Notices. Proposed rule; supplemental
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/register/2006/04/07/06-3295A research copy — for the controlling text, always check the official state or federal source. Not legal advice.
BILLING CODE 3510-22-S 71 67 Friday, April 7, 2006 Proposed Rules DEPARTMENT OF AGRICULTURE Commodity Credit Corporation 7 CFR Part 1496 RIN 0560-AH39 Procurement of Commodities for Foreign Donation AGENCY: Commodity Credit Corporation, USDA. ACTION: Proposed rule; supplemental. SUMMARY: This proposed rule proposes additional changes related to a proposed rule published by the Commodity Credit Corporation
(CCC)on December 16, 2005, entitled “Procurement of Commodities for Foreign Donation,” to specifically recognize CCC's obligations under the cargo preference legislation of the Merchant Marine Act, 1936 and to clarify the “extenuating circumstances” that may preclude awards on the basis of lowest-landed cost. CCC is also re-opening and extending the comment period on the proposed rule to accord interested persons an opportunity to comment thereon. DATES: Comments on this proposed rule and the proposed rule published December 16, 2005 (70 FR 74717-74721) must be received on or before May 8, 2006 in order to be assured consideration. ADDRESSES: Comments may be submitted by any of the following methods: • *E-Mail:* Send comments to *Richard.Chavez@USDA.gov.* • *Fax:* Submit comments by facsimile transmission to:
(202)690-2221. • *Mail:* Send comments to: Director, Commodity Procurement Policy & Analysis Division, Farm Service Agency, United States Department of Agriculture (USDA), Rm. 5755-S, 1400 Independence Avenue, SW., Washington, DC 20250-0551. • *Hand Delivery or Courier:* Deliver comments to the above address. • *Federal Rulemaking Portal:* Go to *http://www.regulations.gov.* Follow the online instructions for submitting comments. FOR FURTHER INFORMATION CONTACT: Richard Chavez, phone:
(202)690-0194; E-Mail: *Richard.Chavez@USDA.gov.* SUPPLEMENTARY INFORMATION: Background CCC procures agricultural commodities for donation overseas under various food aid authorities. These authorities include Title II of the Agricultural Trade Development and Assistance Act of 1954 (Pub. L. 480), which is administered by the U.S. Agency for International Development (USAID), and the Food for Progress and the McGovern-Dole International Food for Education and Child Nutrition Programs, which are administered by the Foreign Agricultural Service within USDA. On December 16, 2005, CCC published a proposed rule proposing to change the bid evaluation process used in connection with the purchase of commodities for these programs. *See* 70 FR 74717-74721. Generally, as discussed in the preamble to that proposed rule, CCC proposed a one-step bid evaluation process for these procurements that would analyze actual freight offers together with commodity offers to arrive at an overall lowest-landed cost. The comment period for the proposed rule ended March 9, 2006. *See* 71 FR 3442. In reviewing the proposed rule after interagency discussions, CCC believes it would be helpful to clarify two points regarding the proposed procurement process. First, CCC should state that it will administer any new procurement system in a manner consistent with its obligations under the cargo preference legislation of the Merchant Marine Act, 1936. Secondly, CCC should clarify the “extenuating circumstances” that may preclude awards on the basis of lowest-landed cost. CCC will, of course, comply with cargo preference requirements. The existing regulations at 7 CFR 1496.5(a)(1), which were unchanged by the proposed rule, specify that lowest-landed cost will be calculated on the basis of U.S. flag rates and service for that portion of the commodities being purchased that CCC determines is necessary and practicable to meet cargo preference requirements * * *. It is deemed advisable to more closely relate this point to the bid award. Therefore, CCC is revising proposed § 1496.7(b) to include specific acknowledgments of cargo preference requirements in regard to awarding bids. The proposed rule also included an exception to the lowest-landed cost principle when “extenuating circumstance” justified using vessel services other than single voyage contracts or f.o.b. and f.a.s. vessel delivery terms. In such cases there would be no separate vessel offers to match with commodity offers. Under the earlier proposed rule, examples of such extenuating circumstances “may include, but are not limited to, internal strife at the foreign destination or urgent humanitarian conditions threatening the lives of persons at the foreign destination.” It was CCC's intent that such extenuating circumstances would always be of the nature of the examples cited and CCC is revising § 1496.7(b) of the proposed rule to clarify this point. In order to obtain full public input on this proposed rule, CCC encourages respondents to provide information and data on the economic effects of the proposed adoption of a one-step procurement system on their business operations. CCC would welcome comments on these effects from all participants in international food aid transactions such as ocean carriers, commodity suppliers, ports, railroads, and private relief agencies. These comments should include data appropriate for economic analysis. CCC will continue to be engaged in providing outreach and assistance efforts in association with transition to a one-step procurement process. In this regard, we are interested in learning what types of information would be of interest to the public to help in understanding the new system, as well as a means for providing that information Regulatory Flexibility Act It has been determined that the Regulatory Flexibility Act is not applicable to this rule because CCC is not required by 5 U.S.C. 553 or any other provision of law to publish a notice of proposed rulemaking with respect to the subject matter of this rule. Environmental Evaluation The environmental impacts of this rule have been considered consistent with the provisions of the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 4321 *et seq.* , the regulations of the Council on Environmental Quality (40 CFR parts 1500-1508), and the FSA regulations for compliance with NEPA, 7 CFR part 799. FSA concluded that the rule requires no further environmental review because it is categorically excluded. No extraordinary circumstances or other unforeseeable factors exist which would require preparation of an environmental assessment or environmental impact statement. Executive Order 12988 This proposed rule has been reviewed in accordance with Executive Order 12988. The provisions of this rule preempt State laws to the extent such laws are inconsistent with the provisions of this proposed rule. Executive Order 12372 This program is not subject to the provisions of Executive Order 12372, which require intergovernmental consultation with State and local officials. See the notice related to 7 CFR part 3014, subpart V, published at 48 FR 29115 (June 24, 1983). Unfunded Mandates Reform Act of 1995 This rule contains no Federal mandates under the regulatory provisions of Title II of the Unfunded Mandates Reform Act of 1995
(UMRA)for State, local, and tribal governments or the private sector. Thus, this rule is not subject to the requirements of sections 202 and 205 of the UMRA. Paperwork Reduction Act This supplemental proposed rule does not affect the information collection described in the December 16, 2005 proposed rule. The proposed rule invited public comment on the information collection and the comments have been summarized and included in the request for OMB approval under the Paperwork Reduction Act of 1995. Government Paperwork Elimination Act FSA is committed to compliance with the Government Paperwork Elimination Act, which requires Federal Government agencies to provide the public the option of submitting information or transacting business electronically to the maximum extent possible. The KCCO is now in the process of updating its computer bid-evaluation systems that would accommodate a more unified one step bid evaluation. Freight invitations would call for bids to be submitted through a web-based entry system. Most of the information collections required by this rule are fully implemented for the public to conduct business with FSA electronically. However, a few may be completed and saved on a computer, but must be printed, signed and submitted to FSA in paper form. Executive Order 12612 This rule does not have sufficient Federalism implications to warrant the preparation of a Federalism Assessment. The provisions contained in this rule will not have a substantial direct effect on States or their political subdivisions, or on the distribution of power and responsibilities among the various levels of government. List of Subjects in 7 CFR Part 1496 Agricultural commodities, Exports, Foreign aid. Accordingly, CCC proposes to amend 7 CFR 1496.7 as set forth in the proposed rule published December 16, 2005 (70 FR 74717-74721) as follows: PART 1496—PROCUREMENT OF PROCESSED AGRICULTURAL COMMODITIES FOR DONATION UNDER TITLE II, PUB. L. 480 1. The authority citation for part 1496 is revised to read as follows: Authority: 7 U.S.C. 1431(b); 1721-1726a; 1731-1736g-2; 1736o; 1736o-1; 15 U.S.C. 714b and 714c; 46 U.S.C. App. 1241(b), and 1241(f). 2. In § 1496.7, paragraph
(b)is revised to read as follows: § 1496.7 Final contract determinations.
(b)*Combination of bids.* CCC will determine which combination of commodity bids and bids for ocean freight rates result in the lowest-landed cost of delivery of the commodity to the foreign destination. CCC will award the contract for the purchase of the commodity that results in the lowest-landed cost and would be transported in compliance with cargo preference requirements. The Contracting Officer may determine that extenuating circumstances preclude awards on the basis of lowest-landed cost, or efficiency and cost-savings justify the use of types of ocean service that would not involve an analysis of freight bids for each of CCC's commodity purchases; however, in all such cases, commodities would be transported in compliance with cargo preference requirements. Examples of extenuating circumstances are events such as internal strife at the foreign destination or urgent humanitarian conditions threatening the lives of persons at the foreign destination. Other types of services may include, but are not limited to, multi-trip voyage charters, indefinite delivery/indefinite quantity (IDIQ), delivery Cost and Freight (C & F), delivery Cost Insurance and Freight (CIF), and indexed ocean freight costs. Before contracts are awarded for other than a lowest-landed cost, the Contracting Officer shall consult with the applicable program agencies, and set forth, in writing, the reasons the contracts should be awarded on other than a lowest-landed cost. Signed at Washington, DC, on March 31, 2006. Thomas B. Hofeller, Acting Executive Vice President, Commodity Credit Corporation. [FR Doc. E6-5089 Filed 4-6-06; 8:45 am] BILLING CODE 3410-05-P DEPARTMENT OF STATE 22 CFR Part 62 RIN: 1400-AC15 [Public Notice 5356] Rule Title: Exchange Visitor Program—Training and Internship Programs AGENCY: Department of State. ACTION: Proposed rule. SUMMARY: The Department is proposing to revise its training program regulations. These revisions will, among other things, eliminate the distinction between “non-specialty occupations” and “specialty occupations”. Also, a new 12-month “intern” program is proposed to permit recent foreign graduates of degree-granting post-secondary accredited educational institutions to come to the United States to pursue work-based learning experiences in the fields in which they received their degrees. A requirement that sponsors complete an individualized Form DS-7002 Training/Internship Placement Plan for each trainee and intern prior to issuing a Form DS-2019 to the trainee or intern is also proposed. The Department will publish a Notice regarding the design of the proposed Form DS-7002, soliciting public comment regarding all recordkeeping, reporting, and data collection units. Sponsors should note that Forms DS-7002 contain a provision prohibiting the making of materially false, fictitious, or fraudulent statements or misrepresentations in connection with Training/Internship Placement Plans (18 U.S.C. 1001). DATES: The Department will accept comments on the proposed regulation from the public up to June 6, 2006. ADDRESSES: You may submit comments identified by any of the following methods: • E-mail: *jexchanges@state.gov.* You must include the RIN (1400-AC15) in the subject line of your message. • Mail (paper, disk, or CD-ROM submissions): U.S. Department of State, Office of Exchange Coordination and Designation, SA-44, 301 4th Street, SW., Room 734, Washington, DC 20547. • Fax: 202-203-5087. Persons with access to the Internet may also view this notice and provide comments by going to the regulations.gov Web site at: *http://www.regulations.gov/index.cfm.* FOR FURTHER INFORMATION CONTACT: Stanley S. Colvin, Director, Office of Exchange Coordination and Designation, U.S. Department of State, SA-44, 301 4th Street, SW., Room 734, Washington, DC 20547; or e-mail at *jexchanges@state.gov.* SUPPLEMENTARY INFORMATION: The Department of State (Department) designates U.S. government, academic and private sector entities to conduct educational and cultural exchange programs pursuant to a broad grant of authority provided by the Mutual Educational and Cultural Exchange Act of 1961, as amended (“Fulbright-Hays Act”). Under this authority, designated program sponsors facilitate the entry into the United States of more than 275,000 exchange participants each year. The former United States Information Agency
(USIA)and, as of October 1, 1999, its successor, the Department, have promulgated regulations governing the Exchange Visitor Program that are set forth at 22 CFR part 62. Regulations specifically governing designated training programs appear at 22 CFR 62.22. These regulations largely have remained unchanged since 1993, when the USIA undertook a major regulatory reform of the Exchange Visitor Program. Approximately 27,000 trainees enter the United States annually as participants in designated training programs. Although the regulations have not been altered in any major way since 1993, the Department's Office of Exchange Coordination and Designation (the Office) and the Government Accountability Office
