Notices. Final rule
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BILLING CODE 4910-59-C DEPARTMENT OF THE INTERIOR Minerals Management Service 30 CFR Parts 250, 251, and 280 RIN 1010-AD23 Oil, Gas, and Sulphur Operations and Leasing in the Outer Continental Shelf (OCS)—Recovery of Costs Related to the Regulation of Oil and Gas Activities on the OCS AGENCY: Minerals Management Service (MMS), Interior. ACTION: Final rule. SUMMARY: MMS is implementing regulations which impose new fees to process certain plans, applications, and permits. The service fees will offset MMS's costs of processing these plans, applications, and permits.
DATES: *Effective Date:* This regulation becomes effective on September 1, 2006. FOR FURTHER INFORMATION CONTACT: Martin Heinze, Program Analyst, Offshore Minerals Management, Office of Planning, Budget and International Affairs at
(703)787-1010. SUPPLEMENTARY INFORMATION: *Background:* Federal agencies are generally authorized to recover the costs of providing services to non-Federal entities through the provisions of the Independent Offices Appropriation Act of 1952 (IOAA), 31 U.S.C. 9701. The Act requires implementation through rulemaking. There are several policy documents that provide MMS guidance on the process of charging applicants for service costs. The governing language concerning cost recovery can be found in OMB Circular No. A-25 which states in part, “The provisions of this Circular cover all Federal activities that convey special benefits to recipients beyond those accruing to the general public. * * * When a service (or privilege) provides special benefits to an identifiable recipient beyond those that accrue to the general public, a charge will be imposed (to recover the full cost to the Federal Government for providing the special benefit, or the market price). * * * The general policy is that user charges will be instituted through the promulgation of regulations.” The Department of the Interior
(DOI)Manual mirrors this policy (330 DM 1.3 A.). In this rulemaking, “cost recovery” means reimbursement to MMS for its costs of performing a service by charging a fee to the identifiable applicant/beneficiary of the service. Further guidance is provided by Solicitor's Opinion M-36987, “BLM's Authority to Recover Costs of Minerals Document Processing” (December 5, 1996). As explained in that Solicitor's Opinion, some costs, such as the costs of programmatic environmental studies and programmatic environmental assessments in support of a general agency program are not recoverable because they create an “independent public benefit” rather than a specific benefit to an identifiable recipient. On March 25, 2005, MMS published an advance notice of proposed rulemaking
(ANPR)(70 FR 15246) to solicit comments on the Recovery of Costs Related to the Regulation of Oil and Gas Activities on the OCS. MMS addressed comments received in the ANPR in the proposed rule. On November 14, 2005, MMS published a proposed rule in the **Federal Register** titled, “Oil, Gas, and Sulphur Operations and Leasing in the Outer Continental Shelf (OCS)—Recovery of Costs Related to the Regulation of Oil and Gas Activities on the OCS,” (70 FR 69118). Through the proposed rule, MMS alerted the public that we seek to recover the costs of processing certain permits and applications through the rulemaking process. MMS believes that cost recovery for the MMS-provided service of reviewing and approving applications and permits is warranted because such service provides an identifiable recipient (the applicant) with direct benefits beyond those received by the general public. The proposed rule invited comments, recommendations, and specific remarks on a program of collecting fees for reviewing the following plans and permit applications regulated by 30 CFR parts 250, 251, and 280: • Exploration Plan (§ 250.211). • Development and Production Plan or Development Operations Coordination Document (§ 250.241). • Deep Water Operations Plan (§ 250.292). • Conservation Information Document (§ 250.296). • Application for Permit to Drill (APD; Form MMS-123). • Application for Permit to Modify (APM; Form MMS-124). • Facility Production Safety System Applications (installation and modification § 250.802). • Platform Applications (required by § 250.905 for the installation, modification/repair of a platform). • New Pipeline Application (Lease Term) § 250.1000. • Pipeline Application Modification (Lease Term and ROW § 250.1000). • Pipeline Repair Notification (§ 250.1008). • Surface Commingling and Measurement Application (§ 250.1204). • Application to Remove a Platform or Other Facility (required by § 250.1727). • Application to Decommission a Pipeline (Lease Term and ROW § 250.1751, § 250.1752). • Application for Permit to Conduct Geological or Geophysical Exploration for Mineral Resources or Scientific