitor's Office indicated that this area should be included within the jurisdiction of the Federal Subsistence Management Program. See 70 FR 76400 (December 27, 2005).

The specific area encompasses approximately 610 acres of land and water adjacent to Japonski Island. Whiting Harbor and numerous small islands are included within the boundary of the withdrawal. The Board recommends the inclusion of this area in the Federal Subsistence Management Program. Therefore, we propose to amend the Federal Subsistence Management Regulations for Public Lands in Alaska to reflect Federal subsistence management jurisdiction in the area of Makhnati Island, near Sitka, Alaska.

We propose to amend Section __3(b), which includes those areas where marine waters are included, and where the regulations contained in 50 CFR 100 and 36 CFR 242 apply to both navigable and non-navigable waters. If additional marine submerged lands are determined in the future to be held by the United States, those additional lands would be the subject of future rulemakings.

Because the Federal Subsistence Management Program relates to public lands managed by an agency or agencies in both the Departments of Agriculture and the Interior, we would propose to incorporate identical text into 36 CFR part 242 and 50 CFR part 100.W

A Draft Environmental Impact Statement (DEIS) for developing a Federal Subsistence Management Program was distributed for public comment on October 7, 1991. That document described in major issues associated with Federal subsistence management as identified through public meetings, written comments, and staff analysis, and examined the environmental consequences of four alternatives. Proposed regulations (Subparts A, B, and C) that would implement the preferred alternative were included in the DEIS as an appendix. The DEIS and the proposed administrative regulations presented a framework for an annual regulatory cycle regarding subsistence hunting and fishing regulations (Subpart D). The Final Environmental Impact Statement (FEIS) was published on February 28, 1992.

Based on the public comments received, the analysis contained in the FEIS, and the recommendations of the Federal Subsistence Board and the Department of the Interior's Subsistence Policy Group, the Secretary of the Interior, with the concurrence of the Secretary of Agriculture, through the U.S. Department of Agriculture—Forest Service, implemented Alternative IV as identified in the DEIS and FEIS (Record of Decision on Subsistence Management for Federal Public Lands in Alaska (ROD), signed April 6, 1992). The DEIS and the selected alternative in the FEIS defined the administrative framework of an annual regulatory cycle for subsistence hunting and fishing regulations. The final rule for Subsistence Management Regulations for Public Lands in Alaska, Subparts A, B, and C, published May 29, 1992, implemented the Federal Subsistence Management Program and included a framework for an annual cycle for subsistence hunting and fishing regulations. The following Federal Register documents pertain to this rulemaking:

An environmental assessment was prepared in 1997 on the expansion of Federal jurisdiction over fisheries and is available by contacting the office listed under FOR FURTHER INFORMATION CONTACT . The Secretary of the Interior with the concurrence of the Secretary of Agriculture determined that the expansion of Federal jurisdiction did not constitute a major Federal action significantly affecting the human environment, and therefore, signed a Finding of No Significant Impact.

The intent of all Federal subsistence regulations is to accord subsistence uses of fish and wildlife on public lands a priority over the taking of fish and wildlife on such lands for other purposes, unless restriction is necessary to conserve healthy fish and wildlife populations. A Section 810 analysis was completed as part of the FEIS process. The final Section 810 analysis determination appeared in the April 6, 1992, ROD, which concluded that the Federal Subsistence Management Program may have some local impacts on subsistence uses, but that the program is not likely to significantly restrict subsistence uses.

These rules contain no new information collection requirements subject to Office of Management and Budget (OMB) approval under the Paperwork Reduction Act of 1995. They apply to the use of public lands in Alaska. The information collection requirements described in the rule were approved by OMB under 44 U.S.C. 3501 and were assigned clearance number 1018-0075, which expires August 31, 2006. We will not conduct or sponsor, and you are not required to respond to, a collection of information request unless it displays a currently valid OMB control number.

Economic Effects—This rule is not a significant rule subject to OMB review under Executive Order 12866. This rulemaking will impose no significant costs on small entities; this rule does not restrict any existing sport or commercial fishery on the public lands, and subsistence fisheries will continue at essentially the same levels as they presently occur. The number of businesses and the amount of trade that will result from this Federal land-related activity is unknown but expected to be insignificant.

The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq. requires preparation of regulatory flexibility analyses for rules that will have a significant economic effect on a substantial number of small entities, which include small businesses, organizations, or governmental jurisdictions. The Departments have determined that this rulemaking will not have a significant economic effect on a substantial number of small entities within the meaning of the Regulatory Flexibility Act.

This rulemaking will impose no significant costs on small entities; the exact number of businesses and the amount of trade that will result from this Federal land-related activity is unknown. The aggregate effect is an insignificant positive economic effect on a number of small entities, such as tackle, boat, and gasoline dealers. The number of small entities affected is unknown; however, the fact that the positive effects will be seasonal in nature and will, in most cases, merely continue preexisting uses of public lands indicates that the effects will not be significant.

In general, the resources harvested under this rule will be consumed by the local harvester and do not result in a dollar benefit to the economy. However, we estimate that about 26.2 million pounds of fish (including about 9 million pounds of salmon) are harvested Statewide by the local subsistence users annually and, if based on a replacement value of $3.00 per pound, would equate to $78.6 million in food value Statewide.

Title VIII of ANILCA requires the Secretaries to administer a subsistence preference on public lands. The scope of this program is limited by definition to certain public lands. Likewise, these regulations have no potential takings of private property implications as defined by Executive Order 12630.

The Service has determined and certifies pursuant to the Unfunded Mandates Reform Act, 2 U.S.C. 1502 et seq. that this rulemaking will not impose a cost of $100 million or more in any given year on local or State governments or private entities. The implementation of this rule is by Federal agencies, and no cost is involved to any State or local entities or tribal governments.

The Service has determined that these regulations meet the applicable standards provided in Sections 3(a) and 3(b)(2) of Executive Order 12988 on Civil Justice Reform.

In accordance with Executive Order 13132, the rule does not have sufficient federalism implications to warrant the preparation of a federalism assessment. title VIII of ANILCA precludes the State from exercising subsistence management authority over fish and wildlife resources on Federal lands unless their program is compliant with the requirements of that Title.

In accordance with the President's memorandum of April 29, 1994, “Government-to-Government Relations with Native American Tribal Governments” (59 FR 22951), 512 DM 2, and E.O. 13175, we have evaluated possible effects on federally recognized Indian tribes and have determined that there are no effects. The Bureau of Indian Affairs is a participating agency in this rulemaking.

On May 18, 2001, the President issued Executive Order 13211 on regulations that significantly affect energy supply, distribution, or use. The Executive Order requires agencies to prepare Statements of Energy Effects when undertaking certain actions. As this rule is not a significant regulatory action under Executive Order 13211, affecting energy supply, distribution, or use, this action is not a significant action and no Statement of Energy Effects is required.

William Knauer drafted these regulations under the guidance of Thomas H. Boyd of the Office of Subsistence Management, Alaska Regional Office, U.S. Fish and Wildlife Service, Anchorage, Alaska. Dennis Tol and Taylor Brelsford, Alaska State Office, Bureau of Land Management; Greg Bos, Carl Jack, and Jerry Berg, Alaska Regional Office, U.S. Fish and Wildlife Service; San Rabinowitch and Nancy Swanton, Alaska Regional Office, National Park Service; Warren Eastland, Pat Petrivelli, and Dr. Glenn Chen, Alaska Regional Office, Bureau of Indian Affairs; and Steve Kessler, Alaska Regional Office, USDA-Forest Service provided additional guidance.

For the reasons set out in the preamble, the Secretaries propose to amend title 36, part 242, and title 50, part 100, of the Code of Federal Regulations, as set forth below.

Entities Table. Entities potentially affected by this proposed action include, but are not limited to, the following:

This table is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be regulated by this action. This table lists the types of entities that we are now aware could potentially be regulated by this action.

A comprehensive list of NAICS codes cannot be compiled for businesses or facilities potentially regulated by the rule due to the nature of activities regulated by the source category. The industrial code alone for a given facility does not determine whether the facility is or is not potentially subject to the rule. The rule may be applicable to any type of business or facility at which a site remediation is conducted to clean up media contaminated with organic HAP and other hazardous material. Thus, for many businesses and facilities subject to the rule, the regulated sources (i.e., the site remediation activities) are not the predominant activity, process, operation, or service conducted at the facility. In these cases, the industrial code indicates a primary product produced or service provided at the facility rather than the presence of a site remediation at the facility. For example, NAICS code classifications where site remediation activities are currently being performed at some but not all facilities include, but are not limited to, petroleum refineries (NAICS code 32411), industrial organic chemical manufacturing (NAICS code 3251xx), and plastic materials and synthetics manufacturing (NAICS code 3252xx). However, we are also aware of site remediation activities potentially subject to the rule being performed at facilities listed under NAICS codes for refuse systems, waste management, business services, miscellaneous services, and nonclassifiable.

To determine whether your facility is regulated by the action, you should carefully examine the applicability criteria in the 40 CFR part 63, subpart GGGGG—National Emissions Standards for Hazardous Air Pollutants: Site Remediation. If you have questions regarding the applicability of this action to a particular entity, consult the person listed in the preceding FOR FURTHER INFORMATION CONTACT section.

WorldWide Web (WWW). Following the Administrator's signature, a copy of the proposed amendments will be posted on the Technology Transfer Network's (TTN) policy and guidance page for newly proposed or promulgated rules at http://www.epa.gov/ttn/oarpg. The TTN provides information and technology exchange in various areas of air pollution control.