(GAO)have reviewed their implementation. While training programs overall have been highly successful in meeting the goals of the Fulbright-Hays Act, both the Office and the GAO found that there have been occasions where some sponsors were misusing training programs ( *i.e.* , trainees were not receiving any training and were actually being used as “employees,” and visitors were using J visas in lieu of H visas or as stepping stones for other longer-term non-immigrant or immigrant classifications that may have been unavailable at the time of application). The proposed regulations will permit the Office to monitor more closely training and internship programs and ensure that they are not subject to abuses similar to those the GAO and the Office found with respect to certain training programs. (“Stronger Action Needed to Improve Oversight and Assess Risks of the Summer Work Travel and Trainee Categories of the Exchange Visitor Program,” Report GAO-06-106, October 2005.) The 1993 regulatory overhaul of the Exchange Visitor Program regulations included a provision in the regulations governing training programs that distinguished among training in “specialized,” “non-specialized,” and “unskilled” occupations. Experience has shown that the distinctions between and among these occupational categories are conceptually artificial and do not adequately describe the types of training that the Department desires to promote in the national interest. In that regard, the Department has concluded that it is more *the amount* of prior experience that trainees acquire, rather than some artificial categorization of *the type* of training, that should determine whether trainees should be permitted to enter the United States for further training. Accordingly, these proposed regulations will require that trainees have a minimum of three years of prior related work experience in their occupational fields before being eligible to participate in the Exchange Visitor Program. Further, in order that trainees be sufficiently fluent in English to comprehend fully the training they undertake, the regulations will require that trainees have a minimum TOEFL® (Test of English as a Foreign Language) score of 550, or its equivalent. The Department will continue to designate training programs in the following occupational categories: Arts and culture; information media and communications; education, social sciences, and library science; management, business, commerce, and finance; health related occupations; aviation; the sciences, engineering, architecture, mathematics, and industrial occupations; construction and building trades; agriculture, forestry, and fishing; public administration and law; hospitality and tourism; and such other occupational categories that the Department may from time to time include in the program. The Department directs the attention of sponsors to two Statements of Policy that it has recently promulgated and which will have an impact on certain training programs. The first Statement of Policy notified the public that the Department will not designate any new flight training programs; nor will it permit currently-designated flight training programs to expand, pending a determination as to which Federal agency ultimately will be tasked with administering and monitoring flight training programs. (See 71 FR 3913, January 24, 2006.) The Department also recently issued a Statement of Policy notifying the public that it will not designate any new J visa agricultural training programs; nor will it permit currently-designated programs offering agricultural training to expand the agricultural training component of their programs, pending the Department's determination whether such programs are subject to, and if so, whether they are in compliance with, certain Federal statutes covering agricultural workers. (See 71 FR 3914, January 24, 2006.) The regulations proposed herein do not revoke or otherwise affect those two Statements of Policy. They remain in effect. The regulations the USIA adopted in 1993 contain provisions for the preparation of training plans for trainees (22 CFR 62.22(f) and (g)). The Office's experience since 1993 has shown that the regulations regarding the content and use of such training plans have not been effective, and they do not adequately assist the Office in determining whether trainees receive real training, for example, or whether “boilerplate” structured training plans accurately describe actual trainee activities. The Department proposes to replace the existing training plan regulations with new regulations that appear below under the heading “Training/Internship Placement Plan.” The Department will provide an opportunity for comment on this proposed form by separate **Federal Register** announcement. The Department also recognizes that recent college and university level graduates ( *i.e.* , those who graduated no more than 12 months prior to the begin dates of their individual internship programs) and who have not yet had the opportunity to acquire work experience in their chosen fields of study, may also be interested in pursuing training in the United States in their prospective occupational fields. The Department has concluded that it is in furtherance of the goals of the Fulbright-Hays Act that such graduates should be permitted and, indeed, encouraged to enter the United States for post-graduate practical training in structured and guided training programs. Accordingly, these proposed regulations will create a new intern sub-category within the regulations governing trainees. It is imperative that the new internship programs provide learning experiences for recent graduates that are an integral part of their continuing education and that are consistent with the Congressional intentions underlying enactment of the Fulbright-Hays Act. To that end, the proposed regulations include provisions that:
(1)Limit internship program participation to only recent graduates from degree-granting accredited post-secondary academic institutions;
(2)require that interns have a minimum TOEFL® score of 550, or its equivalent; and
(3)require the completion of individualized Training/Internship Placement Plans prior to interns' departures from their home countries. Interns may remain in the United States as participants in designated internship programs for a maximum of 12 months. The proposed regulations also provide that trainees and interns may return to the United States for repeat training opportunities only after they have been absent from the United States for at least two years following completion of their initial training or internship programs. With respect to flight training, the proposed regulations link the duration of on-the-job or practical training to the amount of time flight trainees spend in full-time classroom study. Flight trainees will be permitted to engage in one month of on-the-job or practical training for each four months of full-time classroom study they successfully complete. This mirrors the practical training provision in the regulations governing the M visa, 8 CFR 214.2(m). With respect to flight training programs, the duration of the total training period, like that under the M visa, will be directly related to the amount of classroom training that trainees successfully complete, but will not exceed 18 months for the combined classroom and on-the-job practical training. Training programs in the agricultural, hospitality, and tourism categories will be limited to 12 months' duration. The GAO, the Department's Office of Inspector General, and the Inspector General of the USIA have consistently singled out these three categories of training for review and criticism. Concerns about these training programs often focus on reviewing officers' inability to distinguish on-the-job training from employment. The Department does not embrace these criticisms in their entirety, as the simple fact that exchange visitors are working does not mean they are not engaged in training. Recognizing the value of training in these fields, but mindful of the need to prevent abuse—or the appearance thereof—the Department maintains that 12 months of training in these fields will address the underlying employment concerns while permitting opportunities for legitimate training. In addition, sponsors of agricultural programs must certify that they meet all requirements of the Fair Labor Standards Act, as amended (29 U.S.C. 201 *et seq.* ) and the Migrant and Seasonal Agricultural Worker Protection Act, as amended (29 U.S.C. 1801 *et seq.* ). Regulatory Analysis Administrative Procedure Act The Department is publishing this rule as a proposed rule, with a 60-day provision for public comments. Regulatory Flexibility Act/Executive Order 13272: Small Business These proposed changes to the regulations are hereby certified as not expected to have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act, 5 U.S.C. 601-612, and Executive Order 13272, section 3(b). Unfunded Mandates Reform Act of 1995 This rule will not result in the expenditure by State, local and tribal governments, in the aggregate, or by the private sector, of $100 million in any year and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995. Small Business Regulatory Enforcement Fairness Act of 1996 This rule is not a major rule as defined by 5 U.S.C. 804 for the purposes of Congressional review of agency rulemaking under the Small Business Regulatory Enforcement Fairness Act of 1996 (5 U.S.C. 801-808). This rule will not result in an annual effect on the economy of $100 million or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based companies to compete with foreign-based companies in domestic and export markets. Executive Order 12866 The Department does not consider this rule to be a “significant regulatory action” under Executive Order 12866, section 3(f), Regulatory Planning and Review. In addition, the Department is exempt from Executive Order 12866 except to the extent that it is promulgating regulations in conjunction with a domestic agency that are significant regulatory actions. The Department has nevertheless reviewed the regulation to ensure its consistency with the regulatory philosophy and principles set forth in that Executive Order. Executive Order 12988 The Department has reviewed this regulation in light of sections 3(a) and 3(b)(2) of Executive Order 12988 to eliminate ambiguity, minimize litigation, establish clear legal standards, and reduce burden. Executive Orders 12372 and 13132 This regulation will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with section 6 of Executive Order 13132, it is determined that this rule does not have sufficient federalism implications to require consultations or warrant the preparation of a federalism summary impact statement. The regulations implementing Executive Order 12372 regarding intergovernmental consultation on Federal programs and activities do not apply to this regulation. Paperwork Reduction Act Under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 *et seq.* ; PRA), Federal agencies must obtain approval from OMB for each collection of information they conduct, sponsor, or require through regulation. The Department has determined that this proposed rule contains collection of information requirements for the purposes of the PRA. The Department will submit to OMB its request for review of new information collection as part of the proposal. The submission will include a Form DS-7002 Training/Internship Placement Plan, which will be the subject of a separate **Federal Register** notice and request for public comment. The new collection of information will replace the training plans currently required under 22 CFR 62.22. List of Subjects in 22 CFR Part 62 Cultural exchange programs, Reporting and recordkeeping requirements. Accordingly, 22 CFR part 62 is proposed to be amended as follows: PART 62—EXCHANGE VISITOR PROGRAM 1. The authority citation for part 62 continues to read as follows: Authority: 8 U.S.C. 1101(a)(15)(J), 1182, 1184, 1258; 22 U.S.C. 1431-1442, 2451-2460; Foreign Affairs Reform and Restructuring Act of 1998, Public Law 105-277, 112 Stat. 2681 *et seq.* ; Reorganization Plan No. 2 of 1977, 3 CFR, 1977 Comp., p. 200; E.O. 12048 of March 27, 1978; 3 CFR, 1978 Comp., p. 168. 2. Section 62.2 is amended by removing the paragraphs defining “Non-specialty occupation” and “Specialty occupation” and by adding the following terms to read as follows: § 62.2 Definitions. Clerical—means routine administrative work generally performed in an office or office-like setting, such as recordkeeping, filing, typing, mail sorting and distribution, and other general office tasks. Intern—means a foreign college or university level graduate who, within 12 months following graduation, enters the United States to participate in a structured and guided period of work-based learning related to the specific field in which he or she earned a degree. Internship—means a structured and guided work-based program that reinforces a recent graduate's academic study and provides on-the-job exposure to American techniques, methodologies, and technology, and enhances the intern's knowledge of American culture and society. Trainee—means a foreign individual who has at least three years of prior related work experience in his or her occupational field and who enters the United States to participate in a structured and guided work-based training program in his or her specific occupational field. Training—means a structured and guided work-based learning program set forth in an individualized Trainee/Internship Placement Plan that enhances both a trainee's skills in his or her occupational specialty through exposure to American techniques, methodologies, and technology, and a trainee's understanding of American culture and society. 3. Section 62.22 is revised to read as follows: § 62.22 Trainees and Interns.
(a)*Introduction.* These regulations govern Exchange Visitor Programs under which foreign nationals have the opportunity to receive training in the United States. These regulations also establish a new internship program under which recent foreign post-secondary school graduates who graduated not more than 12 months prior to their Exchange Visitor Programs' begin dates may enter the United States to obtain work-based learning in the fields in which they received their degrees. Regulations dealing with training opportunities for certain foreign students who are studying at post-secondary accredited educational institutions in the United States are found at § 62.23 (“College and University Students”). Regulations governing foreign medical trainees are found at § 62.27 (“Alien Physicians”).
(b)*Purpose.*
(1)The primary objectives of the programs offered under these regulations are to enhance the skills and expertise of exchange visitors in their occupational or educational fields through participation in structured and guided training and internship programs and to improve participants' knowledge of American techniques, methodologies and technology. Such training and internship programs are also intended to increase participants' understanding of American culture and society and to enhance Americans' knowledge of foreign cultures and skills through an open interchange of ideas between participants and their American associates. A key goal of the Fulbright-Hays Act, which authorizes these programs, is that participants will return to their home countries and share their experiences with their countrymen. Exchange Visitor Program training and internship programs are not to be used as substitutes for ordinary employment or work purposes; nor may they be used under any circumstances to displace American workers. These regulations are designed to distinguish between *bona fide* training, which is permitted, and merely gaining additional work experience, which is not permitted.
(2)In addition, a specific objective of the new internship program is to provide recent foreign post-secondary school graduates a period of work-based learning in the fields in which they earned their degrees. Bridging the gap between formal education and practical work experience and gaining substantive cross-cultural experience in graduates' fields of study are major goals in educational institutions around the world. By providing opportunities for recent foreign graduates at formative stages of their development, the United States Government will build partnerships, create mutual understanding, and develop platforms for relationships that will last through generations as these graduates move into leadership roles in a broad range of professional fields in their own societies. These values are closely tied to the goals, themes, and spirit of the Fulbright-Hays Act.
(c)*Designation.*
(1)The Department may, in its sole discretion, designate as sponsors entities meeting the eligibility requirements set forth in subpart A of 22 CFR part 62 and satisfying the Department that they have the organizational capacity successfully to administer and facilitate training or internship programs.
(2)Sponsors shall provide training and internship programs only in the category or categories for which the Department has designated them as sponsors. The Department will designate training and internship programs in any of the following occupational categories:
(i)Arts and Culture;
(ii)Information Media and Communications;
(iii)Education, Social Sciences, and Library Science;
(iv)Management, Business, Commerce and Finance;
(v)Health Related Occupations;
(vi)Aviation (subject to the Statement of Policy set forth at 71 FR 3913, January 24, 2006);
(vii)The Sciences, Engineering, Architecture, Mathematics, and Industrial Occupations;
(viii)Construction and Building Trades;
(ix)Agriculture (subject to the Statement of Policy set forth at 71 FR 3914, January 24, 2006), Forestry, and Fishing;
(x)Public Administration and Law; and
(xi)Hospitality and Tourism.
(d)*Selection Criteria.* In addition to satisfying the general requirements set forth in subpart A above, sponsors of trainees must verify that all potential participants in their training programs have at least three years' prior related work experience in the occupational fields related to the specific training categories of their programs and have a minimum TOEFL® (Test of English as a Foreign Language) score of 550, or its equivalent. Sponsors of interns must verify that all potential participants in their internship programs:
(1)Are recent graduates of accredited foreign degree-granting colleges or universities who have earned degrees in fields of study related to the specific categories in which they are seeking internships;
(2)Have not graduated more than 12 months prior to their proposed Exchange Visitor Programs' begin dates; and
(3)Have a minimum TOEFL® score of 550, or its equivalent.
(e)*Issuance of Forms DS-2019.* In addition to the requirements set forth in Subpart A, sponsors must ensure that:
(1)Sponsors do not issue Forms DS-2019 to potential participants in training or internship programs until the sponsors secure placements for the trainees or interns and sponsors provide them with completed Training/Internship Placement Plans;
(2)Trainees or interns have sufficient finances to support themselves for their entire stay in the United States, including housing and living expenses; and
(3)The training or internship programs are not duplicative of any experience that participants already obtained in their home countries.