Research in the Outer Continental Shelf (Form MMS-327). This was inadvertently listed in the proposed rule, at 70 FR 69121, as Geological and Geophysical (G&G) Permits: Permit for Geophysical Exploration for Mineral Resources or Scientific Research on the Outer Continental Shelf (Form MMS-328); Permit for Geological Exploration for Mineral Resources or Scientific Research on the OCS (Form MMS-329). However, the correct form numbers were used in the actual proposed regulatory language. • Application for Permit to Conduct Geological or Geophysical Prospecting for Mineral Resources or Scientific Research in the Outer Continental Shelf Related to Minerals Other than Oil, Gas, and Sulphur (Form MMS-134). This was inadvertently listed in the proposed rule, at 70 FR 69121, as Sand and Gravel Permits: Permit for Geophysical Prospecting for Mineral Resources or Scientific Research on the Outer Continental Shelf Related to Minerals Other than Oil, Gas, and Sulphur (Form MMS-135); Permit for Geological Prospecting for Mineral Resources or Scientific Research on the Outer Continental Shelf Related to Minerals Other than Oil, Gas, and Sulphur (Form MMS-136). However, the correct form numbers were used in the actual proposed regulatory language. Summary of Changes to the Proposed Rule This final rule differs from the proposed rule published on November 14, 2005 (70 FR 69118), in the following respects: We added language in the fee table at § 250.125 to clarify that there is no fee for revisions to Exploration Plans, Development and Production Plans, and Development Operations Coordination Documents. We also added to the fee table a definition of the term “component” which is used in determining the fee level for New Facility Production Safety System Applications. We also corrected the fee table by inserting the existing fee of $2,350 for Pipeline Right-of-Way
(ROW)Grant Applications in place of the lower fee that was erroneously inserted in the table in the proposed rule. The fee was addressed in MMS's final rule published on August 25, 2005 (70 FR 49871), and it was not our intent to revisit this fee, but only make the fee table inclusive of all pertinent fees. We added a new paragraph
(c)to § 250.125 to address how MMS will handle the service fee for the verbal approval of an Application for Permit to Modify
(APM)(Form MMS-124). Verbal approvals are occasionally given for an APM. Any action that would be considered a verbal permit approval will require either a paper permit application to follow the verbal approval or an eWell submittal within 72 hours. Payment must be received with the completed application. We also added a new section (§ 250.126 General payment instructions) which contains general instructions for paying service fees. This section explains how lessees and operators can pay service fees using both electronic funds transfer and non-electronic funds transfer. This section clearly states that electronic funds transfer is the preferred payment method. We added fee language to § 250.1202(a) and § 250.1203(b) for liquid hydrocarbon and gas measurement applications. In the fee tables in both the preamble (70 FR 69120-69121) and at § 250.125 of the proposed rule, we listed the fees for “Complex Surface Commingling and Measurement Application” and “Simple Surface Commingling and Measurement Application.” However, while we cited in the tables to the section addressing surface commingling (§ 250.1204) and included the fee language at that section, we inadvertently left out the table citations to the measurement sections (§ 250.1202—Liquid hydrocarbon measurement—and § 250.1203—Gas measurement) and failed to include the fee language at those sections. We have concluded that the language in the tables in the proposed rule gave sufficient notice of our intent to charge the fees indicated therein for measurement applications. The citation in the tables in the proposed rule to the surface commingling section obviously did not account for our stated intent in the tables to charge the same fee for measurement applications, which are related to surface commingling but are addressed at the two preceding sections, § 250.1202 and § 250.1203. We have concluded that companies that engage in surface commingling and measurement activities are sufficiently aware of these sections that our statements in the tables were sufficient notice of our intent to charge measurement fees. We moved the definitions of simple and complex applications for surface commingling and measurement actions from § 250.1204(a) to § 250.1202(a), and cross-referenced the definitions in § 250.1203(b) and § 250.1204(a). We also revised the definition of a simple application by removing from the definition the following actions: platform removals; application cancellations; facility measurement point