Public Hearing. If a public hearing is requested, it will be held at 10 a.m. at the EPA Facility Complex in Research Triangle Park, North Carolina or at an alternate site nearby. Contact Mr. Greg Nizich at 919-541-3078 to request a hearing, to request to speak at a public hearing, to determine if a hearing will be held, or to determine the hearing location.

Outline. The information presented in this preamble is organized as follows:

We promulgated subpart GGGGG, National Emission Standards for Hazardous Air Pollutants: Site Remediation, in 40 CFR part 63 on October 8, 2003 (68 FR 58172). Subpart GGGGG applies to owners and operators of facilities that are major sources of HAP emissions and where a site remediation is conducted that meets the definitions and conditions specified in the final rule. Certain types of site remediations are explicitly exempted from being subject to the final rule. Each site remediation subject to the final rule must meet the emission limitation and work practice standards in subpart GGGGG that apply to the source types (e.g., process vents, tanks, containers, equipment components) used to perform or associated with the site remediation activities.

Since the promulgation of subpart GGGGG of 40 CFR part 63, we have received questions about our interpretation of specific provisions in the final rule. To clarify these issues, we decided that technical amendments to the final rule are appropriate. Also, as part of today's action, we are proposing to amend other rule language to correct technical omissions, and to correct terminology, typographical, printing, and grammatical errors that we have identified since promulgation. The proposed amendments would not significantly change our original projections for the final rule's compliance costs, environmental benefits, burden on industry, or the number of affected facilities.

A petition for reconsideration for the final rule was filed by the Sierra Club on December 8, 2003. The amendments proposed today do not address any issues cited in the Sierra Club's petition. We are still reviewing the items for reconsideration and will address them in a future notice.

We are proposing to amend 40 CFR part 63, subpart GGGGG, to clarify our intent for applying and implementing specific rule requirements and to correct unintentional technical omissions and editorial errors. A summary of the proposed amendments to the final rule and the rationale for these amendments are presented below.

Subpart GGGGG of 40 CFR part 63 provides an exemption for certain short-term site remediations performed at facilities subject to the final rule. Specifically, site remediations where the cleanup of a contaminated area at the facility can be completed within 30 consecutive calendar days are exempted from the air emission control requirements in subpart GGGGG. This exemption is included in the final rule to facilitate the prompt cleanup of contamination resulting from small spills or similar events where the facility owner or operator can quickly complete the cleanup in a short period of time. Following promulgation of the rule, we received requests to clarify how the 30-day limit is implemented.

As we discussed in the preamble to the final rule (68 FR 58185), the time interval for this exemption is based on the time required to complete those remediation activities that actually emit or have a potential to emit HAP. Furthermore, this exemption applies to those cleanups of contaminated areas that can reasonably be completed within a period much shorter than 30 days (e.g., several days, 1 to 2 weeks). We chose the 30-day interval specified in the final rule in consideration of those situations where a cleanup at a particular site that normally should be completed within several days or a week takes longer to complete because factors beyond the control of the owner or operator temporarily suspend or delay the remediation activities (such as severe weather or unexpected machinery breakdowns). Therefore, we decided that selecting a maximum of 30 days for the short-term site remediation exemption allows a sufficient extended period to complete cleanups that experience unavoidable delays and provides a reasonable time buffer to account for any unforeseen circumstances that may develop at a site.

It is our intention that the short-term site remediation exemption only applies to those cleanups where all associated activities can be completed within 30 days (including any off-site treatment of the remediation materials) such that the organic HAP constituents in all of the remediation material resulting from the cleanup of the contaminated area no longer have a reasonable potential for volatilizing and being released to the atmosphere. In other words, we do not consider simply shipping the remediation material generated by the cleanup to another site by the 30th day as complying with the exemption's intended scope. Materials containing organic HAP that are shipped off-site may still have the potential for the organics to volatilize and, consequently, be released to the atmosphere. Unless properly treated or disposed of, the action of shipping the remediation materials to an off-site location effectively just moves the HAP emissions point to another location and extends the time available for the organic HAP to be emitted.

We are proposing to amend 40 CFR 63.7884 to clarify the final rule language with respect to our intent for application of the short-term remediation exemption, including those situations when the remediation material is transferred off-site. The proposed amendment language would explicitly define the beginning and end of the 30-day exemption period. Within this 30-day period, regardless of the location where the treatment or disposal occurs (i.e., either on-site or at another facility), final treatment or disposal of all remediation material generated during the cleanup would need to be completed.

The first day of the 30-day exemption period would be defined as the day on which you initiate any action that removes, destroys, degrades, transforms, immobilizes, or otherwise manages the remediation materials. Consistent with the exemption under the existing rule, the following activities, when completed before beginning this initial action, would not be counted as part of the 30-day period: Activities to characterize the type and extent of the contamination by collecting and analyzing samples; activities to obtain permits from Federal, State, or local authorities to conduct the site remediation; activities to schedule workers and necessary equipment; and activities to arrange for contractor or third party assistance in performing the site remediation.

The last day of the exemption period would be defined as the day on which all of the remediation materials generated by the cleanup have been treated or disposed of (either at the cleanup site or another site) in a manner such that the organic HAP in the material no longer have a reasonable potential for volatilizing and being released to the atmosphere. This means the final treatment or disposal of all of the remediation material must be completed within the 30-day period following initiation of the cleanup. A site remediation where the only activities completed are excavating or otherwise removing the contaminated material, and then storing this material (e.g., in waste piles, tanks, or containers) during the 30-day period does not qualify for the exemption. In this case, the processes and equipment used for site remediation would need to meet the applicable emissions limitations and work practice standards in the final rule (unless the site remediation qualifies for another exemption allowed under the final rule).

Similarly, simply shipping all the remediation material off-site by the 30th day does not meet the conditions of the exemption. If the remediation materials generated by a cleanup are shipped off-site for treatment or disposal, then the owner or operator would be required to complete the transfer of all of the materials to a facility where these materials would be treated or disposed of within the 30-day period such that the organic HAP constituents in the materials no longer have a reasonable potential for volatilizing and subsequent release to the atmosphere. In situations when the off-site treatment or disposal of the remediation material cannot be completed within the 30-day period, then the remediation material is subject to 40 CFR 63.7936 of subpart GGGGG which specifies the requirements you must meet when you transfer remediation material off-site.

Subpart GGGGG of 40 CFR part 63 establishes standards to control organic HAP emissions from certain remediation material management units (i.e., tanks, surface impoundments, containers, oil/water separators, organic/water separators and transfer systems) used for remediation activities. The final rule requires that those units managing remediation material with an average VOHAP concentration equal to or greater than 500 parts per million by weight (ppmw), meet the applicable emission limitation and work practice standards for the remediation material management unit specified in the rule. If the VOHAP concentration of the material is less than 500 ppmw, then the remediation material management units handling this material are not required to meet the air emission control requirements in subpart GGGGG. The VOHAP concentration is based on the organic HAP content of the remediation material determined by either direct measurement of samples of the remediation material or through use of knowledge of the remediation material (i.e., application of the owner's or operator's expertise using appropriate information regarding the remediation material).

As promulgated, subpart GGGGG of 40 CFR part 63 requires the VOHAP concentration for the remediation material to be determined at the “point-of-extraction.” This term is defined to be a point above ground where you can collect samples of a remediation material before, or at the first point where, organic constituents in the material have the potential to volatilize and be released to the atmosphere, and (in all instances) before placing the material in a remediation material management unit.

This point of determination is different from the definition we originally proposed for subpart GGGGG of 40 CFR part 63. In the proposed rule, the VOHAP concentration of the remediation material was specified to be determined at a point prior to, or within, a remediation material management unit, provided that organic constituents in the material have not been allowed to volatilize and be released to the atmosphere. This approach was discussed in the preamble to the proposed rule (67 FR 49408) and proposed in 40 CFR 63.7882(c)(4)(i) and 40 CFR 63.7912(a). We proposed this approach because it simplifies the determination procedure for the wide variety of treatment and management processes that can be used for site remediation activities.

The approach addresses situations not only when there is a single remediation material stream, but also those situations when there are two or more combined material streams (either only remediation materials or remediation materials with non-remediation materials). If a single material stream (or combination of streams) having a VOHAP concentration of 500 ppmw or greater is managed in a remediation material management unit, then the unit is subject to the air emission control requirements for the particular unit, as specified in the final rule. If at a further downstream point, the VOHAP concentration of the material falls below the 500 ppmw action level following treatment, the material no longer needs to be managed in units that meet the applicable air emission control requirements in subpart GGGGG of 40 CFR part 63 (however, these units would still need to comply with any applicable control under other Federal or State air rules). Similarly, if the VOHAP concentration of a remediation material through processing or other means is increased in a remediation material management unit to a level at or greater than the 500 ppmw action level, that unit will need to use the appropriate controls specified in subpart GGGGG.

We received no adverse public comment on the proposed approach. We did, however, receive unrelated adverse public comments stating that the format we used for the proposed rule (e.g., reliance on presenting many rule requirements in an exclusively tabular format and extensive cross-referencing to provisions in other subparts in 40 CFR part 63) made the rule difficult to read and understand. In response to these comments, we significantly revised the editorial format and organization of the final rule. In doing so, the rule language we proposed designating the point where the VOHAP concentration of a remediation material is to be determined for the purpose of identifying those remediation material management units not subject to the rule's air emission control requirements (i.e., units managing remediation material having a VOHAP concentration less than the 500 ppmw action level) was unintentionally misstated when we converted this provision to the new format and wording used for the final rule.

Today's proposed amendments would correct our error by amending the language in subpart GGGGG of 40 CFR part 63 regarding the point where the VOHAP concentration of remediation material is determined, and reinstate the same regulatory approach and language that we used for the proposed rule. This regulatory language would be placed in the appropriate sections of the reformatted final version of subpart GGGGG with appropriate adjustments of terminology and section cross-references consistent with the final rule structure.