(f)*Obligations of Training and Internship Program Sponsors.*
(1)In addition to the requirements set forth in subpart A, sponsors designated by the Department to administer training or internship programs must:
(i)Ensure that trainees and interns are appropriately placed and supervise and evaluate trainees and interns on an on-going basis;
(ii)Provide guidance to trainees and interns during the placement process;
(iii)Stay in communication with trainees and interns throughout the training or internship programs;
(iv)Be available to trainees and interns to assist as facilitators, counselors, and information resources;
(v)Ensure that training or internship programs provide a balance between the trainees and interns' learning opportunities and their trainees' or interns' contributions to the organizations in which they are placed;
(vi)Ensure that sufficient plant, equipment, and trained personnel are available to provide the specified training;
(vii)Ensure that they or third parties follow the agendas set forth in the individualized Training/Internship Placement Plans so that trainees and interns obtain skills, knowledge, and competences through structured and guided activities such as classroom training, seminars, rotation through several departments, on-the-job training, attendance at conferences, and similar learning activities, as appropriate in specific circumstances;
(viii)Ensure that trainees and interns do not displace American workers. The positions that trainees and interns fill shall exist solely to assist trainees and interns in achieving the objectives of their participation in training or internship programs; and
(ix)Certify that training and internship programs in the field of agriculture meet all requirements of the Fair Labor Standards Act, as amended (29 U.S.C. 201 *et seq.* ) and the Migrant and Seasonal Agricultural Worker Protection Act, as amended (29 U.S.C. 1801 *et seq.* ).
(2)Sponsors must conduct in-person interviews with potential trainees or interns in their home countries and, further, must ensure that:
(i)Suitably trained and experienced staff is designated to provide supervision and mentoring for all trainees and interns at all training sites;
(ii)They conduct periodic evaluations, as outlined below;
(iii)All employees, officers, agents, or third parties (foreign or domestic) used to conduct any aspect of training or internship programs ( *e.g.* , orientation) must be fully trained and supervised by an officer of the designated sponsors in the performance of these functions, and that they adhere to all regulatory provisions set forth in this Part as well as all additional terms and conditions governing exchange program administration that the Department may from time to time impose;
(iv)The training or internship programs are full-time (minimum of 32 hours a week); and
(v)Potential trainees (but not potential interns) have at least three years of prior related work experience in the occupational fields related to the specific training categories of their training programs.
(3)Sponsors, trainees or interns, and third-party placement organizations, if applicable, must jointly develop individualized Training/Internship Placement Plans on Forms DS-7002 before issuing Forms DS-2019 to trainees or interns.
(4)Sponsors must retain all documents referred to in this paragraph
(f)for at least three years following the completion of all trainees' or interns' training or internship programs.
(g)*Use of Third Parties.* Sponsors may utilize the services of domestic or foreign third party organizations in the conduct of their designated training or internship programs. If sponsors use third parties, they must enter into written agreements meeting the requirements of paragraph (g)(3) of this section, before placement of trainees or interns. Sponsors' use of third parties does not relieve sponsors of their obligations to comply with, and to ensure third party compliance with, all Exchange Visitor Program regulations. Any failures on the parts of the third parties to comply with these regulations will be imputed to sponsors. If trainees or interns are placed at locations other than their sponsors' business premises, sponsors must:
(1)Conduct on-site visits to all third-party organizations to ensure that the organizations providing the training or internship programs possess and maintain the ability to provide structured and guided practical experience according to the individualized Training/Internship Placement Plans and ensure that third party organizations understand their obligations under the Exchange Visitor Program regulations.
(2)Ensure that all third party organizations providing training or internship programs have been in business for a minimum of three years.
(3)Ensure the existence of written and executed agreements between sponsors and third party organizations to administer training or internship programs prior to the placement of trainees or interns in such programs. These agreements must delineate the respective obligations and duties of the parties and identify the parties' obligations to act in accordance with these regulations to ensure that skills, knowledge, and competences are imparted to trainees or interns through structured and guided programs set forth in individualized Training/Internship Placement Plans. Such plans must be appropriate to trainees' or interns' levels of experience and skill and be consistent with all requirements of the Exchange Visitor Program. These agreements must also include third party organizations' business license numbers, Employment Identification Codes (EIDs), D-U-N-S Numbers, and points of contact. Sponsors must maintain copies of all such agreements in their files for at least three years following the completion of each training or internship program.
(4)Ensure that within 48 hours of placement, the trainees' or interns' supervisors or managers conduct entry interviews and orientations of their organizations. Such orientations must include the history, missions, goals, organizational structures, objectives, policies, and procedures of the organizations, and must provide training on the use of equipment and other relevant technology at training sites.
(h)*Third Party Organization Obligations* .
(1)Third party organizations must verify in writing that all placements are appropriate and consistent with the objectives of trainees or interns as outlined in their individualized Training/Internship Placement Plans. All parties involved in internship programs should recognize that interns are seeking basic training and experience in the fields in which they earned their degrees. Accordingly, many, if not all of the placements for interns will be entry level in nature.
(2)Third party organizations must execute written agreements with designated sponsors as set forth in paragraph (g)(3) of this section.
(3)Third party organizations must notify sponsors of any concerns about, changes in, or deviations from Training/Internship Placement Plans during training or internship programs.
(4)Third party organizations must not use trainees or interns to displace American workers. The positions that trainees and interns fill must exist solely to assist trainees and interns to achieve the objectives of their participation in training and internship programs.
(i)*Training/Internship Placement Plan* .
(1)Prior to issuing Forms DS-2019, sponsors must provide trainees or interns with individualized Training/Internship Placement Plans on Forms DS-7002.
(2)Training/Internship Placement Plans must be on the Department's Form DS-7002 and must state the trainees' or interns' names and relevant contact information (telephone numbers, addresses, e-mail addresses, and fax numbers), the number of years of experience the trainees have had in their occupational fields, the beginning and ending dates of the training or internship programs, the address of the sponsors and locations of the training or internship programs and the name and relevant contact information (telephone numbers, addresses, e-mail addresses, and fax numbers) of the supervisors or managers who will evaluate and monitor the trainees or interns.
(3)Training/Internship Placement Plans must also state the purposes of the training or internship programs, the skills the trainees or interns seek, whether the trainees or interns will receive any remuneration for housing and living expenses (and if so, the amount), and estimates of the living expenses and other costs the trainees or interns are likely to incur while in the United States.
(4)Training/Internship Placement Plans must be produced in triplicate and the trainees or interns, sponsors, and the third party placement organizations (if a third party organization is used in the conduct of the training) must each sign each copy.
(5)All signatories to Training/Internship Placement Plans shall receive and retain individual versions of the Training/Internship Placement Plans that contain original signatures of each of the foregoing individuals.
(6)Upon request, trainees or interns must present fully executed Training/Internship Placement Plans on Forms DS-7002 to any Consular Official interviewing them in connection with the issuance of J-1 visas.
(j)*Program Exclusions* . Sponsors designated by the Department to administer training or internship programs must not:
(1)Sponsor trainees or interns in unskilled or casual labor positions, in positions that require or involve child care or elder care, or in clinical or any other kind of work that involves patient care or contact, including any work that would require trainees or interns to provide therapy, medication, or other clinical or medical care ( *e.g.* , sports or physical therapy, psychological counseling, nursing, dentistry, social work, speech therapy, or early childhood education);
(2)Sponsor trainees or interns in occupations or businesses that could bring the Exchange Visitor Program or the Department into notoriety or disrepute; or
(3)Engage staffing or employment agencies to recruit, screen, orient, or place trainees or interns.
(4)Designated sponsors must ensure that the duties of trainees or interns will not involve more than 20% clerical work, and that all tasks assigned to trainees or interns are necessary for the completion of training or internship program assignments.
(k)*Duration* . The duration of trainees' or interns' participation in training or internship programs must be established before sponsors issue Forms DS-2019. Except as noted below, the maximum duration of training programs is 18 months, and the maximum duration of internship programs is 12 months. For trainees in agricultural training programs and hospitality and tourism training programs, the maximum duration of training programs is 12 months. No program extensions are permitted after sponsors issue Forms DS-2019.
(l)*Evaluation* . In order to ensure the quality of training or internship programs, sponsors must develop procedures for evaluation of all trainees or interns. For programs exceeding six months in duration, at a minimum, midpoint and concluding evaluations are required from the trainees' or interns' immediate supervisors, and both parties (supervisors and trainees or interns) must sign them prior to the completion of the training or internship programs. For programs of six months or less, at least one evaluation is required at the conclusion of the training or internship program, and it must be signed by both parties (supervisors and trainees or interns) prior to the completion of the training or internship programs. Sponsors are required to retain trainee or intern evaluations for a period of at least three years following the completion of each training or internship program.
(m)*Issuance of Certificate of Eligibility for Exchange Visitor (J-1) Status* . Sponsors must not deliver or cause to be delivered any Certificate of Eligibility for Exchange Visitor (J-1) Status (Form DS-2019) to potential trainees or interns unless the individualized Training/Internship Placement Plans required by paragraph
(i)of this section have been completed on Form DS-7002, and all other requirements set forth in these regulations have been met.
(n)*Repeat Participation* . Individuals who enter the United States under the Exchange Visitor Program to participate in training or internship programs are not eligible for repeat participation unless they have resided outside the United States for a period of at least two years after the completion of their initial training or internship programs.
(o)*Flight Training* .
(1)The Department will consider the application for designation of flight training programs if such programs comply with the above regulations and the General Provisions set forth in Subpart A of this part, and, in addition, such programs are at the time of making said application:
(i)Federal Aviation Administration
(FAA)pilot schools certificated pursuant to Title 14, CFR part 141; and
(ii)Flight training programs accredited by an agency that is listed in the current edition of the United States Department of Education's “Nationally Recognized Accrediting Agencies and Associations,” or are accredited as flight training program by a member of the Council on Postsecondary Accreditation.
(2)Notwithstanding the provisions of paragraph
(k)of this section, the maximum period of duration for participation in designated flight training programs is directly related to the amount of time that flight trainees spend in full-time classroom study. Flight trainees are allowed to engage in one month of on-the-job or practical training for each four months of full-time classroom study they complete successfully, not to exceed 18 months for the combined classroom study and on-the-job or practical training.