(FMP)status changes and meter updates. These actions were removed from the definition of simple application because they are not applications and do not require approval. Finally, we have added citations to § 250.1202(a) and § 250.1203(b) in the fee table at § 250.125 for complex and simple surface commingling and measure applications. We deleted the final sentence from proposed § 251.5 and from proposed § 280.12. The sentences simply stated that the time period for extensions was defined on the permit forms. We concluded that the permit forms are clear and there is no need to detail the content of those forms in the regulations. Comments on the Proposed Rule MMS received two comment letters from industry and none from the general public. One letter was from a consortium of eight trade organizations that represents numerous companies involved in the United States (U.S.) oil and gas industry. The other letter was from a large integrated oil and gas operator. Industry respondents stated that the total of lease bonuses, rentals, and royalty fees paid by industry adequately compensate MMS and the Federal Government for any service provided in the issuance of permits and that the proposed rule seeks to “double dip.” Additionally industry respondents stated that the proposed fees seem contrary to the administration's national energy policy. They maintained that every dollar collected by MMS for the processing of applications and permits is a dollar that would not be spent producing energy on the OCS. MMS works closely with industry to ensure that energy production on the OCS will continue to contribute significantly to the nation's energy supply. For example, MMS provides incentives for industry production of offshore oil and gas, such as royalty relief for deep-water and deep-gas development. The proposed service fees would not affect existing incentives and would only marginally add to the cost of operating offshore. The relevant mineral leasing law (the Outer Continental Shelf Lands Act (OCSLA)), which granted the Secretary the authority to issue leases offshore on the OCS, was not enacted as a cost recovery mechanism. The monies collected as bonuses, rentals, and royalties under those leases are not intended to compensate the government for administrative costs. They instead reflect the value of the national interest in the resource and property. When a lease is issued, the working interest is conveyed to the lessee(s) to whom it is issued. The government reserves a royalty interest, which is a cost-free share of the production or the value of the production. Under the bidding system that is characteristic of most of the leases, the lessee pays a bonus to obtain the lease that is the result of competitive bidding. During the primary term of a lease and before the lease goes into production (in other words, during the time the lessor is not receiving any benefit from its retained royalty interest), the lessee must pay annual rentals. All of these obligations (royalties, bonus payments, and rentals) reflect the value of the lessor's ( *i.e.* , the Federal government's) property interest in the leased minerals. None of these obligations was ever intended to compensate the government for its administrative costs. In a related remark, industry respondents asserted that a document cited by MMS, OMB Circular No. A-25, provides that new user charges should not be imposed in cases where other revenues from individuals already finance the government services provided to them. The commenter appears to be citing paragraph 7.c. of OMB Circular No. A-25, which addresses excise taxes. The paragraph states that “[n]ew user charges should not be proposed in cases where an excise tax currently finances the government services that benefit specific individuals” (giving the example of a gasoline tax to finance highway construction). Royalties, bonus payments, and rentals are not taxes, but payments that reflect the value of the resources. Reference to this paragraph of the OMB Circular is thus inappropriate. One commenter challenged the methodology for calculating the fees and questioned whether the Fiscal Year 2004 baseline was a typical year, and whether there was outside quality control or auditing conducted over the cost estimation methodology. Additionally, the commenter stated that the inclusion of “indirect costs” was not appropriate since MMS would have incurred these costs whether or not a particular application was submitted. MMS believes that its cost recovery methodology was both reasonable and reliable and that external quality control or auditing was not necessary. MMS began tracking work activities in its financial system in FY 2003, thus FY 2004 was the second full year MMS costed its work activities within its financial system. We used the following guidance documents to determine the full cost of cost recovery activities: • Statement of Federal Financial Accounting Standards, Managerial Cost Accounting Concepts and Standards for the Federal Government (SFFAS #4); • OMB Circular A-25; and, • DOI cost recovery guidance, from the DOI Manual (330 DM 1.3A.). MMS employees code their time biweekly to work activities in the DOI Quicktime timekeeping system. Managers certify each employee's time each pay period and are responsible for accurate timekeeping. Additionally, MMS managers revalidated employees' time for FY 2004 during the fee calculation phase. When necessary, costs were adjusted if an employee's time was incorrectly coded. The activity-based costing