In addition, today's proposed amendments would remove the term “point-of-extraction” in the final rule since the term no longer is needed to implement any provision of subpart GGGGG of 40 CFR part 63 and would specify that you determine the average total VOHAP concentration of the remediation material at a point prior to or within a remediation material management unit. The applicable regulatory language under the procedures in 40 CFR 63.7943 for determining average VOHAP concentration of a remediation material would also be revised using the original proposal language to the fullest extent possible under the format of the final rule. Thus, we would be implementing our intended approach for determining the VOHAP concentration of the remediation material. Under today's proposed amendments (consistent with our original proposal), once the VOHAP concentration for a remediation material has been determined to be less than 500 ppmw, all remediation material management units downstream from the point of determination managing this material would no longer be required to meet the air emission control requirements in subpart GGGGG unless a remediation process is used that concentrates all, or part of, the remediation material being managed in the unit such that the VOHAP concentration of the material increases to 500 ppmw or more (e.g., free-product separation).

An applicability exemption is provided in 40 CFR 63.7881(c) for a facility that is a major source of HAP and is subject to another subpart under 40 CFR part 63, but where the annual quantity of organic HAP in the materials generated by the site remediations conducted at the facility is less than 1 megagram per year (Mg/yr). Facilities at which the site remediation activities qualify for this exemption are not subject to the final rule except for recordkeeping requirements. The owner or operator is required to maintain records documenting that the total quantity of the organic HAP in the remediation materials generated by site remediations at the facility is less than 1 Mg/yr. This section of the final rule has been wrongly interpreted by some to mean that the 1 Mg/yr limit is applied on an individual site remediation basis. By this interpretation, at a facility where two site remediations are conducted in a year, each site remediation would be allowed to generate remediation materials having total organic HAP content up to 1 Mg/yr resulting in a facilitywide total of 2 Mg/yr, which is not what we intended. This is not how the exemption provisions are to be applied to a facility.

The 1 Mg/yr limit for the exemption is applied on a facilitywide basis. As we stated in the proposal (67 FR 49406), the exemption applies to a facility for which the owner or operator demonstrates that the total annual organic HAP mass content of the remediation material cleaned up at a facility is less than 1 Mg/yr. The mass limit is based on the total organic HAP content of the remediation material at the facility, not the material from an individual site remediation at the facility. There is no restriction on the number of site remediations for which the exemption applies so long as the total organic HAP amount in the remediation materials generated by all of the site remediations conducted at the facility during a year is less than 1 Mg/yr.

To clarify the final rule language with respect to how the small-quantity remediation exemption is to be applied, we are proposing amended language for 40 CFR 63.7881(c). This language would not change how the 1 Mg/yr limit applies nor change the documentation requirements for the exemption now in the final rule, but simply and more explicitly state that the 1 Mg/yr limit applies on a facilitywide, calendar-year basis, and that there is no restriction of the number of site remediations under the exemption.

The requirements for owners and operators transferring remediation material, having an average VOHAP concentration of 10 ppmw or greater, to an off-site facility are specified in 40 CFR 63.7936 of subpart GGGGG. This section has been incorrectly interpreted by some to mean that any remediation material transferred off-site with a VOHAP concentration at or above the 10 ppmw action level has some treatment obligation under subpart GGGGG. While we are not proposing to amend the existing language in 40 CFR 63.7936, we are including an explanation here to clarify how the 10 ppmw action level in 40 CFR 63.7936 is applied to remediation material transferred off-site.

The 10 ppmw VOHAP concentration action level in 40 CFR 63.7936 is not used to determine applicability of emissions control or work practice standards under subpart GGGGG of 40 CFR part 63. Rather, the 10 ppmw VOHAP concentration action level is specified because, at or above that VOHAP concentration, some action may be required by both the transferring facility and receiving facility, but further evaluation is needed to be certain if any action is required. If the VOHAP concentration of the transferred remediation material is less than 10 ppmw, there are no requirements under subpart GGGGG of 40 CFR part 63 regarding the off-site transfer and subsequent management of this material. However, if the VOHAP concentration of the transferred remediation material is 10 ppmw or greater, then there are recordkeeping, notification, and possibly air emission control requirements (depending on how the material is managed at the receiving facility) under subpart GGGGG of 40 CFR part 63 that must be met.

The determination of which air emission control requirements in subpart GGGGG of 40 CFR part 63 apply to, or follow, the transferred remediation material to the receiving facility is based on other action levels in the final rule that are specifically applied to the affected sources regardless of the source location (i.e., the 10 ppmw action level for process vents in 40 CFR 63.7885 and the 500 ppmw action level for remediation material management units in 40 CFR 63.7886). In cases where transferred remediation material, having an average VOHAP concentration of 10 ppmw or greater, is treated or managed at the receiving facility in vented processes that would be affected sources under subpart GGGGG if located at the transferring facility (40 CFR 63.7882(a)(1)), then these processes must comply with the air emission control requirements for process vents in the final rule (40 CFR 63.7885).

In cases where transferred remediation material having an average VOHAP concentration of 500 ppmw or greater is treated or managed at the receiving facility in remediation material management units that would be affected sources under subpart GGGGG (40 CFR 63.7882(a)(2)), these units must comply with the applicable air emission control requirements in the final rule (40 CFR 63.7886). If instead the average VOHAP concentration of the transferred remediation material placed in these remediation material management units at the receiving facility is 10 ppmw or greater but less than 500 ppmw, then the units are not required to meet the air emission control requirements in subpart GGGGG. The only requirement is to document why the transferred remediation material is not subject to the air emission control requirements in subpart GGGGG (i.e., the VOHAP concentration of the material is below the 500 ppmw action level).

The general standards in subpart GGGGG of 40 CFR part 63 for process vents and for remediation material management units provide owners and operators an alternative compliance option for those units that are already using air pollution controls to comply with another subpart under 40 CFR part 61 or 40 CFR part 63. Under this option, your unit is not subject to air emission control requirements in subpart GGGGG if the unit is controlled in compliance with the standards specified in the applicable subpart of 40 CFR part 61 or 40 CFR part 63. This means the unit meets all applicable emissions limitations and work practice standards under the other subpart (e.g., you install and operate the required air emission control devices or have implemented the required work practice to reduce HAP emissions to levels specified by the applicable subpart). This provision only applies if the other subpart actually specifies a standard requiring control of HAP emissions from your affected process vents. It does not apply to any exemption of the affected source from using air pollution controls allowed by the other applicable subpart. This compliance option under subpart GGGGG was included in the proposed rule for both process vents and remediation material management units. We received no adverse public comments on allowing this compliance option.

The general standards in subpart GGGGG of 40 CFR part 63 do not include a comparable compliance option for those affected equipment leak sources associated with a site remediation that are already using air pollution controls to comply with another subpart under 40 CFR part 61 or 40 CFR part 63. There is no reason not to extend the same compliance option that subpart GGGGG allows for process vents and remediation material management units to equipment leak sources. The exclusion of this type of compliance option under the general standards for equipment leaks from the final rule was an oversight on our part. Therefore, the proposed amendments would add to the general standards for equipment leaks in 40 CFR 63.7887 a compliance option for those affected equipment leak sources that are already using air pollution controls or work practices to comply with another subpart under 40 CFR part 61 or 40 CFR part 63. The proposed regulatory language for this option effectively is the same (with minor wording changes appropriate to equipment leak sources) as used in the final rule for process vents and for remediation material management units that are already using air pollution controls to comply with another subpart under 40 CFR part 61 or 40 CFR part 63.

Since promulgation of the final rule, we have been notified that provisions in the Clean Air Act (CAA) providing special consideration for activities located at certain oil and natural gas production field facilities were not incorporated into the Site Remediation NESHAP. These provisions, under section 112(n)(4)(A) of the CAA, have resulted in incorporation of regulatory text in other regulations that often apply to oil and natural gas production field facilities such as the Oil and Natural Gas Production NESHAP. These provisions were not accounted for in the Site Remediation NESHAP proposed on July 30, 2002. In addition, the issue was not raised by commenters on the proposed rule and, as a result, the final rule does not treat emissions at oil and natural gas production fields differently from those at any other location. Since we believe regulations must be consistent with the CAA, we are proposing amendments to the applicability provisions of the Site Remediation NESHAP to further that outcome. Section 112(n)(4)(A) states:

In the Oil and Natural Gas Production NESHAP, 40 CFR part 63 subpart HH, we address the provisions of section 112(n)(4)(A) by limiting the emission points that can be aggregated in the major source determination process at production field facilities. In order to be consistent with both the Oil and Natural Gas Production NESHAP, and section 112 of the CAA, we are proposing amendments to the Site Remediation NESHAP to limit emissions aggregation for major source status determination at production field facilities only, to glycol dehydration units, storage vessels with flash emission potential and site remediation activities. The terms “production field facility,” “glycol dehydration unit,” and “storage vessel with the potential for flash emissions” are all defined terms under the Oil and Natural Gas Production NESHAP (40 CFR 63.761) and will be referenced under the proposed amendments to the Site Remediation NESHAP.

Table 1 to subpart GGGGG of 40 CFR part 63 lists the specific organic chemical compounds, isomers, and mixtures that are HAP for purposes of implementing the requirements of subpart GGGGG. The version of table 1 to subpart GGGGG published in October 2003 inadvertently included a listing for the compound 1,1-dimethyl hydrazine that we stated in the preamble for the final rule should not have been listed in the table (68 FR 58175). The proposed amendments would replace table 1 to subpart GGGGG with the correct version of the table excluding the listing for 1,1-dimethyl hydrazine.