(3)For purposes of meeting the evaluation requirements set forth in paragraph
(l)of this section, sponsors and/or third parties conducting flight training programs may utilize the same training records as the FAA requires to be maintained pursuant to 14 CFR 141.101. Dated: March 30, 2006. Stanley S. Colvin, Director, Office of Exchange Coordination and Designation, Bureau of Educational and Cultural Affairs, Department of State. [FR Doc. E6-4946 Filed 4-6-06; 8:45 am] BILLING CODE 4710-05-P DEPARTMENT OF THE INTERIOR Minerals Management Service 30 CFR Part 205 RIN 1010-AC29 Reporting and Paying Royalties on Federal Leases on Takes or Entitlements Basis AGENCY: Minerals Management Service (MMS), Interior. ACTION: Advance notice of proposed rulemaking and announcement of public meeting. SUMMARY: The MMS requests comments and suggestions to assist us in proposing regulations regarding so-called “takes versus entitlements” reporting and payment of royalties when oil and gas production is commingled upstream of the point of royalty measurement. DATES: You must submit your comments by June 6, 2006. A public meeting to solicit further comments will be held in Lakewood, Colorado, on Wednesday, May 10, 2006. ADDRESSES: Please use the regulation identifier number (RIN), RIN 1010-AC29, in all your correspondence. Submit your comments, suggestions, or objections regarding the advanced notice of the proposed rulemaking by any of the following methods: *By e-mail. mrm.comments@mms.gov.* Please include “Attn: RIN 1010-AC29” and your name and return address in your Internet message. If you do not receive a confirmation that we have received your Internet message, call the contact person listed below; *By regular U.S. mail.* Minerals Management Service, Minerals Revenue Management, P.O. Box 25165, MS 302B2, Denver, Colorado 80225-0165; or *By overnight mail, courier, or hand-delivery.* Minerals Management Service, Minerals Revenue Management, Building 85, Room A-614, Denver Federal Center, West 6th Ave. and Kipling Blvd., Denver, Colorado 80225. FOR FURTHER INFORMATION CONTACT: Sharron L. Gebhardt, Lead Regulatory Specialist, Minerals Management Service, Minerals Revenue Management, P.O. Box 25165, MS 302B2, Denver, Colorado 80225-0165, telephone
(303)231-3211, FAX
(303)231-3781, or e-mail *Sharron.Gebhardt@mms.gov.* SUPPLEMENTARY INFORMATION: I. Public Meeting Information The MMS previously published a notice in the **Federal Register** on November 29, 2005 (70 FR 228), announcing a public meeting in Houston, Texas, on December 14, 2005. That meeting was attended primarily by offshore producers. The MMS wants to provide additional opportunity for onshore producers to participate in a public meeting. This public meeting will be held in Lakewood, Colorado. See IV, Description of Information Requested, for details. This second meeting will be held on Wednesday, May 10, 2006, from 9 a.m. to 1 p.m. central time, in the Main Auditorium, Rooms B and C, located in Building 85 on the Denver Federal Center located at West 6th Ave. and Kipling Blvd. in Lakewood, Colorado. For further information, please contact Roman A. Geissel at
(303)231-3226. II. Public Comment and Meeting Procedures The MMS may not necessarily consider or include in the Administrative Record, for any proposed rule, comments that MMS receives after the close of the comment period or comments delivered to an address other than those listed in the ADDRESSES section of this document. A. Written Comment Procedures We are particularly interested in receiving comments and suggestions about the topics identified in IV, Description of Information Requested. Your written comments should:
(1)Be specific;
(2)explain the reason for your comments and suggestions;
(3)address the issues outlined in this notice; and
(4)where possible, refer to the specific provision, section, or paragraph of statutory law, case law, lease term, or existing regulations that you are addressing. The comments and recommendations that are most useful and have greater likelihood of influencing decisions on the content of a possible future proposed rule are:
(1)Comments and recommendations supported by quantitative information or studies; and/or
(2)comments that include citations to, and analyses of, the applicable laws, lease terms, and regulations. B. Public Meeting Procedures At the public meeting, those attending will be able to comment on the scope, proposed action, and possible alternatives MMS should consider. The purpose of the meeting is to gather comments and input from a variety of stakeholders and the public. If you do not wish to speak at the meeting but you have views, questions, or concerns with regard to MMS's implementation of section 6(d) of the Federal Oil and Gas Royalty Simplification and Fairness Act (RSFA), Public Law 104-185, Aug. 13, 1996, 110 Stat 1700, 1713-1714, as corrected by Public Law 104-200, Sept. 22, 1996, codified at 30 U.S.C. 1721(k), entitled “Volume Allocations of Oil and Gas Production,” you may submit written statements at the meeting for inclusion in the public record. You may also submit written comments and suggestions regardless of whether you attend or speak at the public meeting. See the ADDRESSES section of this document for instructions on submitting written comments. Due to Denver Federal Center security requirements, attendees at the meeting will need a picture ID in order to be admitted onto the Denver Federal Center and into Building 85. The site for the public meeting is accessible to individuals with physical impairments. If you need a special accommodation to participate in the meeting (e.g., interpretive service, assistive listening device, or materials in alternative format), please notify Mr. Geissel no later than 2 weeks prior to the scheduled meeting. Although we will make every effort to accommodate requests received, it may not be possible to satisfy every request. C. Public Comment Policy Our practice is to make comments, including names and home addresses of respondents, available for public review at our Denver office during regular business hours and on our website at *http://www.mrm.mms.gov/Laws_R_D/FRNotices/FRHome.htm,* or on request to Sharron Gebhardt at
(303)231-3211. Individual respondents may request that we withhold their individual home address from the rulemaking record, which we will honor to the extent allowable by law. There also may be circumstances in which we would withhold from the rulemaking record a respondent's identity, as allowable by law. If you wish us to withhold your name and/or address, you must state this prominently at the beginning of your comments. However, we will not consider anonymous comments. We will make all submissions from organizations or businesses, and from individuals identifying themselves as representatives or officials of organizations or businesses, available for public inspection in their entirety. III. Description of Information Requested On August 13, 1996, the President signed RSFA into law. Section 6(d) of RSFA, entitled “Volume Allocations of Oil and Gas Production,” amended section 111 of the Federal Oil and Gas Royalty Management Act of 1982 (FOGRMA), Public Law 97-451-Jan. 12, 1983 (30 U.S.C. 1721), by adding new paragraphs (k)(1)-(5). The proposed rulemaking would implement RSFA amendments to FOGRMA § 111(k)(1)-(4). Congress enacted these amendments to clarify and resolve the long-standing issues regarding so-called “takes versus entitlements.” Those issues arose primarily where the amount of natural gas taken (“takes”) and sold by a lessee from Federal leases subject to a unit or communitization agreement was not equal to the lessee's entitled share (“entitlements”), based on its ownership interest in leases in the unit or communitization agreement. These imbalances led to numerous questions about who should report and pay on what volumes and for what leases. To obtain input from parties affected by RSFA amendments to FOGRMA section 111(k)(1)-(4), MMS formed a consultation team comprised of representatives from interested states, oil and gas trade associations, and MMS. The consultation team held meetings on October 30, November 19, and December 6, 1996. The meetings resulted in general agreement on definitions, the reporting requirements for 100-percent Federal units and communitization agreements, the definition of a “marginal property,” and how a marginal property reporting exception would be determined. Subsequent to those meetings, in the process of trying to develop a proposed rule implementing RSFA amendments to FOGRMA section 111 (k)(1)-(4), an issue arose regarding the commingling of oil and gas production from multiple properties upstream of the point of royalty measurement. For purposes of this discussion: • A “property” is defined as a lease, unit, or communitization agreement. • A “100-percent Federal unit or communitization agreement” means any unit or communitization agreement that contains only Federal leases having the same fixed royalty rate and funds distribution. • A “unit” means a unit participating area, enhanced recovery unit, or field-wide unit. • A “mixed unit or communitization agreement” means any unit or communitization agreement other than a 100-percent Federal unit or communitization agreement. These are unit or communitization agreements that contain any mixture of Federal, Indian, state or private mineral estates, or that contain all Federal leases with different royalty rates (fixed or variable) or different funds distribution. • A “stand-alone lease” means a lease or a portion of a lease that is not in a unit or communitization agreement. The RSFA clearly identifies when it is appropriate to initially report and pay on a “takes” or “entitlements” basis for production from leases, units, or communitization agreements that is not commingled with production from other properties before the royalty measurement point. For instance: • When taking production from a 100-percent Federal unit or communitization agreement, the lessee(s) must pay on actual takes (30 U.S.C. 1721(k)(1)(A)), or • When taking production from a mixed Federal unit or communitization agreement, the Federal lessee(s) must pay on entitlements (30 U.S.C. 1721(k)(1)(B)), or • When taking production from a stand-alone Federal lease, the lessee(s) must pay on takes (30 U.S.C. 1721(k)(1)(C)). It is important to note that, while RSFA section 6(d) amended FOGRMA by adding section 111(k)(1), which addressed the reporting and payment requirements, the addition of section 111(k)(2) went on to clarify that the requirements outlined in section 111(k)(1) “apply only to requirements for reporting and paying royalties. Nothing in this subsection is intended to alter a lessee's liability for royalties on oil or gas production allocated to the lease, in accordance with the terms of the lease, a unit or communitization agreement, or any other agreement.” Thus, the lessee's ultimate liability to pay royalties on its entitled share of production is not changed. Commingling adds additional complications to the issue of how to report and pay royalties. Commingling is the combining of production from multiple properties before measurement for royalty purposes. Not only do imbalances between operating rights owners within a property occur, but imbalances between properties also are commonplace. The RSFA provisions added to FOGRMA at 30 U.S.C. 1721(k)(1)-(5) do not address the effect of commingling or commingling imbalances. Thus, that issue must be addressed by rulemaking. Commingling requires approval of the MMS Offshore Minerals Management program for offshore leases or the Bureau of Land Management for onshore leases. The commingling approval identifies where the volume is measured for royalty purposes and how that volume must be allocated to each property that is subject to the commingling approval. It does not affect how volume is allocated to leases within a unit or communitization agreement. Commingling can be, and often is, approved between properties with the same royalty rate and funds distribution and between properties with different royalty rates or different funds distributions. Commingling complicates reporting requirements because there is an impact on royalty payments when there are properties with mixed royalty rates or funds distribution upstream of the approved commingling point. For example, assume that production from two stand-alone Federal leases that are not unitized or communitized, each with a different royalty rate, is commingled before the royalty measurement point. Assume that each lease receives a 50 percent allocation of the total measured production (1,000 Mcf) under the commingling approval. The lessee of the lease with a 16 2 /3 percent royalty rate actually sells (takes) 750 Mcf of gas, and the lessee of the lease with the 12 1/2 percent royalty rate actually sells (takes) 250 Mcf of gas. Based on the commingling approval, the leases are out of balance. The commingling approval determines the volume deemed to have been removed or sold from each lease upon which the lessees ultimately must pay royalty. Should each lessee pay royalties on its actual sales (takes), the Federal Government initially would be paid more than the royalty ultimately owed. If the sales were reversed, the Federal Government initially would be paid on less than the royalty ultimately owed. The RSFA prescribes how lessees should initially report and pay royalty on production removed or sold from a lease or unit or communitization agreement. The commingling approval determines the volume removed or sold from the leases or unit or communitization agreements subject to the commingling approval. The RSFA was silent on the effect of commingling approvals. We are asking for your input on several questions regarding RSFA's application to production subject to a commingling approval before the royalty measurement point. Those questions include the following:
(1)Should lessees of a lease or a 100-percent Federal unit or communitization agreement report and pay initially on their takes in a situation where production from that lease or unit or communitization agreement is commingled with other production upstream of the royalty measurement point?
(2)RSFA requires that Federal lessees in mixed unit or communitization agreements report royalties on an entitlements basis, regardless of whether the unit or communitization agreement is subject to a commingling approval. When should MMS treat a commingling approval as the equivalent of a unit or communitization agreement and apply the RSFA reporting and payment provisions on that basis? For example, if all properties measured at the commingling point are 100 percent Federal leases or units or communitization agreements with the same fixed royalty rate and funds distribution, then payments could be made on takes. If one or more of the properties measured at or after the commingling point have different royalty rates (fixed or variable), different funds distribution, or are not 100 percent Federal, all lessees would pay on entitlements. The three examples presented below illustrate some alternative methodologies to apply the (k)(1)-(4) provisions of RSFA to situations where production is commingled before royalty measurement. For each example, assume there is a stand-alone Federal lease with two lessees (lessee A and lessee B, each of whom owns 50 percent of the working interest), a 100-percent Federal unit or communitization agreement with two lessees (with lessee C owning 75 percent of the combined working interest in the two leases, and lessee D owning the remaining 25 percent), and a state lease, all of which are subject to a commingling approval. (For simplicity, assume that all of the Federal leases have the same royalty rate.) Additionally, assume that for each example, the total commingled production allocated to the properties is 100,000 Mcf of gas. Further assume that, for the month shown in the examples, the stand-alone Federal lease and the state lease are each allocated 25 percent of the commingled production under the commingling approval, and that the Federal unit or communitization agreement is allocated 50 percent. Further, assume that lessee A takes and sells 20,000 Mcf of gas. Assume that lessee B has no takes. Assume that lessee C takes and sells 30,000 Mcf of gas while lessee D takes and sells 23,000 Mcf of gas. Assume that the lessee of the state lease takes and sells 27,000 Mcf of gas. In each example, lessee ownership percentages and liability remain the same, but the volume on which royalty initially must be paid varies, depending on the methodology used. (The numbers used in the following examples are rounded to the nearest whole number.) Example 1.—“Pure Takes”—Reporting and Paying Property Allocated volume per commingling approval
(Mcf)Lessee Ownership percentage Entitled share of allocated volume
(Mcf)Sales by lessee
(Mcf)Volume on which royalty paid to MMS (takes)
(Mcf)Federal Lease (2 lessees) 25,000 A B 50 50 12,500 12,500 20,000 0 20,000 0 100-percent Federal Unit or Communitization Agreement (2 lessees) 50,000 C D 75 25 37,500 12,500 30,000 23,000 30,000 23,000 State Lease 25,000 25,000 27,000 0 Totals 100,000 100,000 100,000 73,000 By using a pure takes methodology, the volume deemed sold and removed from each lease and the unit or communitization agreement as determined under the commingling approval is not properly accounted for. Under this methodology, MMS could be paid on a volume either greater than or less than that on which the lessees ultimately owe royalty because the takes on which the Federal lessees reported and paid royalty would not always equal the volume on which royalty is due under the commingling approval. In this example, the MMS would be paid royalty on 2,000 Mcf less than the volume on which the Federal lessees ultimately owe royalty because, under the commingling approval, the Federal lessees owe royalty on 75,000 Mcf and, on a pure takes basis, the Federal lessees paid only on 73,000 Mcf. Therefore, adopting this methodology presumably would require each royalty reporter to adjust royalty payments (at least on an annual basis) to its entitled volume (equal to its ownership percentage times the volume allocated to its lease or unit or communitization agreement under the commingling approval). Example 2.—“Pure Entitlements” Reporting and Paying Property Allocated volume per commingling approval
(Mcf)Lessee Ownership percentage Entitled share of allocated volume
(Mcf)Sales by lessee
(Mcf)Volume on which royalty paid to MMS (entitlements)
(Mcf)Federal Lease (2 lessees) 25,000 A B 50 50 12,500 12,500 20,000 0 12,500 12,500 100-percent Federal Unit or Communitization Agreement (2 lessees) 50,000 C D 75 25 37,500 12,500 30,000 23,000 37,500 12,500 State Lease 25,000 25,000 27,000 0 Totals 100,000 100,000 100,000 75,000 Reporting on a “pure entitlements” basis ensures that the Federal Government is made whole with respect to royalties but would not allow for initial reporting and payment based on takes if production is commingled before the royalty measurement point. Under this methodology, MMS would be made whole each month because lessees would report and pay on their entitled volume each month, even if a particular lessee (lessee B in this example) took no production. Therefore, an adjustment to the entitled volume, as discussed above for Example 1, would not be necessary. Example 3.—“Proportionate Takes” Reporting and Paying Property Allocated volume per commingling approval