(ABC)methodology used by MMS is appropriate for our cost recovery needs and operating environment. MMS only included those costs (both direct and indirect) that supported the processing of plans, permits, and other applications. Especially in light of the managerial review of employees' costs, MMS has confidence in the cost data used to calculate the full cost of processing applications in this rule. The commenter also stated that MMS should not have included indirect costs in the calculation because we would have incurred these indirect costs without the additional marginal cost of a particular application. As discussed above, OMB Circular A-25 directs agencies to recover full costs for providing special benefits. It also explains that “[f]ull cost includes all direct and indirect costs to any part of the Federal Government of providing a good, resource or service.” One comment suggested that MMS should improve its cost effectiveness. MMS will continue in its efforts to reduce costs through initiatives such as OCS Connect, a multi-year initiative to automate major business transactions and plan/application/permit reviews, resulting in more timely decisions. If business process changes significantly affect costs, MMS will recalculate its cost of service and propose new fees through the rulemaking process. One commenter requested a joint MMS-industry working group to address the fee collection process. The joint working group would find the best method to reduce the administrative burden for both MMS and industry. Suggestions included annual or other types of cumulative payments rather than the “piecemeal approach” in the proposed rule. MMS is directed by OMB Circular No. A-25 (section 6.a.2.(c)) to receive payment in advance of processing an application. Cumulative payments or billing for past work is not possible. To simplify payments, MMS has implemented an online payment system through the U.S. Treasury, called PAY.GOV, for existing fees. This payment system will include the fees in this final rule. For applications submitted electronically through eWell or future e-Gov systems, an interactive credit card or Automated Clearing House
(ACH)payment method will be used. The PAY.GOV Web site can be accessed through links on the MMS Offshore webpage at: *http://www.mms.gov/offshore/* or directly through PAY.GOV at: *https://www.pay.gov/paygov/* . In light of these new payment options, MMS does not see the need for a working group at this time. However we are always open to industry suggestions. One commenter stated that the rule would significantly impact small businesses, including more than 70 percent of the companies that operate on the OCS. The commenter stated that all expenses and fees have business impacts. The fees paid to MMS for processing actions are directly proportional to the OCS activity by a company. Larger companies generally hold more leases which translates into a greater number of exploration plans, development permits, production, development and conservation activities, designation of operator, lease assignments, Applications for Permit to Drill (APDs), Applications for Permit to Modify (APMs), facility and structure permits, etc.—in short a greater number of activities for which fees will be charged under this rule and thus payment of a larger total number of fees. The smaller companies that operate on the OCS tend to buy already developed leases and generally don't undertake significant exploration activities and they are thus not subject to many of the fees in this rule. Smaller companies tend to engage in both fewer actions and simpler types of actions, thereby incurring fewer fee costs. The most common applications submitted by small businesses have modest fees: APMs ($110), facility permit modifications ($80 to $530) and APDs ($1,850). As explained in the section discussing the Regulatory Flexibility Act, under Procedural Matters in this preamble, the greatest effect of fees in this rule on the offshore revenues of production companies would be less than 0.5 percent, and the effect on the vast majority of companies would be much less than that. In fact the impact on more than 87 percent of companies is estimated to be less than 0.1 percent of OCS revenues. MMS consulted with the Small Business Administration