Amendments to the regulatory language throughout 40 CFR part 63, subpart GGGGG, are proposed to correct terminology, typographical, section cross-reference, or grammatical errors. These amendments would not change any of the technical or administrative requirements of the final rule.

Under Executive Order 12866, (58 FR 51735, October 4, 1993) we must determine whether the regulatory action is “significant” and, therefore, subject to OMB review and the requirements of the Executive Order. The Order defines “significant regulatory action” as one that is likely to result in a rule that may:

(1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities;

(2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency;

(3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or

(4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order.”

Pursuant to the terms of Executive Order 12866, OMB has notified EPA that it considers this action a “significant regulatory action” within the meaning of the Executive Order. The EPA submitted this action to OMB for review. Changes made in response to OMB suggestions or recommendations will be documented in the public record.

This action does not impose any new information collection burden. The proposed amendments would result in no changes to the information collection requirements of the existing rule. OMB has previously approved the information collection requirements contained in 40 CFR part 63, subpart GGGGG, under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq., and has assigned OMB control number 2060-0534, EPA ICR number 2062.02. A copy of the OMB approved Information Collection Request (ICR) may be obtained from Susan Auby; Collection Strategies Division; U.S. EPA (2822T); 1200 Pennsylvania Ave., NW.; Washington, DC 20460 or by calling (202) 566-1672.

Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information.

An agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations in 40 CFR are listed in 40 CFR part 9.

The Regulatory Flexibility Act (RFA) generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions.

For purposes of assessing the impacts of today's proposed rule amendments on small entities, small entity is defined as: (1) A small business as defined by the Small Business Administration's (SBA) regulations at 13 CFR 121.201; (2) a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and (3) a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.

After considering the economic impacts of today's proposed rule amendments on small entities, I certify that this action will not have a significant economic impact on a substantial number of small entities. The small entities that may be directly regulated by the proposed rule include small businesses and small governmental jurisdictions. We have determined that there would be little or no impact on any affected small entities because the proposed rule amendments would amend existing regulations to clarify specific provisions and to correct technical omissions and editorial errors. We continue to be interested in the potential impacts of the proposed rule amendments on small entities and welcome comments on issues related to such impacts.

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector. Under section 202 of the UMRA, EPA generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures to State, local, and tribal governments, in the aggregate, or to the private sector, of $100 million or more in any one year. Before promulgating an EPA rule for which a written statement is needed, section 205 of the UMRA generally requires EPA to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective or least burdensome alternative that achieves the objectives of the rule. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows EPA to adopt an alternative other than the least costly, most cost-effective or least burdensome alternative if the Administrator publishes with the final rule an explanation why that alternative was not adopted. Before EPA establishes any regulatory requirements that may significantly or uniquely affect small governments, including tribal governments, it must have developed under section 203 of the UMRA a small government agency plan. The plan must provide for notifying potentially affected small governments, enabling officials of affected small governments to have meaningful and timely input in the development of EPA regulatory proposals with significant Federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements.

Today's proposed rule amendments contain no Federal mandates (under the regulatory provisions of Title II of the UMRA) for State, local, or tribal governments or the private sector. The proposed rule amendments do not contain a Federal mandate that may result in expenditures of $100 million or more for State, local, and tribal governments, in the aggregate, or the private sector in any 1 year. Thus, the proposed rule amendments are not subject to the requirements of section 202 and 205 of the UMRA. In addition, the proposed rule amendments contain no regulatory requirements that might significantly or uniquely affect small governments because the burden is small and the regulation does not unfairly apply to small governments. Therefore, the proposed rule amendments are not subject to the requirements of section 203 of the UMRA.

Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.”

The proposed rule amendments do not have federalism implications. Today's action will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. The proposed rule amendments would amend existing regulations to clarify specific provisions in the existing regulations and to correct technical omissions and editorial errors. Thus, Executive Order 13132 does not apply to this action.

In the spirit of Executive Order 13132, and consistent with EPA policy to promote communications between EPA and State and local governments, EPA specifically solicits comment on the proposed rule amendments from State and local officials.

Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000), requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” The proposed rule amendments do not have tribal implications, as specified in Executive Order 13175. Today's action will not have substantial direct effects on tribal governments, 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. Thus, Executive Order 13175 does not apply to the proposed rule amendments.

Executive Order 13045 (62 FR 19885, April 23, 1997) applies to any rule that: (1) Is determined to be “economically significant” as defined under Executive Order 12866, and (2) concerns an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, the Agency must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency.

The proposed rule is not subject to the Executive Order because it is not economically significant as defined under Executive Order 12866, and because EPA interprets Executive Order 13045 as applying only to those regulatory actions that are based on health or safety risks, such that the analysis required under section 5-501 of the Order has the potential to influence the regulation. Today's action is based on technology performance and not on health or safety risks and therefore is not subject to Executive Order 13045.

Today's action is not a significant energy action: as defined in Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) because it is not likely to have a significant adverse effect on the supply, distribution, or use of energy because it only clarifies our intent and corrects errors in the existing rule. Further, we have concluded that the proposed rule amendments are not likely to have any adverse energy effects.

Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 note) directs us to use voluntary consensus standards in our regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., material specifications, test methods, sampling procedures, business practices) developed or adopted by one or more voluntary consensus bodies. The NTTAA directs us to provide Congress, through OMB, explanations when we decide not use available and applicable voluntary consensus standards.

This action does not involve any new technical standards or the incorporation by reference of existing technical standards. Therefore, the consideration of voluntary consensus standards is not relevant to this action.

For the reasons stated in the preamble, title 40, chapter I, part 63, of the Code of the Federal Regulations is proposed to be amended as follows:

On February 27, 2006, the Department of Transportation (DOT or Department) issued a notice of proposed rulemaking (NPRM) that proposed to amend the Department's Americans with Disabilities Act (ADA) rule and related regulations (71 FR 9761). The proposed amendments concerned a variety of subjects, including rail station platform accessibility and ADA paratransit system requirements. The NPRM also sought comment on several upcoming issues of interest concerning surface transportation accessibility. The comment closing dates were April 28 for the proposed amendments to the ADA and related rules and May 28 for the other issues on which the Department sought comment.

On April 7, 2006, Amtrak, supported by the Association of American Railroads, requested an extension of the comment period through July 28, 2006, citing concerns about the effects of proposed amendments concerning rail station platform accessibility on its statutory obligation to make its stations accessible by 2010.

The Department agrees that an extension of the comment period would be useful to permit Amtrak additional time to assess its situation with respect to rail station accessibility, as it may be affected by the proposed rule. In addition, such an extension will give other parties additional time to consider the issues the NPRM raises and provide thoughtful comments to the Department. Accordingly, the Department finds that good cause exists to extend the comment period on the proposed rule from April 28, 2006, to July 28, 2006. This extension applies to all parts of the NPRM.

Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq. ) direct the Secretary of Commerce (Secretary) to allow, upon request, the incidental, but not intentional taking of small numbers of marine mammals by U.S. citizens who engage in a specified activity (other than commercial fishing) within a specified geographical region. The Secretary will allow an incidental take if certain findings are made and either regulations are issued or, if the taking is limited to harassment, notice of a proposed authorization is provided to the public for review.

Authorization for incidental takings may be granted if NMFS finds that the taking will have no more than a negligible impact on the species or stock(s) and will not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses. The permissible methods of taking and requirements pertaining to the mitigation, monitoring and reporting of such taking shall be prescribed.

NMFS has defined “negligible impact” in 50 CFR 216.103 as:

Except for certain categories of activities not pertinent here, the MMPA defines “harassment” as:

On May 10, 2002, NMFS received an application from the MBNMS requesting a 1-year Incidental Harassment Authorization (IHA) under section 101(a)(5)(D) and, subsequently, the issuance of regulations governing authorizations for a 5-year period under section 101(a)(5)(A) of the MMPA for the potential harassment of California sea lions ( Zalophus californianus ) and Pacific harbor seals ( Phoca vitulina ) incidental to coastal fireworks displays conducted at MBNMS under permits issued by MBNMS to commercial companies. On July 4, 2005, NMFS issued an IHA to MBNMS (70 FR 39235, July 7, 2005) and that IHA expires on July 3, 2006.

The MBNMS adjoins 276 mi (444 km) or 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 (such as Independence Day and municipal anniversaries), and to foster public use and enjoyment of the marine environment. The marine venue for this activity is the preferred setting for fireworks in central California 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. ZZAuthorization of professional firework displays has required a steady refinement of policies and procedures toward this activity as more is learned about its impacts to the environment.

Since 1993, the MBNMS, a component of NOAA, has processed requests for the professional display of fireworks that affect the Sanctuary. The MBNMS has determined that debris fallout (spent pyrotechnic materials) from fireworks events may constitute a discharge into the Sanctuary and thus a violate Sanctuary regulations, unless a ZZ authorization is issued by the Sanctuary. 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 in (5 cm) to 12 in (30 cm) in diameter and filled with incendiary materials), low-level comet and multi-shot devices similar to over-the-counter fireworks such as roman candles, and set piece displays that are mostly static in nature and are mounted on the ground.