(Mcf)Lessee Ownership percentage Entitled share of allocated volume
(Mcf)Sales by lessee
(Mcf)Volume on which royalty paid to MMS (proportionate takes)
(Mcf)Federal Lease (2 lessees) 25,000 A B 50 50 12,500 12,500 20,000 0 25,000 0 100-percent Federal Unit or Communitization Agreement (2 lessees) 50,000 C D 75 25 37,500 12,500 30,000 23,000 28,302 21,698 State Lease 25,000 25,000 27,000 0 Totals 100,000 100,000 100,000 75,000 This methodology would combine takes and entitlements by requiring lessees to report and pay on volumes equal to the sales by the lessee divided by the total sales for the property times the allocated volume under the commingling approval for the property. Consider lessees C and D: In this example, lessee C would report and pay on 28,302 Mcf, even though it actually took 30,000 Mcf, and its entitled volume is 37,500 Mcf. The 28,302 Mcf is computed as follows: (30,000 Mcf/53,000 Mcf) × 50,000 Mcf = 28,302 Mcf for lessee C, where 53,000 Mcf (total sales for the property) is the sum of 30,000 Mcf (lessee C's total sales) and 23,000 Mcf (lessee D's total sales), and 50,000 Mcf is the allocated volume under the commingling approval for the property. Lessee D's initial reporting and payment would be computed similarly. Considering lessees A and B: If a lessee took no production (lessee B in this example), it would not have to pay any royalty. However, a lessee (lessee A in this example) could pay royalty on a volume greater than either its actual takes or its entitled share. Under this methodology, MMS would be made whole each month because it would receive royalty based on the total Federal production subject to the commingling approval each month. Therefore, an adjustment to the entitled volume, as discussed above for Example 1, would not be necessary. In Example 3, lessees would have to adjust their payments among themselves. As explained above, in instances where a lessee pays on “Pure Entitlements” such as Example 2, or “Proportionate Takes” such as Example 3, the lessee may take production that is more or less than its entitled share. In that case, a lessee would need to value its entitled share. The MMS believes that the best means of valuing the entitled share is to apply a volume weighted average of the royalty values to the volumes actually taken to the entitled share volumes undertaken. The MMS requests comments on any other alternatives for valuing such volumes. In addition, MMS is interested in receiving comments on these three examples describing alternative methodologies. The MMS is also interested in receiving comments on any other alternative methodologies. If you propose a methodology different from those discussed above, please use our example criteria and explain why you believe your methodology is the best alternative. In addition, MMS would like your input on how the various methodologies would affect your business practices, bookkeeping, etc. Dated: March 22, 2006. R.M. “Johnnie” Burton, Acting Assistant Secretary for Land and Minerals Management. [FR Doc. E6-5073 Filed 4-6-06; 8:45 am] BILLING CODE 4310-MR-P DEPARTMENT OF THE INTERIOR National Park Service 36 CFR Part 7 RIN 1024-AD45 Dry Tortugas National Park-Special Regulations AGENCY: National Park Service, Interior. ACTION: Proposed Rule. SUMMARY: The proposed rulemaking establishes special regulations for Dry Tortugas National Park. The proposed rule implements the act which established Dry Tortugas National Park and abolished Fort Jefferson National Monument. This proposed rule also implements provisions for visitor use and resource protection identified in the 2000 Final General Management Plan Amendment/Environmental Impact Statement for Dry Tortugas National Park, and the July 27, 2001 Record of Decision. This rulemaking complies with legislative mandates for protection of park resources in a unique and predominantly pristine ecosystem, and provides consistency with State fishing rules. This proposed rule would:
(1)Remove obsolete regulations established for Fort Jefferson National Monument;
(2)protect, monitor, and study the region's recognized importance to fisheries habitats by limiting the area, extent, and methods of recreational fishing within portions of the park's boundaries by implementing a Research Natural Area (RNA);
(3)clarify the authority of the superintendent to regulate fishing, boating, and permitted activities, specifically in established management zones including the RNA; and establish a permit system for research and recreational users;
(4)strengthen protection of nationally significant coral reef and other marine resources by regulating vessel operation, anchoring and human activity;
(5)provide enhanced protection for shipwrecks consistent with state and federal law; and
(6)provide for greater protection of water quality by restricting discharges into the water of the park. Definitions have also been added to clarify terminology. DATES: Comments must be received by June 6, 2006. ADDRESSES: You may submit comments, identified by the number RIN 1024-AD45, by any of the following methods: —Federal rulemaking portal: *http://www.regulations.gov* Follow the instructions for submitting comments. —E-mail NPS at *ever_superintendent@nps.gov.* Use RIN 1024-AD45 in the subject line. —Mail or hand delivery to: Superintendent, Everglades National Park, 40001 State Route 9336, Homestead, FL 33034-6733. —Fax to:
(305)242-7711. —For additional information see “Public Participation” under SUPPLEMENTARY INFORMATION below. —Written or oral comments will also be accepted during a public meeting to be held during the 60 day comment period. Date and location of the meeting will be determined at a later date and will be announced through local press releases and the park's Web site at *http://www.nps.gov/drto.* FOR FURTHER INFORMATION CONTACT: Jerry Case, Regulations Program Manager, National Park Service, 1849 C Street, NW., Room 7241, Washington, DC 20240. Phone:
(202)208-4206. E-mail: *jerry_case@nps.gov* . SUPPLEMENTARY INFORMATION: Background The National Park Service
(NPS)is proposing to establish special regulations for Dry Tortugas National Park. The current regulations at 36 CFR 7.27 were established for Fort Jefferson National Monument, the predecessor to Dry Tortugas National Park. Fort Jefferson National Monument was established by Presidential Proclamation No. 2112 in 1935 for the purpose of preserving the Dry Tortugas group of islands within the original 1845 Federal military reservation of islands, keys and banks. In 1980, Congress legislatively affirmed the Fort Jefferson National Monument. In 1992, Congress enacted Public Law 102-525 (16 U.S.C. 410xx *et seq.* ) abolishing the Fort Jefferson National Monument and establishing Dry Tortugas National Park in its place. Congress established the park “to preserve and protect for the education, inspiration and enjoyment of present and future generations nationally significant natural, historic, scenic, marine, and scientific values in South Florida.” In addition, Congress directed the Secretary of the Interior to manage the park for the following specific purposes, among others:
(1)To protect and interpret a pristine subtropical marine ecosystem, including an intact coral reef community.
(2)To protect populations of fish and wildlife, including (but not limited to) loggerhead and green sea turtles, sooty terns, frigate birds, and numerous migratory bird species.
(3)To protect the pristine natural environment of the Dry Tortugas group of islands.
(4)To protect, stabilize, restore and interpret Fort Jefferson, an outstanding example of nineteenth century masonry fortification.
(5)To preserve and protect submerged cultural resources.
(6)In a manner consistent with paragraphs
(1)through
(5)to provide opportunities for scientific research. 16 U.S.C. 410xx-1(b). The NPS developed the FGMPA/EIS, approved through a Record of Decision in July 2001, to comply with its statutory mandate to manage and protect Dry Tortugas National Park, and to respond to pressures from increased visitation and over-utilization of park resources. As described more fully in the FGMPA/EIS, despite the park's remote location approximately 70 miles west of Key West, Florida, there are indications that rapidly increasing visitor use is negatively impacting the resources and values that make Dry Tortugas National Park unique. Visitation to Dry Tortugas National Park increased 400% from 1994 through 2000, from 23,000 to 95,000 annual visitors. The resources and infrastructure at the park cannot sustain an uncontrolled growth rate of this magnitude while ensuring protection of park resources consistent with the park's legislative mandate. Scientific studies have documented significant declines in the size and abundance of commercially and recreationally important species of fish, particularly snapper, grouper, and grunts in Dry Tortugas National Park. These declines threaten the sustainability of reef fish communities both within the park and throughout the Florida Keys. Studies demonstrate that both the size and abundance of fish in the Tortugas area, including Dry Tortugas National Park, are essential to spawning and recruitment for regional fish stocks and the multi-billion dollar fishing and tourism industry in the Florida Keys. The population of south Florida is projected to increase from its current level of 6.3 million people to more than 12 million by 2050. With continued technological innovations such as global positioning systems and bigger, faster vessels, the increase in population and recreational tourism will likely result in more pressure on the resources in the Dry Tortugas. In recent years, interest has grown in the commercial sector to provide increased transportation to the park and to conduct additional activities in the park, which would bring many more visitors and greater impacts to the park. To address these issues, planning was started in 1998 to update the 1983 Fort Jefferson National Monument General Management Plan. Concerned that park resources would suffer as a result of increased use, park managers placed a moratorium on the authorization of new commercial activity in the park until a FGMPA/EIS could be completed and implemented. The FGMPA/EIS addressed specific issues including
(1)The protection of near-pristine resources such as coral reefs and sea grasses
(2)the conservation of fisheries and the protection of submerged cultural resources
(3)the management direction of commercial services; and
(4)the determination of appropriate levels and types of visitor use. After extensive public involvement and collaboration with State and Federal agencies, the NPS selected a management alternative that will afford a high level of protection to park resources as well as provide for appropriate types and levels of high quality visitor experiences. This will be accomplished by establishing management zones and visitor carrying capacity limits for specific locations in the park, using commercial services to direct and structure visitor use, and instituting a permit system for private as well as commercial boats in the RNA. A range of recreational and educational opportunities will be available for visitors as long as appropriate resource conditions are maintained. The quality of visitor experiences will be enhanced by maintaining the quality of resources while expanding visitor access throughout the park. The selected management action establishes zones that provide guidance for managing specific areas for desired resource conditions and visitor experiences. These zones are set forth in the FGMPA/EIS and Record of Decision approved on July 27, 2001. Most of the provisions in this proposed rulemaking are not associated with specific management zones but are applicable throughout the park. The exceptions are the provisions pertaining specifically to the RNA and Special Protection Zones. A brief description of these zones will follow. Natural/Cultural Zone This zone will provide visitors opportunities to experience the remoteness and natural character of the area. Opportunities for challenge and adventure will be high, compared to other zones. Facilities will generally not be appropriate. Boaters will need to be self-reliant. Appropriate activities will include snorkeling, scuba diving, swimming, boating, wildlife viewing, and recreational fishing. Anchoring will be permitted, however the use of mooring buoys may be required in certain areas if protection of sensitive resources warrants restricting anchors. Historic Preservation/Adaptive Use Zone This zone will provide interpretive, educational and recreational opportunities in order to convey to visitors the rich architectural and cultural history and natural resources of Garden Key and Fort Jefferson. Appropriate visitor activities will include tours, bird-watching, photography, swimming, snorkeling, scuba diving, camping, boating and recreational fishing. The management focus in this zone will be on maintaining and protecting historic and natural resources, mitigating impacts of human use, maintaining visitor facilities and providing for quality visitor experiences. Special Protection Zone This management zone will provide added protection for certain sensitive and exceptional resources. It will be used at times and in places throughout the park where sensitive wildlife or cultural resources are vulnerable to human disturbance, such as areas where sea turtles and seabirds are nesting or hatching. The superintendent will establish these zones when necessary to avoid unacceptable human impacts to these important resources. In such cases, only research activities will be allowed so long as such research activities do not impact these important resources. The public will be notified of any restrictions through one or more of the methods listed in § 1.7 of this chapter. Research Natural Area The RNA contains prime examples of natural resources, processes, and ecosystems including significant genetic resources, which have particular value for long-term observational studies. The RNA is managed to provide the greatest possible protection of resources. Recreational fishing and consumptive activities will not be allowed. Boaters will be required to use mooring buoys, and anchoring will be prohibited. Research activities in RNAs generally are restricted to non-manipulative research. Education and other activities that will not detract from an area's research values will be allowed. The RNA complements the adjacent 151 square nautical mile Tortugas Ecological Reserve in the waters of the Florida Keys National Marine Sanctuary, which has goals and regulations consistent with those of the RNA, including similar constraints on fishing. Scientific studies have found that Dry Tortugas National Park and the Tortugas region play a critical role in the function and dynamics of the larger Florida Keys coral reef ecosystem. The Tortugas includes spawning and nursery grounds for numerous fish. Larvae spawned from adult populations are spread by a persistent system of currents and eddies throughout the Florida Keys and up the Southeast coast which should help replenish depleted fish populations. Recent scientific studies of reef fisheries in Dry Tortugas National Park have also documented significant declines in the size and abundance of fish. As such, additional fishery management practices should be considered to enable the National Park Service to meet its statutory obligations under the National Park Service Organic Act (16 U.S.C. 1-4) and the requirement under Public Law 102-525 (16 U.S.C. 410xx *et seq.* ) to “protect and interpret a pristine subtropical marine ecosystem, including an intact coral reef community.” The RNA is a useful management tool to protect this pristine area as well as provide sanctuaries for species that have been substantially impacted by harvesting or habitat reduction, and to provide time for altered systems to recover. The RNA complements the adjacent Tortugas Ecological Reserve in the waters of the Florida Keys National Marine Sanctuary, with consistent goals and constraints on fishing. In order for the RNA and the Ecological Reserve to be biologically effective, the full range of land and marine habitats and their associated communities must be included in these areas. The National Marine Sanctuary's Tortugas Ecological Reserve, with its deep reefs and habitats, provides spawning areas for recreationally and commercially important fish while the National Park's RNA, with its shallow reefs and sea grass beds, provides nurseries and food for these fish and a multitude of other marine species. The rationale and benefits from establishment of the RNA are explained in greater detail in the ROD for the FGMPA/EIS. The proposed regulations pertaining to the RNA are intended to protect, restore, and enhance the living resources of the Park; contribute to the maintenance of natural assemblages of living resources for future generations; provide places for species dependent on such living resources to survive and propagate; achieve the objective of resource protection while facilitating uses not prohibited by other authorities; reduce conflicts between such compatible uses; and achieve the purposes of Public Law 102-525 (16 U.S.C. 410xx *et seq.* ) and the National Park Service Organic Act (16 U.S.C. 1-4) of 1916. The RNA also responds to the National Park Service's statutory authority (16 U.S.C. 5935) to provide opportunities for scientific research. The RNA and the larger Tortugas Ecological Reserve constitute a rare opportunity to cooperatively advance the science of marine ecology and marine resource management through direct observation of how resources within these areas respond to protection. Application of the research results in Park management programs will implement statutory direction to assure that resource management is enhanced by utilization of a broad program of the highest quality science and information (16 U.S.C. 5932). By designating the Research Natural Area, the National Park Service hopes to realize the area's full potential and offer outstanding opportunities for scientific research, visitor education and appreciation of an intact marine ecosystem. These goals are consistent with the objectives of Executive Order 13089 on Coral Reef Protection, Executive Order 13151 on Marine Protected Areas, the U.S. Coral Reef Task Force's March 2000 National Action Plan To Conserve Coral Reefs, and the 2004 U.S. Ocean Action Plan. Section-by-Section Analysis
(a)What terms do I need to know? In order to provide clarity and reduce possible confusion, fifteen definitions have been included in this paragraph. They include: Baitfish, cast net, designated anchorage, dip net, finfish, flat wake, guide fishing, live rock, lobster, marine life, not available for immediate use, ornamental tropical fish, permits, research natural area, and shrimp. Common fish names referred to in the regulations are further clarified by including scientific names.
(b)Are there recreational fishing restrictions that I need to know? Section 2.3(a) of this chapter adopts non-conflicting state fishing laws as part of the general NPS regulations applicable to all units of the National Park System unless regulations for particular park areas specify otherwise. For Dry Tortugas National Park, we are proposing additional requirements relating to fishing to achieve the park's purposes and implement planning decisions. Recreational fishing activities must comply with the state regulations unless those activities are otherwise restricted or prohibited in this section. Any reference to fishing in § 7.27 refers to recreational fishing, which is the taking, attempting to take, or possessing of fish for personal use. This is the same definition used by the State of Florida. All references to commercial fishing have been removed since this activity is already prohibited by 36 CFR 2.3(d)(4). The intent of paragraph (b)(1) is to allow the superintendent to impose restrictions or closures to protect a fish species within the park. In emergency situations, after consulting with the Florida Fish and Wildlife Conservation Commission, the superintendent may impose closures and establish conditions or restrictions necessary pertaining to fishing, including but not limited to species of fish that may be taken, seasons and hours during which fishing may take place, methods of taking, and size, bag and possession limits. In emergency situations where consultation in advance is not possible, the superintendent will consult within 24-hours of the initiation of closures or restrictions. Such emergency closures or restrictions are temporary in nature and may be for up to a 30-day period which may be extended once for up to an additional 30-day period by the superintendent. In other situations pertaining to fishing (i.e., non-emergency situations or the extension of emergency closures or restrictions beyond these two emergency periods), the superintendent shall consult with and obtain the concurrence of the Florida Fish and Wildlife Conservation Commission prior to acting. This provision of such closures and restrictions is in furtherance of the park's enabling legislation, which identifies protection of fish and wildlife as a purpose of its establishment. Paragraph (b)(2) identifies which fish can be taken and the legal methods for taking these fish. Fishing is limited to fin fish caught by a closely attended hook-and-line, bait fish caught by hook-and-line, cast nets or dip nets, and shrimp caught by dip nets or cast nets. These restrictions are not new. For the last 10 years, they have been enforced through the Superintendent's Compendium, which serves as a local management guide authorized by 36 CFR 1.5. Including these restrictions in this proposed regulation increases public awareness of their applicability. The previous restriction in 36 CFR 7.27(a)(5)(i), that limits cast nets to 12 feet in diameter, has been removed. There appears to be no compelling ecological or environmental reason to restrict the size of the cast nets. This proposed change would bring the park's regulations into conformity with state regulations. Paragraph (b)(3) identifies areas that are closed to fishing, including the RNA set forth in the 2001 ROD. Note, however, that paragraph (b)(3)(i) includes provisions that allow vessels to transit the RNA with legally harvested fish and fishing gear onboard. The provisions of paragraph (b)(3) are similar to the regulations applicable to the adjacent Tortugas Ecological Reserve within the Florida Keys National Marine Sanctuary (19 CFR 922.164; Florida Administrative Code 68B-6.003). The other closed areas are the waters inside the Garden Key moat and those within the designated swimming and snorkeling area. Fishing in these areas has been found to be incompatible with the identified visitor activities of boating, swimming and snorkeling, and for safety reasons in the helicopter-landing zone. Paragraph (b)(4) identifies specific prohibitions on fishing within the park. This paragraph lists certain fishing practices that differ from state of Florida regulations because they are incompatible with the goals and management direction of the Park. Paragraph (b)(4)(i) provides for complete protection of lobster within the park. All existing regulations found in 36 CFR 7.27 (a)(2) related to recreational fishing catch limits for lobster have been deleted. Prohibiting individuals from being in the water, when they have lobster onboard their vessel will further enhance the protection of park resources. This “prima facie” (at first view) evidence of violation is similar to the state of Florida regulations for the Biscayne Bay/Card Sound Spiny Lobster Sanctuary (FAC 68B-11.004), and for John Pennecamp Coral Reef State Park (FAC 68B-24.005). In Dry Tortugas National Park, the harvesting of lobster has been previously prohibited through the use of the superintendent's authority to regulate public use under 36 CFR 1.5. This prohibition was based on data collected by NPS biologists in a 1975 study, which indicated that legal harvesting was removing almost 90% of the lobster within the park. The Gulf of Mexico Fishery Management Council concurred with this finding and recommended that the park be established as a sanctuary for lobster to assist in maintaining a population for dispersal to areas outside the park. The proposed regulations in paragraph (b)(4)(ii), concerning possession and use of spearguns and other weapons are similar to regulations for the ecological reserves and sanctuary preservation areas found within the Florida Keys National Marine Sanctuary (15 CFR 922.164). The state of Florida has similar regulations restricting spearfishing activities found in FS 370.172. This proposed regulation expands on the current regulation, 36 CFR 7.27(a)(7), to include guns, bows and other similarly powered weapons. Paragraph (b)(4)(iii) recognizes that a gaff is a common fishing device used to retrieve legally taken fish from the water, while identifying other prohibited fishing devices. Although all natural resources within a national park area are protected from removal, disturbance, injury, or destruction by the general regulations found in 36 CFR 2.1, the provision at paragraph (b)(4)(iv) clarifies that ornamental tropical fish as well as all other forms of marine life within Dry Tortugas National Park are specifically protected. This additional level of protection will help achieve the congressional direction to protect a pristine subtropical marine ecosystem, including an intact coral reef community. The intent of (b)(4)(v) is to protect coral and other submerged resources from damage or injury by prohibiting the dragging or trawling of nets that are otherwise allowed to be used in the park. Paragraph (b)(4)(vi) prohibits the use of nets, other than dip or cast nets. The state of Florida general recreational fishing regulations allow other nets (bully nets, frame and push nets, beach or haul seines) which are inappropriate and harmful to various submerged resources in the park. Current regulations pertaining to sea turtles and conch found in 36 CFR 7.27(a)(1) and
(3)have been removed as unnecessary. The state of Florida has prohibited the taking of conch since 1985 and the general NPS regulations already adopt all non-conflicting state laws. Also, 36 CFR 7.27 (b)(4)(iv) will prohibit the taking of any ornamental tropical fish or other marine life. Because all sea turtles are currently listed as endangered or threatened species under the Endangered Species Act (16 U.S.C. 1538), it is unnecessary to duplicate prohibitions on their taking in these proposed regulations. Consistent with 36 CFR 5.3, paragraph (b)(5) requires that all fee-for-service guides (including guides for fishing and diving) obtain a permit or other NPS approved commercial use authorization. This permit system allows the park to better manage the fisheries and other park resources. The superintendent may limit the number of permitted guides within the park in order to conserve park resources and enhance the visitor experience.
(c)Are there any areas of the park closed to the public? Yes. Paragraph
(c)identifies areas that will be closed to public access. The Long/Bush Keys coral patch has been identified by biologists as “fused” staghorn (Acropora prolifera), a very rare hybrid of staghorn and elkhorn corals. This coral patch is threatened by a disease that is devastating staghorn and elkhorn coral in Biscayne National Park and the Florida Keys National Marine Sanctuary. Hospital and Long Keys have been closed for the last 10 years pursuant to the Superintendent's Compendium authority under 36 CFR 1.5. The largest remaining breeding colony of frigate birds in the United States lives on Long Key. The threatened masked booby and other sea birds live and breed on Hospital Key. Seasonal closures of Bush Key, East Key, and portions of Loggerhead Key for turtle and bird nesting will continue to be designated through the Superintendent's Compendium. See 36 CFR 1.5, 1.7.
(d)Is Loggerhead Key open to the public? Loggerhead Key will be open to the public subject to closures in certain areas and restrictions on certain activities. Loggerhead Key is the largest key in the park and contains an operating 150-foot lighthouse and other structures. Most of the island falls within the RNA; however, the center portion, containing the lighthouse and the other structures, falls within a historic preservation/adaptive use zone. Paragraph
(d)is consistent with the GMPA's decision to manage access and recreational activities on Loggerhead Key. To protect the natural and cultural resources of the island, as well as providing appropriate visitor experiences, the superintendent may impose terms and conditions on activities as necessary. The public will be notified of any such requirements through one or more of the methods listed in § 1.7 of this chapter. Such terms and conditions include, but are not limited to: docking, hiking restrictions, beach and swimming access, and other restrictions or closures necessary to conserve the natural and cultural resources of the island.
(e)Are there restrictions that apply to anchoring a vessel in the park? Paragraph
(e)addresses anchoring locations in general and anchoring prohibitions in the RNA. In the past, boaters have commonly anchored in sea grass beds and rubble bottom, which has resulted in unacceptable impacts to park resources. By restricting anchoring to authorized locations and prohibiting anchoring in all other areas, except in emergencies, degradation to coral reefs and seagrass meadows will be significantly reduced. Paragraph (e)(1) requires vessels to use mooring buoys. The RNA requires a higher level of protection of the marine ecosystem; thus the use of anchors in this area is prohibited. Paragraph (e)(2) specifies where vessels can anchor. The “designated anchorage” identified in the existing 36 CFR 7.27(b) is also revised to reflect the GMPA's management zone which calls for limiting anchorage of vessels from sunset to sunrise to the historic preservation/adaptive use zone around Garden Key. This “designated anchorage” is any sand or rubble bottom within one nautical mile of the Fort Jefferson Harbor Light. This area has been identified as the designated anchorage through the use of the Superintendent's Compendium for the previous 10 years. Paragraph (e)(4) imposes restrictions on anchoring by commercial fishing and shrimping vessels consistent with U.S. Coast Guard regulations found in 33 CFR 110.190.
(f)What vessel operations are prohibited? This paragraph addresses several issues of unsafe or otherwise prohibited vessel operations. The Fort Jefferson moat is closed to vessels to preserve and protect the historic scene and prevent damage to the structures. Vessel use in the moat could damage the walls of the fort and the integrity of the moat wall. Because of the large volume of vessel traffic in and around the Garden Key and Bird Key harbors, vessels are required to operate at a flat wake speed to prevent injury and damage resulting from boat wakes.
(g)What are the regulations regarding the discharge of materials in park waters? Paragraph
(g)provides for greater protection of the water quality within the park by generally prohibiting the discharge or deposit of any material or substance in park waters. The NPS wishes to maintain the highest possible water quality, free of bacterial and chemical contamination, for health and safety reasons as well as to maintain the park's environment. The NPS recognizes that certain discharges from vessels, such as bilge water, gray water and engine exhaust cannot be contained and some natural substances, such as fish parts, would have minimal impact on the water quality and therefore, would be allowed. These proposed regulations are similar to the regulations found in the Florida Keys National Marine Sanctuary (15 CFR 922.163). To address future issues regarding the discharge of materials or substances in park waters, the superintendent may impose further restrictions as necessary to protect park resources, visitors, or employees. The public will be notified of any changes through one or more methods listed in § 1.7 of this chapter.
(h)What are the permit requirements in the park? Paragraph
(h)requires that individuals obtain a permit from the superintendent in order to take part in any recreational activity occurring from a vessel within the park. By definition, permits may be issued in writing or be provided by oral (radio or telephone) authorization. Permitted activities may include anchoring, fishing, snorkeling, diving, wildlife viewing, photography, and the use of mooring buoys. In the RNA, no permits will be issued for anchoring or fishing as these are prohibited activities. Transiting the park by vessel without stopping to engage in research or recreational activities in the park shall not require a permit. All research conducted in the park also requires a permit. In the RNA, permits will only be issued for non-manipulative research (i.e., that which does not alter the existing condition).
(i)How are coral and other underwater features protected in the park? The coral formations within the park are internationally recognized as unique and significant. Public Law 102-525 establishing the park requires protection of the “pristine subtropical marine ecosystems, including an intact coral reef community.” Accordingly, this rule proposes new provisions for the protection of corals. Significant damage to coral can be caused by divers or snorkelers handling or standing on coral, especially in areas of heavy use. The NPS hopes to mitigate this damage by specifically prohibiting these actions, thereby resulting in persons being responsible for any damage that occurs to the coral through contact with their body or their equipment, such as fins, SCUBA tanks, gauges, or cameras. Language is also included to prohibit taking or removing corals and live rock. These provisions are similar to special regulations in the adjacent Florida Keys National Marine Sanctuary (15 CFR 922.163). Coral damage caused by vessels is often attributed to carelessness of vessel operators but can be avoided through more careful vessel operation. This proposed rule would make vessel operators responsible for preventing damage to corals by their vessels. This provision is similar to regulations in the adjacent Florida Keys National Marine Sanctuary (15 CFR 922.163). Paragraph (i)(3) would result in vessel operator responsibility for any damage to coral, seagrass, or any other underwater feature caused by their anchors or anchor parts. This is to prevent damage to fragile resources and assure the highest level of resource protection.