Aerial shells are launched from tubes (called mortars), using black powder charges, to altitudes of 200 to 1000 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 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 (stars) that emit prescribed colors when ignited. Some of the chemicals commonly used in the manufacturing of pyrotechnic devices are 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. 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 is burning that eventually ignites the burst charge within the shell at peak altitude. The burst charge detonates, igniting and scattering the stars, which may, in turn, possess 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 1000 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 announce the beginning and end of the show and produce a loud percussive audible effect. These shells are typically two to three inches (five to seven centimeters) 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, and when ignited, the stars exit the tube in succession producing a fountain effect of single or multi-colored light as the stars incinerate through 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 simply 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. Some 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. It may have some moving parts, but typically does 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 ofshells, the pace of the show, the length of the show, the acoustic qualities of the display site, and even the weather and time of day. The vast majority (97 percent) of fireworks displays ZZ authorized in the Sanctuary between 1993 and 2005 were aerial displays that usually included simultaneous low-level displays. An average large display will last 20 minutes and include 700 aerial shells and 750 low-level effects. An average smaller display lasts approximately seven minutes and includes 300 aerial shells and 550 low-level effects. There seems to be a declining trend in the total number of shells used in aerial displays, 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 has issued 67 permits for professional fireworks displays since 1993 (five in 2005) and 5 applications are currently being processed (as of March 2006). Four fireworks display applications have been directed to areas outside the Sanctuary. However, the MBNMS staff projects that as many as 20 coastal displays per year may be conducted in, or adjacent to, MBNMS boundaries in the future. The number of displays will be limited to not more than 20 events per year in four specific areas along 276 mi (444 km) of coastline. Fireworks displays will not exceed 30 minutes (with the exception of up to two displays per year, not to exceed 1 hour) in duration and will occur with an average frequency of less than or equal to once every two months within each of the four prescribed display areas.

Initially, the MBNMS believed that it could minimize potential light, sound, and debris impacts to the Sanctuary and marine mammals through permit conditions to limit the location, timing, and composition of professional fireworks events affecting the MBNMS. However, due to observations over the past several years and through consultation with NMFS' Southwest Region, it appears that some fireworks displays resulted in incidental take of marine mammals by Level B harassment. NMFS believes that the nature of the take will be the short-term flushing and evacuation of non-breeding haulout sites by California sea lions and Pacific harbor seals.

A more detailed description of the fireworks displays permitted by MBNMS may be found in the application or in MBNMS' 2001 Assessment of Pyrotechnic Displays and Impacts Within the MBNMS, 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 - beaches, bluff tops, piers, offshore barges, and golf course sand traps and tee boxes. In the past, authorized displays have been confined to eight general locations in the Sanctuary. However, future permitted fireworks displays will 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 will be prohibited. These sites were approved for fireworks events based on their proximity to urban areas and pre-existent 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 at Half Moon Bay, the Santa Cruz/Soquel area, the northeastern Monterey Peninsula, and Cambria (Santa Rosa Creek)(see Map A in the application). The number of displays will 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.

Site Description: This site has been used annually for a medium-sized Independence Day fireworks display on July 4, which lasts about 20 minutes. 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 marine venue adjacent to Pillar Point Harbor is preferred for optimal public access and to avoid the fire hazard associated with terrestrial display sites. The fireworks display occurs at the height of the dry season in central California, when area vegetation is particularly prone to ignition from sparks or embers.

Human Use Patterns: The harbor immediately adjacent to the impact area is home to a major commercial fishing fleet that operates at all times of the day and night throughout the year. 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 15 flights per day. On clear sunny weekends, the airport may accommodate as many as 50 flights in a single day. Beachgoers and water sport 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. Periodically, surfing contests are held 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.

Marine Mammals at Fireworks Sites: A considerable concentration of harbor seals are present to the north around Pillar Point and on the coast to the south of the launch site. Sea otters are not concentrated in the impact area, though some individuals may be present. It is possible that individual elephant seals may enter the area from breeding sites at Ano Nuevo Island and the Farallon Islands, but breeding occurs in the winter and displays in Half Moon Bay are limited to summer. Gray whales typically migrate west of the reefs extending south from Pillar Point.

Site Description: Three separate fireworks display sites (Santa Cruz, Capitolas, and Aptos) are located within the Santa Cruz/Soquel area. The Santa Cruz launch site has been used annually for City 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 Capitola launch site has been used only once since 1993 for a 50-year City anniversary fireworks display on May 23, 1999. This display was the largest volume fireworks display conducted in the MBNMS to date, incorporating 1700 aerial shells and 1800 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 Aptos site has been used annually for a large fundraiser for Aptos area schools in October. The launch site is on the Aptos Pier and part of a grounded cement barge at Seacliff State Beach. The aerial shells are aimed above and to the south of the pier. The large aerial show lasts for approximately 20 minutes.

Human Use Patterns: The harbor immediately adjacent to the Santa Cruz impact area is home to a commercial fishing fleet that operates at all times of the day throughout the year. The harbor primarily 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 anchor within the acute impact area to view the fireworks. Vessels criss-cross through the waters south of the launch site to take up position. In addition, U. S. Coast Guard and harbor patrol vessels motor through the impact area to maintain a safety zone around the launch site.

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 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. Vessels criss-cross through the waters seaward of the cement barge to take up position. In addition, U. S. Coast Guard and State Park Lifeguard vessels motor through the impact area to maintain a safety zone around the launch site.

Marine Mammals at the Fireworks Sites: California sea lions routinely use the Santa Cruz Municipal Pier as a haulout and resting site. Gray whales typically migrate along a southerly course, west of Point Santa Cruz and away from the pier. Sea otters are moderately concentrated in the impact areas near the Capitola Municipal Pier and Aptos Pier, primarily in and around the nearshore kelp forests. At the seaward end of the Aptos Pier is a 400-foot (122-meter) grounded cement barge. The barge was set in position as an extension of the pier, but has since been secured against public access. The exposed interior decks of the barge have created convenient haulout surfaces for harbor seals. In a 2000 survey, the MBNMS recorded as many as 45 harbor seals hauled out on the barge in the month of October.

Site Description: Two separate fireworks display sites (City of Monterey and Pacific Grove) are located within the Monterey Peninsula Area. Each Independence Day, the City of Monterey launches approximately 750 shells and an equal number of low-level effects from a barge anchored approximately 1000 ft (305 m) east of Municipal Wharf II and 1000 feet (305 meter) north of Del Monte Beach. The aerial shells are aimed above and to the northeast. The City's display lasts approximately 20 minutes and is accompanied by music broadcasted from speakers on Wharf II. The marine venue adjacent to Monterey Harbor is preferred for optimal public access and to avoid the fire hazard associated with terrestrial display sites. The fireworks display occurs at the height of the dry season in central California, when area vegetation is particularly prone to ignition from sparks or embers. Since 1999, a Monterey New Year's festival has used the City's launch barge for an annual fireworks display. The medium-size aerial display lasts approximately 8 minutes. In addition, three private displays (1993, 1998, and 2000) have been authorized from a launch site on Del Monte Beach. The 1993 display was an aerial display. Subsequent displays have been low-level displays, lasting approximately 7 minutes. Map D shows the location of and habitats found within the Monterey Fireworks Launch Sites.

The Pacific Grove site has been used annually for a “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 95 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 lasts approximately twenty 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 marine venue is preferred for optimal public access and to avoid the fire hazard associated with terrestrial display sites. The fireworks display occurs at the height of the dry season in central California, when area vegetation is particularly prone to ignition from sparks or embers.

Human Use Patterns: The Monterey fireworks impact area lies directly under the approach/departure flight path for Monterey Peninsula Airport (MRY) 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 in the area during day and night hours from the adjacent harbor. A 30-station mooring field lies within the acute impact area between the launch barge and Municipal Wharf II. The moorings are 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 utilized by thousands of people each week for boating, kayaking, scuba diving, fishing, swimming, 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. Vessels criss-cross through the waters south of the launch site to take up position. In addition, U. S. Coast Guard and harbor patrol vessels motor through the impact area to maintain a safety zone around the launch site.

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 by boaters, recreational fishermen, swimmers, surfers, divers, beachgoers, tidepoolers, and others. 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. On a clear summer day, 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 U. S. Coast Guard vessel motors through the impact area to maintain a safety zone seaward of the launch site.

Marine Mammals at the Fireworks Sites: The largest concentration of wildlife near the Monterey impact area are California sea lions and marine birds resting at the Monterey breakwater approximately 700 yards (640 meters) northwest of the center of the impact area. Several sea otters are present within Monterey Harbor and the acute impact area during the time of the fireworks display. Otters outside the harbor are most concentrated to the northwest of the Monterey breakwater; however, otters routinely forage and loiter within the acute impact area and along the shoreline to the north.

Sea otters and pups routinely forage and loiter within the Pacific Grove acute impact area in moderate numbers. Harbor seals routinely use offshore rocks and wash rocks for haulout and also forage in the area.

Site Description: The site has been used annually for a small Independence Day fireworks display on July 4, which lasts approximately 20 minutes. 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 marine venue is preferred for optimal public access and to avoid the fire hazard associated with terrestrial display sites. The fireworks display occurs at the height of the dry season in central California, when area vegetation is particularly prone to ignition from sparks or embers.

Human Use Patterns: 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.

Marine Mammals at the Fireworks Site: The impact area includes low concentrations of harbor seals. Sea otters and 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 July is not peak gray whale migration period.

Twenty-six species of marine mammals may be found in the Monterey Bay area (see Table 1 in the MBNMS application). Only six of these species, however, are likely to be present in the acute impact area (the area where sound, light, and debris effects have direct impacts on marine organisms and habitats) during a fireworks display. These species include the California sea lion, Pacific harbor seal, southern sea otter ( Enhydra lutris neries ) bottlenose dolphin ( Tursiops truncatus ), harbor porpoise ( Phocoena phocoena ), and the California gray whale ( Eschrichtius robustus ). The northern elephant seal ( Mirounga angustirostris ) is rarely seen in the area.