(j)What restrictions do I need to know when on or near shipwrecks found in the park? Paragraph
(j)provides specific protection for wrecked or abandoned craft and their cargo. Dry Tortugas National Park possesses one of the greatest concentrations of historically significant shipwrecks in North America, with some dating back to the 1600's. Within the park boundary, there have been more than 275 historically documented maritime casualties (shipwrecks, groundings, strandings), and human activity has left a significant material record. Protection of submerged cultural resources is a park priority, as well as a management purpose identified in Public Law 102-525 (16 U.S.C. 410xx *et seq.* ). Consistent with the park's statutory mandate, these regulations would provide specific protection for these cultural resources in addition to protections provided by regulations in 36 CFR 2.1, the Antiquities Act (16 U.S.C. 431-433) and its implementing regulations (43 CFR part 3), the Archeological Resources Protection Act (16 U.S.C. 470aa-mm) and its implementing regulations (43 CFR part 7), the Florida Historical Resources Act of 1997 (F.S. chap 267 rev 1993) and its implementing regulations (Florida Administrative Code 1A-31).
(k)Can aircraft land in the park? Paragraph
(k)allows the superintendent to manage aircraft operations by requiring users to obtain a permit to land seaplanes in the park. Seaplanes provide transportation for a significant number of park visitors. The NPS's general regulation at 36 part CFR 2.17 authorizes the superintendent to designate, through a special regulation, operating/landing locations within the park. It also prohibits aircraft from operating under power within 500 feet of swimming beaches, boat docks or piers unless designated through a special regulation. In order to reach the designated ramp for discharging passengers, seaplanes must taxi within 500 feet of dock areas. This paragraph will specify that a landing or takeoff may not be made within 500 feet of Garden Key or 500 feet of Bush Key (when it is closed for wildlife nesting), but taxiing is allowed when seaplane use is permitted. The existing regulations use a 300-yard limit for approaches, landings and takeoffs. The new limit of 500 feet will also bring these regulations in line with the general aircraft regulations provision of 500 feet. Compliance With Other Laws Regulatory Planning and Review (Executive Order 12866)
(1)This rule will not have an effect of $100 million or more on the economy. It will not adversely affect in a material way the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities. The NPS has completed the report “Cost-Benefit Analysis: Proposed Regulations Implementing the Final General Management Plan Amendment/Environmental Impact Statement for Dry Tortugas National Park.” (August 15, 2005.) This document may be viewed on the park's Web site at: *http://www.nps.gov/drto/pphtml/documents.html.* This conclusion is based on the fact that the proposed regulations would not impose significant impacts on any business. The regulations are based on the FGMPA/EIS or are restatements, clarifications, and definitions of previously established policies and regulations resulting in no change or effects on the economy.
(2)This rule will not create a serious inconsistency or otherwise interfere with an action taken or planned by another agency. Actions taken under this rule will not interfere with other agencies or local government plans, policies or controls. This rule is an agency specific rule.
(3)This rule will not materially affect budgetary effects of entitlements, grants, user fees, or loan programs or the rights or obligations of their recipients. This rule will have no effects on entitlements, grants, user fees, or loan programs or the rights or obligations of their recipients. No grants or other forms of monetary supplements are involved.
(4)This rule does not raise novel legal or policy issues. Regulatory Flexibility Act The Department of the Interior certifies that this rulemaking will not have a significant economic effect on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 *et seq.* ). This certification is based on a report entitled “Regulatory Flexibility Threshold Analysis: Proposed Regulations Implementing the Final General Management Plan Amendment/Environmental Impact Statement for Dry Tortugas National Park.” (January 27, 2005). This document may be viewed on the park's website at: *http://www.nps.gov/drto/pphtml/documents.html.* Small Business Regulatory Enforcement Fairness Act (SBREFA) This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This proposed rule: a. Does not have an annual effect on the economy of $100 million or more. b. Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions. c. Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises. Unfunded Mandates Reform Act This rule will not impose an unfunded mandate on State, local, or tribal governments or the private sector of more than $100 million per year. The rule will not have a significant or unique effect on State, local or tribal governments or the private sector. This rule is an agency specific rule and does not impose any other requirements on other agencies, governments, or the private sector. Takings (Executive Order 12630) In accordance with Executive Order 12630, the rule does not have significant takings implications. A taking implication assessment is not required. No taking of personal property will occur as a result of this rule. Federalism (Executive Order 13132) In accordance with Executive Order 13132, the rule does not have sufficient federalism implications to warrant the preparation of a Federalism Assessment. This proposed rule only applies to the use of NPS administered lands and waters. Both the State of Florida and the United States claim title to submerged lands located within the boundaries of the park established by Congress. Rather than addressing this issue through potentially protracted litigation, the State and the Department have entered into the “Management Agreement for Certain Submerged Lands in Monroe County, Florida, Located within Dry Tortugas National Park” approved by the Florida Governor and Cabinet on August 9, 2005 and by the Secretary of the Interior on December 20, 2005. This document may be viewed on the park's Web site at *http://nps.gov/drto/pphtml/documents.html.* The proposed regulations are consistent with the requirements of the Management Agreement. Once final, the regulations shall be reviewed at least every five years, and as appropriate, revised, and reissued, based upon the results of the research program conducted pursuant to the Management Agreement as well as the information contained in the management plan status report prepared by the National Park Service detailing the status and activities of the implementation of the FGMPA/EIS. Information and data collected regarding the effectiveness and performance of the RNA will also be reviewed and evaluated. Under adaptive management, NPS may consider changes in the RNA, including boundary adjustments and modifications to the protection and conservation management strategies applicable to the RNA. Consistent with the Management Agreement, the National Park Service will obtain the concurrence of the Board of Trustees of the Internal Improvement Trust Fund regarding that portion of the regulations pertaining to the management of submerged lands within the park. Further, consistent with the Management Agreement, the National Park Service shall submit for review to the Florida Fish and Wildlife Conservation Commission proposed regulations as well as any proposed revisions or amendments thereto. Civil Justice Reform (Executive Order 12988) In accordance with Executive Order 12988, the Office of the Solicitor has determined that this rule does not unduly burden the judicial system and meets the requirements of sections 3(a) and 3(b)(2) of the Order. Paperwork Reduction Act This regulation does not require an information collection from 10 or more parties and a submission under the Paperwork Reduction Act is not required. An OMB Form 83-I is not required. National Environmental Policy Act The Department of the Interior, National Park Service
(NPS)has prepared a Final General Management Plan Amendment/Environmental Impact Statement (FGMPA/EIS) for Dry Tortugas National Park, Monroe County, Florida. Five alternatives were evaluated for guiding the management of the park over the next 15 to 20 years. The alternatives incorporate various zoning applications and other management provisions to ensure resource protection and quality visitor experience conditions. The environmental consequences anticipated from implementation of each alternative are addressed in the FGMPA/EIS. Impacts to natural and cultural resources, visitor experience, socioeconomic environment, and park operations/facilities are analyzed. The FGMPA/EIS was prepared in conjunction with planning by the Florida Keys National Marine Sanctuary (FKNMS or sanctuary), the Florida Fish and Wildlife Conservation Commission (FFWCC) and the Gulf of Mexico Fishery Management Council (GMFMC) to establish a Tortugas Ecological Reserve
(TER)in State and Federal waters adjacent to Dry Tortugas National Park. State and Federal approvals for the TER are complete and implementation of the ecological reserve is underway. After careful consideration of legislative mandates, visitation trends, environmental impacts, relevant scientific studies, and comments from the public and agencies, the National Park Service will implement Alternative C as described in the Final GMPA/EIS issued in January 2001 (with some minor clarifications, as listed in Appendix A, Errata). This alternative best accomplishes the legislated purposes of Dry Tortugas National Park and the statutory mission of the National Park Service to provide long-term protection of park resources and values while allowing for visitor use and enjoyment. It also furthers the objectives of Executive Order 13089, Coral Reef Protection. The goal of the selected action is to afford a high level of protection to park resources and provide for appropriate types and levels of high quality visitor experiences. This will be accomplished through management zoning, establishing visitor carrying capacity for specific locations in the park, using commercial services to direct and structure visitor use, and instituting a permit system for private boaters. A wide range of recreational and educational opportunities will be available to visitors provided that appropriate resource conditions are maintained. Visitor experiences will be enhanced due to expanded access throughout the park and higher quality resources to enjoy. Several consultations took place with government agencies during the EIS process, including the Florida Keys National Marine Sanctuary, the Florida Fish and Wildlife Conservation Commission, and the Gulf of Mexico Fishery Management Council. Pursuant to section 7 requirements of the Endangered Species Act, the NPS is consulting with the U.S. Fish and Wildlife Service and the National Marine Fisheries Service regarding potential effects of the proposed regulations on federally listed species. The NPS Southeast Regional Director signed the Record of Decision
(ROD)on July 27, 2001. In reaching a decision, NPS carefully considered the comments and concerns expressed by the public throughout the EIS process. The EIS and ROD are available online at: *http://www.nps.gov/drto/pphtml/documents.html* or at Everglades National Park, as indicated above under the heading FOR FURTHER INFORMATION CONTACT . The National Park Service has also carefully reviewed available information regarding current environmental conditions at Dry Tortugas National Park and environmental effects of the selected action. Based on this review, the National Park Service has found no significant new circumstances or information relevant to environmental concerns and bearing on the selected action or its impacts. Therefore, the National Park Service has concluded that supplementation of the 2001 Environmental Impact Statement is unnecessary. Government-to-Government Relationship With Tribes In accordance with the President's memorandum of April 29, 1994, “Government to Government Relations with Native American Tribal Governments” (59 FR 22951) and 512 DM 2, we have evaluated potential effects on federally recognized Indian tribes and have determined that there are no potential effects. Clarity of Rule Executive Order 12866 requires each agency to write regulations that are easy to understand. We invite your comments on how to make this rule easier to understand, including answers to questions such as the following:
(1)Are the requirements in the rule clearly stated?
(2)Does the rule contain technical language or jargon that interferes with its clarity?
(3)Does the format of the rule (grouping and order of sections, use of headings, paragraphing, etc.) aid or reduce its clarity?
(4)Would the rule be easier to read if it were divided into more (but shorter) sections? (A “section” appears in bold type and is preceded by the symbol “§” and a numbered heading; for example § 7.27, Dry Tortugas National Park.)
(5)Is the description of the rule in the SUPPLEMENTARY INFORMATION section of the preamble helpful in understanding the proposed rule? What else could we do to make the rule easier to understand? Send a copy of any comments that concern how we could make this rule easier to understand to: Office of Regulatory Affairs, Department of the Interior, Room 7229, 1849 C Street, NW., Washington, DC 20240. You may also e-mail the comments to this address: *Exsec@ios.doi.gov.* Drafting Information The primary authors of this regulation are: Bonnie Foist, Lynda Lancaster, Bob Howard, Bill Wright, Brien Culhane, and Elaine Hall of Everglades National Park, Don Jodrey, Department of the Interior Office of the Solicitor, and Cliff McCreedy, National Park Service, Natural Resource Stewardship and Science and Jerry Case, Regulations Program Manager, NPS, Washington, DC. Public Participation If you wish to comment, you may submit your comments by any one of several methods. You may mail or hand deliver comments to Superintendent, Everglades National Park, 40001 State Route 9336, Homestead, FL 33034-6733 or fax to
(305)242-7711. Comments may also be submitted on the Federal rulemaking portal: *http://www.regulations.gov* Follow the instructions for submitting comments. Please identify comments by: RIN 1024-AD45 or sent by e-mail to *ever_superintendent@nps.gov* . Use RIN 1024-AD45 in the subject line. Written or oral comments will also be accepted during a public meeting to be held during the 60-day comment period. Date and location of the meeting will be determined at a later date and will be announced through local press releases and the park's Web site at *http://www.nps.gov/drto* . Our practice is to make comments, including names and addresses of respondents, available for public review during regular business hours. Individual respondents may request that we withhold their home address from the rulemaking record, which we will honor to the extent allowable by law. If you wish us to withhold your name and/or address, you must state this prominently at the beginning of your comment. However, we will not consider anonymous comments. We will make all submissions from organizations or businesses, and from individuals identifying themselves as representatives or officials or organizations or businesses, available for public inspection in their entirety. List of Subjects in 36 CFR Part 7 District of Columbia, National Parks, Reporting and recordkeeping requirements. In consideration of the foregoing, the National Park Service proposes to amend 36 CFR part 7 as follows: PART 7—SPECIAL REGULATIONS, AREAS OF THE NATIONAL PARK SYSTEM 1. The authority for part 7 continues to read as follows: Authority: 16 U.S.C. 1, 3, 9a, 460(q), 462(k); Sec. 7.96 also issued under D.C. Code 8-137
(1981)and D.C. Code 40-721 (1981). 2. § 7.27 is revised to read as follows: § 7.27 Dry Tortugas National Park
(a)*What terms do I need to know?* The following terms apply to this section only: *Baitfish* means: ballyhoo (family Exocoetidae and genus Hemiramphus), other genus may be included in this family; minnow (families Cyprinodontidae, Peciliidae, or Aherinidae); mojarra (family Gerreidae); mullet (family Mugilidae); pilchard (family Clupeidae); pinfish (family Sparidae, genus Lagodon). *Cast net* means a type of circular falling net, weighted on its periphery, which is thrown and retrieved by hand, measuring 14 feet or less stretched length (stretched length is defined as the distance from the horn at the center of the net with the net gathered and pulled taut, to the lead line). *Designated anchorage* means any area of sand or rubble bottom within one nautical mile of the Fort Jefferson Harbor Light. *Dip net* means a hand held device for obtaining bait, the netting of which is fastened in a frame. A dip net may not exceed three
(3)feet at its widest point. *Finfish* means a member of subclasses Agnatha, Chondrichthyes, or Osteichthyes. *Flat wake speed* means the minimum required speed to leave a flat wave disturbance close astern a moving vessel yet maintain steerageway, but in no case in excess of 5 statute miles per hour. *Guide operations* means the activity, of a person, partnership, firm, corporation, or other entity to provide services for hire to visitors of the park. This includes but is not limited to fishing, diving, snorkeling, and wildlife viewing. *Live rock* means any living marine organism or assemblage thereof attached to a hard substrate,including dead coral or rock but not individual mollusk shells. *Lobster* means Shovelnosed or Spanish Lobster (Scyllarides aequinoactialis), Slipper lobster (Parribacus antarcticus), Caribbean spiny lobster (Panulirus argus), or spotted spiny lobster (Panulirus guttatus). *Marine life* means sponges, sea anenomes, corals, jellyfish, sea cucumbers, starfish, sea urchins, octopus, crabs, shrimp, barnacles, worms, conch, and other animals belonging to the Phyla Porifera, Cnidaria, Echinodermata, Mollusca, Bryozoa, Brachiopoda, rthropoda, Platyhilmenthes, and Annelida. *Not available for immediate* use means not readily accessible for immediate use, e.g., by being stowed unbaited in a cabin, locker or similar storage area, or being securely covered and lashed to a deck or bulkhead, or in a rod holder with hooks and lures removed. *Ornamental tropical fish* usually means a brightly colored fish, often used for aquarium purposes and which lives in close relationship to coral communities, belonging to the families Syngathidae, Apogonidae, Pomacentridae, Scaridae, Blennidae, Callionymidae, Gobiidae, Ostraciidae, or Diodontidae. *Permit, in the case of 36 CFR Part 7.27,* means an authorization in writing or orally (e.g., via radio or telephonically). *Research Natural Area*
(RNA)at Dry Tortugas means the 46-square-statute-mile area in the northwest portion of the park enclosed by connecting with straight lines the adjacent points of 82°51′ W and 24°36′ N, and 82°58′ W and 24°36′ N west to the park boundary, but excluding:
(1)The approximately 3-square nautical mile adaptive use zone designated by the superintendent with notice to the public through one or more methods listed in § 1.7 of this chapter;
(2)the designated anchorage;
(3)Garden Key, Bush Key and Long Key; or
(4)the central portion of Loggerhead key including the lighthouse and associated buildings. *Shrimp* means a member of the genus Farfantepenaeus, Penaeus sp.
(b)*Are there recreational fishing restrictions that I need to know?*
(1)After consulting with and obtaining the concurrence of the Florida Fish and Wildlife Conservation Commission, based on management objectives and the park fisheries research, the superintendent may impose closures and establish conditions or restrictions necessary pertaining to fishing, including but not limited to species of fish that may be taken, seasons and hours during which fishing may take place, methods of taking, and size, bag and possession limits. The public will be notified of any changes through one or more methods listed in § 1.7 of this chapter. In emergency situations, after consulting with the Florida Fish and Wildlife Conservation Commission, the superintendent may impose temporary closures and establish conditions or restrictions necessary, but not exceeding 30 days in duration which may be extended for one additional 30 day period, pertaining to fishing, including but not limited to species of fish that may be taken, seasons and hours during which fishing may take place, methods of taking, and size, bag and possession limits. In emergency situations where consultation in advance is not possible, the superintendent will consult with the Florida Fish and Wildlife Conservation Commission within 24-hours of the initiation of the temporary closure or restriction.
(2)Only the following may be legally taken from Dry Tortugas National Park:
(i)Fin fish by closely attended hook-and-line;
(ii)Baitfish by closely attended hook and line, dip net, or cast net and limited to 5 gallons per vessel per day;
(iii)Shrimp may be taken by dip net or cast net.
(3)The following waters and areas are closed to fishing:
(i)The Research Natural Area (RNA). Fish and fishing gear may be possessed aboard a vessel in the RNA, provided such fish can be shown not to have been harvested from within, removed from, or taken within, the RNA as applicable, by being stowed in a cabin, locker, or similar storage area prior to entering and during transit through the RNA, provided further that such vessel is in continuous transit through the RNA. Gear capable of harvesting fish may be aboard a vessel in the RNA, provided such gear is not available for immediate use when entering and during transit through the RNA and no presumption of fishing activity shall be drawn therefrom.
(ii)Garden Key moat;
(iii)Within any swimming and snorkeling areas designated by buoys;
(iv)Within 50 feet of the historic coaling docks;
(v)Helipad areas, including the gasoline refueling dock.
(4)The following are prohibited:
(i)The possession of lobster within the boundaries of the park; unless the individual took the lobster outside park waters and has the proper State/Federal licenses and permits. Vessels with legally taken lobster aboard which was taken outside the park may not have persons overboard in park waters. The presence of lobster aboard a vessel in park waters, while one or more persons from such vessel are overboard, shall constitute prima facie evidence that such lobsters were harvested from park waters in violation of this chapter.
(ii)The taking of fish by pole spear, Hawaiian sling, rubber powered, pneumatic, or spring loaded gun or similar device known as a speargun, air rifles, bows and arrows, powerheads, or explosive powered guns. Operators of vessels within the park must break down and store all described weapons so such gear is not available for immediate use.
(iii)The use of a hand held hook, gig, gaff, or snare is prohibited, except that a gaff may be used for landing a fish lawfully caught by hook and line when consistent with all requirements provided herein including size and species restrictions.
(iv)The taking, possession or touching of any ornamental tropical fish or marine life except as expressly provided in this section.
(v)Dragging or trawling a dip net or cast net.
(vi)The use of nets except as provided in (b)(2)(ii) and (iii).
(5)Engaging in guide operations (fee for service), including but not limited to fishing and diving, except in accordance with the provisions of a permit, contract, or other commercial use authorization, or other written agreement with the United States and administered under this chapter is prohibited.
(c)*Are there any areas of the park closed to the public?* Yes. The following areas are closed to the public:
(1)The elkhorn (Acropora palmata) and staghorn (Acropora prolifera) patches adjacent to and including the tidal channel southeast of Long and Bush Keys and extending to 100 yards from the exterior edge of either patch.
(2)Hospital and Long Keys.
(3)Areas designated by the superintendent in accordance with § 1.5 and noticed to the public through one or more of the methods listed in § 1.7 of this chapter.
(d)*Is Loggerhead Key open to the public?* The superintendent shall designate areas on Loggerhead Key as closed for public use, establish closures or restrictions on and around the waters of Loggerhead Key, and establish conditions for docking, swimming or wading, and hiking as necessary to protect park resources, visitors, or employees. The public will be notified of any such designations, closures or restrictions through one or more methods listed in § 1.7 of this chapter.
(e)*Are there restrictions that apply to anchoring a vessel in the park?*
(1)Anchoring in the Research Natural Area
(RNA)is prohibited.
(2)All vessels in the RNA must use designated mooring buoys.
(3)Anchoring between sunset and sunrise is limited to the designated anchorage area at Garden Key.
(4)Except in cases of emergency involving danger to life or property, no vessel engaged in commercial fishing or shrimping shall anchor in any of the channels, harbors or lagoons in the vicinity of Garden Key, Bush Key, or the surrounding shoals outside of Bird Key Harbor. Emergencies may include, but are not limited to, adverse weather conditions, mechanical failure, medical emergencies or other public safety situations.
(f)*What vessel operations are prohibited?* The following vessel operations are prohibited:
(1)Operating a vessel in the Fort Jefferson Moat;
(2)Operating a vessel above a flat wake speed in the Garden Key and Bird Key Harbor areas.
(g)*What are the regulations regarding the discharge of materials in park waters?*
(1)The discharge or deposit of materials or substances of any kind within the boundaries of the park is prohibited, except for the following:
(i)Fish, fish parts, chumming material, or bait used or produced incidental to and while conducting recreational fishing activities;
(ii)Graywater from sinks, consisting of only water and food particles;
(iii)Vessel cooling water, engine exhaust, or bilge water when not contaminated by oil or other substances.
(2)The superintendent may impose further restrictions as necessary to protect park resources, visitors, or employees. The public will be notified of any such requirements through one or more methods listed in § 1.7 of this chapter.
(h)*What are the permit requirements in the park?*
(1)A permit, issued by the superintendent, is required for all non-commercial vessels for which occupants are engaged in recreational activities, including all activities in the RNA. Permitted recreational activities include but are not limited to use of mooring buoys, snorkeling, diving, wildlife viewing, and photography.
(2)A permit, issued by the superintendent, is required for a person, group, institution, or organization conducting research activities in the park.
(3)Vessels transiting the park without interruption shall not require a permit.
(i)*How are corals and other underwater natural features protected in the park?*
(1)Taking, possessing, removing, damaging, touching, handling, harvesting, disturbing, standing on, or otherwise injuring coral, coral formation, seagrass or other living or dead organisms, including marine invertebrates, live rock, and shells, is prohibited.
(2)Vessel operators are prohibited from allowing their vessel to strike, injure, or damage coral, seagrass, or any other immobile organism attached to the seabed.
(3)Vessel operators are prohibited from allowing an anchor, chain, rope or other mooring device to be cast, dragged, or placed so as to strike, break, abrade, or otherwise cause damage to coral formations, sea grass, or submerged cultural resources.
(j)*What restrictions do I need to know when on or near shipwrecks found in the park?* No person may destroy, molest, remove, deface, displace, or tamper with wrecked or abandoned vessels of any type or condition, or any cargo pertaining thereto; and, the survey, inventory, dismantling, or recovery of any such wreck or cargo within the boundaries of the park is prohibited unless permitted in writing by the superintendent.
(k)*How are aircraft operations restricted in the park?*
(1)Landing an aircraft in Dry Tortugas National Park may occur only in accordance with a permit issued by the superintendent pursuant to § 1.6 of this chapter.
(2)When landing is authorized by permit, the following requirements also apply:
(i)Aircraft may be landed on the waters within a radius of 1 mile of Garden Key, but a landing or takeoff may not be made within 500 feet of Garden Key, or within 500 feet of Bush Key when Bush Key is closed to the public to protect nesting wildlife. The operation of aircraft is also subject to § 2.17, except that seaplanes may be taxied closer than 500 feet to the Garden Dock while enroute to or from the designated ramp, north of the dock.
(ii)Seaplanes may be moored or brought up on land only on the designated beach, north of the Garden Key dock. Matthew J. Hogan, Deputy Assistant Secretary for Fish and Wildlife and Parks. [FR Doc. 06-3295 Filed 4-6-06; 8:45 am]
Connectionstraces to 38
Traces to 38 documents
U.S. Code
- Rule making§ 553
- Congressional declaration of purpose§ 4321
- Disposition of commodities to prevent waste§ 1431
- General powers of Corporation§ 714b
- Statements or entries generally§ 1001
- Short title§ 201
- Congressional statement of purpose§ 1801
- EXPEDITED PROCESSING OF REQUESTS FOR JAPANESE IMPERIAL GOVERNMENT RECORDS.§ 804
- Purposes§ 3501
- Definitions§ 1101
- Royalty terms and conditions, interest, and penalties§ 1721
- Establishment§ 410xx
- Administration§ 410xx–1
- Repealed. Pub. L. 113–287, § 7, Dec. 19, 2014, 128 Stat. 3272§ 5935
- Repealed. Pub. L. 113–287, § 7, Dec. 19, 2014, 128 Stat. 3272§ 5932
- Prohibited acts§ 1538
- Congressional findings and declaration of purpose§ 470aa
- Definitions§ 601
- Repealed. Pub. L. 113–287, § 7, Dec. 19, 2014, 128 Stat. 3272§ 1
register
CFR
- Trainees and interns.§ 62.22
- Training records.§ 141.101
- Dry Tortugas National Park.§ 7.27
- Fishing.§ 2.3
- Closures and public use limits.§ 1.5
- Additional activity regulations by Sanctuary area.§ 922.164
- Preservation of natural, cultural and archeological resources.§ 2.1
- Business operations.§ 5.3
- Tortugas Harbor, in vicinity of Garden Key, Dry Tortugas, Fla.§ 110.190
- Prohibited activities---Sanctuary-wide.§ 922.163
public-private-law
23 references not yet in our index
- 7 CFR 1496
- 7 CFR 1496.5(a)(1)
- 7 CFR 799
- 7 CFR 3014
- 7 CFR 1496.7
- 22 CFR 62
- 8 CFR 214.2(m)
- 5 USC 601-612
- 5 USC 801-808
- 22 USC 1431-1442
- Pub. L. 105-277
- 30 CFR 205
- Pub. L. 104-185
- 110 Stat. 1700
- Pub. L. 104-200
- Pub. L. 97-451
- 36 CFR 7
- Pub. L. 102-525
- 16 USC 1-4
- 19 CFR 922.164
- 16 USC 431-433
- 43 CFR 3
- 43 CFR 7
Citation graph
cites case law
Notices
Proposed rule; supplemental
Cite7 CFR 1496
Cite7 CFR 1496.5(a)(1)
Cite7 CFR 799
Cites 61 · showing 12Cited by 0 across 0 sources