Though the three abovementioned cetaceans (bottlenose dolphins, harbor porpoises, and California Gray whales) 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 strandings or injured/dead animals discovered after any display. Since sound does not transmit well between air and water, 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 quite 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. 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 because the USFWS is the agency with jurisdiction over sea otters. The USFWS concluded in a biological opinion that take of sea otters is not likely.

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 Pacific harbor seal.

Additional information regarding these species can be found in Folkens' Guide to the Marine Mammals of the World (2002) and in the NMFS stock assessments on the NMFS website: http://www.nmfs.noaa.gov/pr/PR2/Stock_Assessment_Program/individual_sars.html . 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 (Caretta et al. , 2004). In the United States, after pupping in late May to June, they breed during July, primarily in the Channel Islands of California. Most individuals of this species breed 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 Ano 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 1900's, the California sea lion population has increased and is now robust and growing at a current rate of 5.4 to 6.1 percent per year (based on pup counts) with an estimated “minimum” population (U.S. west coast) of 138,881 animals. The actual population level may be as high as 237,000 to 244,000 animals. The population is not listed as “endangered” or “threatened” under the ESA, nor is this species a “depleted” or a “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. Ano 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).

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 (Caretta et al. , 2004). In California, approximately 400-500 harbor seal haulout sites are widely distributed along the mainland and on offshore islands (Caretta et al. , 2004).

The harbor seal population in California is healthy and growing at a current rate of 3.5 percent per year with an estimated “minimum” population (California) of 25,720 animals (Caretta et al. , 2004). The California population is estimated at 27,863 animals. The population is not listed as “endangered” or “threatened” under the ESA; nor is this species 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 Ano 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, and 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 they haul out to breed, give birth to pups, and molt (MBNMS FEIS, 1992).

The primary causes of disturbance are sound effects and light flashes from exploding fireworks. Pyrotechnic devices that operate at higher altitudes are more likely to have a larger acute impact area (such as aerial shells), while ground and low-level devices have more confined effects. Acute impact area is defined as the area where sound, light, and debris effects 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 1000 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 to 2 miles (1.6-3.2 km) from the center of the detonation point depending on the size of the shell, height of the explosions, type of 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 (described earlier) and bursting charges at altitude. People and wildlife on the ground and on the surface of the water can feel the sound waves and the accompanying rapid shift of ambient atmospheric pressure. This pressure wave has been known to activate car alarms that detect vibration. Sounds attenuate farther from high altitude shells than low altitude shells since they are not as easily masked by buildings and landforms, allowing the sound envelope to ensonify more surface area on the ground and water. 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 like aerial shells, but are often used in large numbers in concert with one another and in rapid succession, producing very 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, such as crackling, popping, or 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 mile (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 to wildlife noted in past observation reports by Sanctuary staff is the disturbance of marine mammals and seabirds 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 and marine birds in the vicinity of the impact area (within 0.45 mi (0.72 km) of the launch site).

In 2001, the MBNMS and USFWS monitored the July 4 City of Monterey fireworks display with the most thorough effort to date. 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 decibels. In the Vandenburg Airforce Base (VAFB) studies discussed below, not all harbor seals left a haul-out during a launch unless the Sound Exposure Level was 100 decibels or above (which, in the case of the VAFB launch locations and durations, is equivalent to an SPL of 89 to 95 decibels), and only short-term effects were detected. SEL is an energy metric that takes duration of the sound into account, and since the rocket sounds last more than one second, SEL is higher than SPL in this situation. The typical decibel levels for the display ranged from 70 to 78 decibels (SPL), and no salute effects were used in the display. An ambient noise level of 58 decibels was recorded at the survey site 30 minutes following the conclusion of the fireworks. MBNMS' proposed regulations for take of marine mammals include an acoustic monitoring requirement to measure sound levels at the breakwater, where sea lions typically haul out, during the 2006 City of Monterey fourth of July celebration, which will include aerial salutes.

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 (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) note 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.

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. Based on current information, NMFS precautionarily sets impulsive sounds equal to or greater than 190 dB re 1 microPa (rms) as the exposure thresholds for onset of Level A harassment (injury) for pinnipeds, under water (NMFS, 2000). If measured by an inanimate receiver 190 dB re 1 microPa (rms) would equal an A-weighted sound intensity level of 128 dB re 20 microPa, which are the units used for airborne sound. However, environmental conditions and the ear of the receiving animal may alter how the sound is received in air versus water, and precise exposure thresholds for airborne sounds have not been determined.

Some factors that contribute to onset of PTS are as follows: (1) Exposure to single very intense noises, (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. 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 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 10 harbor seals prior to, and after, the launches of 3 Titan IV rockets (one of the loudest launch vehicles at the south VAFB haul-out site). 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, which ranged from an A-weighted SPL of 111.4 to 111.2 dB and an A-weighted SEL from 96.6 to 103.6 (SRS Technologies, 2001).

In some display locations, marine mammals and other wildlife 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 (noise, boating, kayaking, fishing, diving, swimming, surfing, picnicking, beach combing, tidepooling, etc.), and as a fireworks presentation progresses, most marine mammals and birds 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 U.S. Coast Guard and/or other government agencies often patrol throughout the waters of the impact area to keep vessels a safe distance from the launch site.

Non-nesting marine birds (especially pelicans, cormorants, and gulls) are among the first wildlife to evacuate the area at the start of fireworks displays. Past observations by the MBNMS indicate that virtually all birds within the acute impact area depart in a burst of flight within one minute of the start of a fireworks display, including low-level displays. However, staff have also repeatedly observed that Brandt's cormorants nesting at the Monterey Breakwater remain on their nests (over 200 nests) throughout the large July 4th aerial display that is launched each year from a barge approximately 0.5 mi (.8 km) away. Most non-nesting marine birds on the breakwater evacuate the area until the conclusion of the display. Their numbers return to normal levels by the following morning. During a 1998 display in Monterey, MBNMS staff observed a marine bird swim within 210 ft (64 m) of the launch site during the fireworks display. The bird remained on the water as the pyrotechnic effects were ignited aboard the barge and made no effort to swim away from the launch site. No injuries, fatalities, or negative impacts to marine birds have been detected during several years of monitoring and observations by the MBNMS.

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 to nearby human activities. For both pinniped species, pups and juveniles are more likely to be harassed when exposed to disturbance than older animals.

In general, marine wildlife depart or avoid surface waters and haul-out sites within a 1000-yard radius of the center of the impact area during fireworks displays. Even short, low-level displays can cause a flight response in wildlife within the acute impact area.

NMFS and MBNMS found no peer-reviewed literature that specifically investigates the response of California sea lions and harbor seals to commercial fireworks displays. Similarly, general harassment or injury thresholds for exposure to airborne sounds have not been set. However, extensive studies have been conducted at VAFB to determine responses by California 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 ongoing scientific research program has been conducted since 1997 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, when sonic boom prediction models projected that a sonic boom would hit one of the northern Channel Islands, pinniped populations were studied at identified haul-out sites in order to determine the impact of the boom on pinniped behavior.

The response of harbor seals to rocket launch noise at VAFB depended on the intensity of the noise (dependent on the size of the vehicle and its proximity) and the age of the seal (SRS Technologies 2001). Not surprisingly, 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 level up to approximately 100 decibels (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 20 seals tagged at VAFB, 8 (40 percent) were exposed to at least 1 launch disturbance but continued to return to the same haul-out site. Three of those seals were exposed to 2 or more launch disturbances. Most of the seals exposed to launch noise (n=6, 75 percent) 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 is estimated to be 1,040 animals and has been 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 on 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 have caused any long-term effects to the population.

The conclusions of the five-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.

Past monitoring by the MBNMS has identified at most only a short-term behavioral disturbance of animals by fireworks displays, with the primary causes of disturbance being sound effects and light flashes from exploding fireworks. Additionally, the VAFB study of the effects of rocket-launch noise, which is more intense than fireworks noise, on California sea lions and Pacific harbor seals indicated only short-term behavioral impacts. With the mitigation measures proposed below, any takes will be limited to the temporary incidental harassment of California sea lions and Pacific harbor seals due to evacuation of usual and accustomed haul-out sites for as little as 15 minutes and as much as 15 hours following any fireworks event. Most animals depart affected haul-out areas at the beginning of the display and return to previous levels of abundance within 4 to 15 hours following the event. This information is based on observations made by Sanctuary staff over an 8-year period (1993-2001) and a quantitative survey made in 2001. Empirical observations have focused on impacts to water quality and selected marine mammals and birds in the vicinity of the displays. No observations were made in upland areas (beyond the jurisdiction of the Sanctuary) due to limited staff resources.

Sea lions in general are more tolerant to noise and visual disturbances than harbor seals. In addition, pups and juveniles are more likely to be harassed when exposed to disturbance than the 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 2001 Monterey survey (discussed earlier), 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. MBNMS staff have been opportunistically monitoring sea lions at the City of Monterey's Fouth of July celebration for more than 10 years. Following is a summary of their general observations: sea lions begin leaving the breakwater as soon as the fireworks begin, clear completely off after an aerial salute or quick succession of loud effects, usually begin returning within a few hours of the end of the display, and 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 haulout area is approximately 2,100 ft (640 m)(horizontal distance) 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. 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.

MBNMS staff monitored harbor seal reactions to a coastal fireworks display at Aptos in October 2000 and did not see any harbor seals during and immediately after the event. Based on the reaction of the birds and the noise of the display, observers believed that the seals evacuated the area on and around the cement ship. Harbor seals were sighted hauled out on the ship and in the water the following morning.

A private environmental consultant has monitored the Aptos fireworks display each October from 2001 through 2005 (per California Coastal Commission permit conditions) and concluded that harbor seal activity returns 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.

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, which usually promotes efficient incineration. 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. A 1992 Florida 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 in 1992, presented the results of a 10-year study of the impacts of fireworks decomposition products (chemical residue) upon an aquatic environment. Researchers studied a small lake in Florida subjected to two thousand fireworks shows over a ten-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.” The MBNMS staff spoke with one of the authors of the report who hypothesized that had the same study been conducted in California, the elevated metal concentrations in the lake would not have even 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, the MBNMS believes 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 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 household 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 thin 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-yard (183-meter) radius of the launch site, since they do not attain altitudes sufficient for significant lateral transport by winds. Though typically within 300 ft (91 m), the acute impact area for set piece devices 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 and burning others. Some pieces are immediately incinerated, while others burn up or partially burn on their way to the ground. Many shell casings simply 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 probably present a negligible potential for harm. Whether such duds pose a threat to wildlife (such as curious sea otters) once adrift is unknown. After soaking in the sea for a period of time, the likelihood of detonation rapidly declines. Even curious otters are unlikely to 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 permits (discussed later) require the permittee 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 have 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 wading; plastic wading, 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 the permittee to 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.

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 others may have as many as 40 boats 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 kts (15 km/hr)) due to the other vessels present and limited visibility (i.e., most fireworks displays occur at night). The U.S. Coast Guard 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 such as emergency sirens, vehicle noise, boating, kayaking, swimming, tidepooling, crowd noise, etc. Due to the gradual nature of the increase in boat traffic, it's 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 the human environment, including marine mammals.

Because of mitigation measures proposed, which are outlined below, NMFS preliminarily finds that only Level B harassment may occur incidental to authorized coastal fireworks displays and that these events will result in no more than a negligible impact on marine mammal species or their habitats. NMFS also preliminarily finds that no impact on the availability of the species or stocks for subsistence uses will occur because there is no subsistence harvest of marine mammals in California.

The MBNMS has worked with the USFWS and NMFS Southwest Region for over five years to craft a set of Sanctuary fireworks authorization guidelines (available at: http://www.nmfs.noaa.gov/pr/permits/incidental.htm ) designed to minimize fireworks impacts on the marine environment, as well as outline the locations, frequency, and conditions under which the MBNMS will ZZ authorize marine fireworks displays.

The guidelines include five broad approaches for managing fireworks displays and will be implemented by the MBNMS:

(1) Establish a sanctuary-wide seasonal prohibition to safeguard reproductive periods: MBNMS has established a Sanctuary-wide seasonal prohibition to safeguard pinniped reproductive periods. Fireworks events will not be authorized between March 1 and June 30 of any year, since this period is the primary reproductive season for many marine species.

(2) Establish four conditional display areas and prohibit displays along the remaining 95 percent of Sanctuary coastal areas: Traditional display areas are located adjacent to urban centers where wildlife has often acclimated to human disturbances, such as low-flying aircraft, emergency vehicles, unleashed pets, beach combing, recreational and commercial fishing, surfing, swimming, boating, and personal watercraft operations. Remote areas and areas where professional fireworks have not traditionally been conducted will not be considered for fireworks approval. Future permitted fireworks displays will be confined to four prescribed areas of the Sanctuary while prohibiting displays along the remaining 95 percent of Sanctuary coastal areas. The conditional display areas (described earlier in detail) are located at Half Moon Bay, the Santa Cruz/Soquel area, the northeastern Monterey Peninsula, and Cambria (Santa Rosa Creek).

(3) Create a per-annum limit on the number of displays allowed in each display area: If properly managed, a limited number of fireworks displays conducted in areas already heavily impacted by human activity can occur with sufficient safeguards to prevent any long-term or chronic impacts upon local natural resources. There is a per-annum limit of 20 displays along the entire Sanctuary coastline in order to prevent cumulative negative environmental effects from fireworks proliferation. Additionally, displays will be authorized at a frequency equal to or less than 1 every two months in each area and an equal number of private and public displays will be considered for authorization within each display area.

(4) Retain permitting requirements and general and special restrictions for each event: Fireworks displays will not exceed 30 minutes with the exception of two longer displays per year that will not exceed 1 hour. The Sanctuary will continue to assess displays on a case-by-case basis, using specially developed terms and conditions to address concerns unique to fireworks displays (e.g., restricting the number of aerial “salute” effects used as well as requiring a “ramp-up”, wherein “salutes” are not allowed in the first 5 minutes of the display; requiring the removal of plastic and aluminum labels and wrappings; and requiring post-show reporting and cleanup). Such terms and conditions have evolved over 12 years, as the Sanctuary has sought to improve its understanding of the potential impacts that fireworks displays have upon marine wildlife and the environment. The MBNMS will implement general and special restrictions unique to each fireworks event as necessary.

(5) Institute a 5-year permit system for annual displays: The Sanctuary intends to institute a 5-year permit system for fireworks displays that occur annually at fixed locations in a consistent manner, such as municipal Independence Day shows.

The MBNMS fireworks guidelines are designed to prevent an incremental proliferation of fireworks displays and disturbance throughout the Sanctuary and minimize area of impact by confining displays to primary traditional use areas. They also effectively remove fireworks impacts from 95 percent of the Sanctuary's coastal areas, place an annual quota and multiple permit conditions on the displays authorized within the remaining 5 percent of the coast, and impose a sanctuary-wide seasonal prohibition on all fireworks displays. The guidelines were developed in order to assure that protected species and habitats are not jeopardized by fireworks activities. They have been well received by local fireworks sponsors who have pledged their cooperation in protecting Sanctuary resources. The MBNMS Fireworks Guidelines are available at the NMFS website at: http://www.nmfs.noaa.gov/pr/permits/incidental.htm .

The MBNMS has monitored commercial fireworks displays for potential impacts to marine life and habitats for 12 years. 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 (private display), October 2000 (private display), July 2001, and July 2002. Documented field observations have also been made at Aptos each October from 2000 to 2005. The MBNMS staff have observed additional displays at Monterey, Pacific Grove, Capitola, and Santa Cruz, but those observations were primarily for permit compliance purposes, and written assessments of environmental impacts were not generated. 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.

Of all the past authorized fireworks display sites within the Sanctuary, the City of Monterey site has received the highest level of Sanctuary monitoring effort. The City of Monterey has hosted a marine fireworks display each July 4th since 1988 (5 years prior to designation of the MBNMS). The display is the longest running and largest annual commercial fireworks display within the Sanctuary. The Monterey breakwater (approximately one half statute mile from the pyrotechnic launch site) was constructed in the 1930s and, along with other natural rock formations, has been a regular haul-out site for California sea lions and harbor seals for many decades. For this reason, the Monterey site has been studied and surveyed by government and academic researchers for over 20 years. Consequently, the Monterey site has the best background data available for assessing status and trends of key marine mammal populations relative to annual fireworks displays. Therefore, the MBNMS proposes that Monterey be monitored as necessary to assess how local California sea lion and harbor seal distribution and abundance are affected by an annual fireworks display.

The Sanctuary proposes conducting a visual census of the Monterey breakwater and Harbor Rocks on July 4-5, either in 2006 or 2007, to update annual abundance, demographic response patterns, and departure and return rates for California sea lions and harbor seals relative to the July 4 fireworks display. Data will be collected by an observer aboard a kayak or small boat and from ground stations (where appropriate). The observer will use binoculars, counters, and data sheets to census animals. The pre and post fireworks census data will be analyzed to identify any significant temporal changes in abundance and distribution that might be attributed to impacts from the annual fireworks display. The data will also be added to past research statistics on the abundance and distribution of stocks at Monterey Harbor.

It should be noted, however, that annual population trends at any given pinniped haul-out site can be influenced by a myriad of environmental and biological factors, ranging from predation upon pups at distant breeding colonies to fluctuating prey stocks due to El Nino events. These many variables make it difficult to measure and differentiate the potential impact of a single stimulus on long-term population trends.

The Sanctuary also proposes to conduct one-time acoustic monitoring at the 2006 or 2007 City of Monterey Fourth of July fireworks display in conjunction with the behavioral monitoring described above. The procedures for this monitoring will be outlined and described in the preamble to the final rule, the regulations, and subsequent LOAs.

In addition to the comprehensive behavioral monitoring to be conducted at the Monterey Bay Breakwater in 2006, MBNMS will require its applicants to conduct a pre-event census of local marine mammal populations within the fireworks impact area. Each applicant will also be required to conduct post-event monitoring in the acute fireworks impact area to record injured or dead marine mammals brown pelicans, and other wildlife.

MBNMS must submit a draft annual monitoring report to NMFS within 60 days after the conclusion of each calendar year. MBNMS must submit a final annual monitoring report to the NMFS within 30 days after receiving comments from NMFS on the draft report. If no comments are received from NMFS, the draft report will be considered to be the final report. In addition, the MBNMS will continue to incorporate updated census data from government and academic surveys into its analysis and will make its information available to other marine mammal researchers upon request. Lastly, MBNMS must submit a draft comprehensive monitoring report to NMFS 120 days prior to the expiration of the regulations if renewal is requested, or 120 days after the expiration of the regulations, if renewal is not requested. MBNMS must submit the final comprehensive monitoring report to NMFS within 30 days after receiving comments from NMFS on the draft comprehensive monitoring report. Again, if no comments are received from NMFS, the draft report will be considered to be the final report.

As discussed above, the two marine mammal species NMFS believes likely to be taken by Level B harassment incidental to fireworks displays authorized within the Sanctuary are the California sea lion ( Zalophus californianus ) and the Pacific harbor seal ( Phoca vitulina richardsi ), due to the temporary evacuation of usual and accustomed haul-out sites. Both of these species are protected under the MMPA, and neither is listed under the ESA. Numbers of animals that may be taken by Level B harassment are expected to vary due to factors such as tidal state, seasonality, shifting prey stocks, climatic phenomenon (such as El Nino events), and the number, timing, and location of future displays. The estimated take of sea lions and harbor seals was determined by using a synthesis of information, including data gathered by MBNMS biologists at the specific display sites, results of independent surveys conducted in the MBNMS, and population estimates from surveys covering larger geographic areas. More detailed information regarding the estimates of take of sea lions and harbor seals may be found in the application at: http://www.nmfs.noaa.gov/pr/permits/incidental.htm .

Stage structure of California sea lions within the Sanctuary varies by location, but generally, the majority are adult and sub-adult males. Weise (2000) reported on the stage structure of California sea lions at two historic fireworks display areas within the MBNMS, and speculated that juveniles may haul out at the Monterey jetty in large numbers due to a need for a more protected haul-out location. He also reported that most animals on Ano Nuevo Island appeared to be adult males and suggested that the stage structure may vary between mainland haul-out sites and offshore islands and rocks. At all four designated display sites combined, twenty fireworks events per year could disturb an average total of 2,630 California sea lions, with the maximum being 6,170 animals out of a total estimated population of 237,000-244,000. These numbers are small relative to the population size (1.1-2.6%).

For harbor seals, an average of 302 and a maximum of 1,065 harbor out of a total estimated population of 27,836 could be disturbed within the Sanctuary as a result of twenty fireworks events per year at all four designated display sites combined. These numbers are small relative to the population size (1.1-3.8%). Nicholson (2000) studied the stage structure of harbor seals on the northeast Monterey Peninsula (an area with the largest single concentration of animals within the Sanctuary) for two years. For the final spring season of the study, survey numbers equate to a stage structure comprising 38 percent adult females, 15 percent adult males, 34 percent sub-adults, and 13 percent yearlings or juveniles.

With the incorporation of mitigation measures proposed later in this document, the MBNMS expects that only Level B incidental harassment may occur associated with the proposed permitted coastal fireworks displays, and that these events will result in no detectable impact on marine mammal species or stocks or on their habitats.

Impacts on marine mammal habitat are part of the consideration in making a finding of negligible impact on the species and stocks of marine mammals. Habitat includes, but is not necessarily limited to, rookeries, mating grounds, feeding areas, and areas of similar significance. The amount of debris and chemical residue resulting from fireworks displays authorized within the MBNMS is determined by the size and contents of the different fireworks, as well as the wind conditions, weather, and other local variations. Implementation of the MBNMS Fireworks Guidelines, which require that permittees clean up the affected area after each fireworks display, will be required by the LOAs and Sanctuary Authorizations. No evidence of water quality deterioration has been found in relation to prior MBNMS fireworks displays and this document discusses the 1992 Walt Disney report, which found that environmental impacts from fireworks decomposition products typically will be negligible in locations that conduct fireworks displays infrequently. Because of the aforementioned mitigation measure and report, NMFS does not expect the debris and residue resulting from authorized fireworks displays to significantly impact marine mammals or marine mammal habitat in the MBNMS.

There are no subsistence uses for Pacific harbor seals in California waters, and thus, there are no anticipated effects on subsistence needs.

As mentioned earlier, the Steller sea lion and several species of federally listed cetaceans may be present at MBNMS at different times of the year and could potentially swim through the fireworks impact area during a display. In a 2001 consultation with MBNMS, the Southwest Region, NMFS, concluded that this action is not likely to adversely affect federally listed species under NMFS' jurisdiction. There is no designated critical habitat in the area. This action will not have effects beyond those analyzed in that consultation.

The USFWS is responsible for regulating the take of the southern sea otter, the brown pelican, and the western snowy plover. The MBNMS consulted with the USFWS pursuant to section 7 of the ESA regarding impacts to these species. 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 USFWS found that an incidental take of brown pelicans was possible and issued an incidental take statement containing terms and conditions to protect the species. The USFWS concluded that the authorization of fireworks events, as proposed, is not likely to jeopardize the continued existence of the western snowy plover or destroy or adversely modify critical habitat of the species.

NOAA prepared a Final Environmental Impact Statement and Master Plan for the MBNMS in June 1992; however, this document did not address the authorization of fireworks on the Sanctuary. In 2006, MBNMS and NMFS jointly prepared a draft Environmental Assessment (EA) on the Issuance of Regulations Authorizing Incidental Take of Marine Mammals and Issuance of National Marine Sanctuary Authorizations for Coastal Commercial Fireworks Displays within the Monterey Bay National Marine Sanctuary. The draft EA will be made available for public comment concurrently with this proposed rule (see ADDRESSES ).

NMFS has preliminarily determined that the fireworks displays, as described in this document and in the application for regulations and subsequent LOAs, will result in no more than Level B harassment of small numbers of California sea lions and harbor seals. The effects of coastal fireworks displays will be limited to short term and localized changes in behavior, including temporarily vacating haulouts to avoid the sight and sound of commercial fireworks. NMFS has also preliminarily determined that any takes will have no more than a negligible impact on the affected species and stocks. No take by injury and/or death is anticipated, and harassment takes will be at the lowest level practicable due to incorporation of the mitigation measures mentioned previously in this document. Additionally, the MBNMS fireworks displays will not have an unmitigable adverse impact on the availability of marine mammal stocks for subsistence use, as there are no subsistence uses for California sea lions or Pacific harbor seals in California waters.

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

Pursuant to the procedures established to implement section 6 of E.O. 12866, the Office of Management and Budget has determined that this proposed rule is not significant.

Pursuant to the Regulatory Flexibility Act, the Chief Counsel for Regulation of the Department of Commerce has 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. The Regulatory Flexibility Act requires Federal agencies to prepare an analysis of a proposed rule's impact on small entities whenever the agency is required to publish a notice of proposed rulemaking. However, a Federal agency may certify, pursuant to 5 U.S.C. section 605(b), that the action will not have a significant economic impact on a substantial number of small entities. The MBNMS is the entity that will be affected by this rulemaking, not a small governmental jurisdiction, small organization or small business, as defined by the Regulatory Flexibility Act. Any requirements imposed by a Letter of Authorization issued pursuant to these regulations, and any monitoring or reporting requirements imposed by these regulations, will be applicable only to the MBNMS. The MBNMS is part of the National Oceanic and Atmospheric Administration, National Ocean Service, a Federal agency responsible for managing the national marine sanctuary program. Because this action, if adopted, would directly affect the MBNMS and not a small entity, NMFS concludes the action would not result in a significant economic impact on a substantial number of small entities.

For reasons set forth in the preamble, 50 CFR part 216 is proposed to be amended as follows:

1. The authority citation for part 216 continues to read as follows:

2. Subpart J is added to part 216 to read as follows:

On May 27, 2005, the Regional Administrator for the NMFS Pacific Islands Region notified the Council that overfishing of the bottomfish species complex is occurring within the Hawaiian Archipelago. In accordance with the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), the Council is preparing an amendment to the Bottomfish FMP to end overfishing in the bottomfish complex in the Hawaiian Archipelago. Bottomfish in the Hawaiian Archipelago are a collection, or complex, of deep-slope snappers, groupers, and jacks. The primary species addressed in the DSEIS are the “Deep 7” bottomfish species. The Deep 7 bottomfish species are: onaga ( Etelis corsucans ), ehu ( Eetelis carbunculus ), gindai ( Pristipomoides zonatus ), kalekale ( Pristipomoides sieboldii ), hapuupuu ( Epinephelus quernus ), opakapaka ( Pristipomoides filamentosus ), and lehi ( Aphareus rutilans ). The DSEIS examines Hawaii's bottomfish fisheries, describes the alternatives being considered to end the overfishing, and identifies the impacts associated with each alternative.

The proposed Federal action in the DSEIS is the approval of an amendment to end overfishing of Hawaii's archipelagic bottomfish multi-species stock complex by the Secretary of Commerce and the implementation and enforcement of the amendment's regulatory measures by NMFS. The proposed Federal action in the DSEIS would be the implementation of a seasonal closure between May 1 and August 31 prohibiting the targeting, possession, landing, or selling of any of Hawaii's Deep 7 bottomfish species. However, if the State of Hawaii does not commit to promulgate seasonal closure regulations, the proposed Federal action would be the implementation of a closure of Middle and Penguin Banks to the targeting, possession, landing, or selling of any of Hawaii's Deep 7 bottomfish species from Middle and Penguin Banks.

All attendees wishing to comment during the public hearing must register during the registration period for the hearing.

The following format will be used as a guideline for conducting the hearing.

1. Open the Hearing

2. Introductions and Hearing Procedures

3. Presentation of the Proposed Action and the Alternatives

4. Opportunity for Public to Ask Questions to Clarify Points Made in the Presentation

5. Public Comment

6. Close the Hearing

Dates, Times and Locations of Public Hearings

(1) Maui, HI—Thursday, May 18, 2006, from 7-9 p.m., at the Maui Beach Hotel, 170 Maahumanu Ave., Maui, island of Maui Beach Hotel, 170 Kaahumanu Avenue, Kahului, HI 96732;

(2) Kauai, HI—Monday, May 22, 2006, from 7-9 p.m., at the Chiefess Kamakahelei Middle School, 4431 Nuhou St, Lihue, HI 96766; and

(3) Honolulu, HI—Thursday, May 25, 2006, from 7-9 p.m. at the Ala Moana Hotel, 410 Atkinson Drive, Honolulu, Oahu.

These hearings are physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Keith Schultz, 808-944-2276, at least five (5) business days prior to the meeting date.