(SBA)Office of Advocacy about the impact of OCS cost recovery fees. The Office of Advocacy concurred with the MMS assessment that the rule will not have a significant effect on a substantial number of small entities. A commenter challenged the MMS position that a “Statement of Energy Effects” is not needed, pursuant to Executive Order (E.O.) 13211, because MMS does not consider the rule to be a significant energy action. This rule meets none of the criteria for a significant energy action. E.O. 13211 Section 4(b) defines a significant energy action: “(b) Significant energy action” means any action by an agency (normally published in the **Federal Register** ) that promulgates or is expected to lead to the promulgation of a final rule or regulation, including notices of inquiry, advance notices of proposed rulemaking, and notices of proposed rulemaking: (1)(i) that is a significant regulatory action under E.O. 12866 or any successor order; and,
(ii)is likely to have a significant adverse effect on the supply, distribution, or use of energy; or
(2)that is designated by the Administrator of the Office of Information and Regulatory Affairs as a significant energy action. Moreover, E.O. 12866 defines a significant regulatory action, at section 3:
(f)”Significant regulatory action” means any regulatory action that is likely to result in a rule that may:
(1)Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities;
(2)Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency;
(3)Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or
(4)Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in this Executive Order.” Of the above quoted thresholds, the only one that could potentially be at issue is paragraph (f)(3), regarding user fees. While this rule will have an effect on the level of fees paid to MMS it will not have a material budgetary impact because the agency's overall operating appropriation will not change substantially. As these fees are appropriated for MMS operations, the amount appropriated for those operations from the General Fund of the Treasury are being decreased. Thus, this rule only marginally changes the amount contributing to the MMS appropriation from fees relative to amounts contributing to the appropriation from the General Fund. Therefore, this rule is not a significant regulatory action under E.O. 12866. This rule also does not meet the additional threshold that must be met to trigger the need for a “Statement of Energy Effects” under E.O. 13211, because these fees are not “likely to have a significant adverse effect on the supply, distribution, or use of energy.” Compared to the normal costs of operations on the OCS, for example, drilling a well, the fees established in this rule are not significant. MMS' economic analysis showed that the effect of these fees on the offshore revenues of production companies will be under 0.5 percent, and the effect on most companies will be much smaller. These are not amounts that are likely to have an adverse effect on any company's economic standing and, consequently, they are not likely to adversely affect the supply, distribution, or use of energy. Thus a “Statement of Energy Effects” is not required. MMS received inquires on how a component is defined for new and modified facility production safety system applications. The service fee table was modified to include a definition of component. The definition follows the American Petroleum Institute's
(API)definition: A component is a piece of equipment or ancillary system that is protected by one or more of the safety devices required by API RP 14C (incorporated by reference as specified in § 250.198). Examples of components are; Wellheads, Flowlines, Injection Lines, Headers, Separators (Pressure Vessels) Atmospheric Vessels, Fired Vessels, Pumps, Compressors, Pipelines, Heat Exchangers, Buildings, as well as the Emergency Support System (Emergency Shutdown Stations, Pneumatic Fusible Element System and/or other electrical based fire detection systems). Procedural Matters Regulatory Planning and Review (Executive Order (E.O.) 12866) This document is not a significant rule as determined by the Office of Management and Budget
(OMB)and is not subject to review under E.O. 12866.
(1)This rule would not have an annual effect of $100 million or more on the economy. It would 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. This proposed rule would establish fees based on cost recovery principles. Based on historical filings, we project the fees would raise revenue by approximately $16.5 million annually.
(2)This rule would not create a serious inconsistency or otherwise interfere with action taken or planned by another agency because the costs incurred are for specific MMS services and other agencies are not involved in these aspects of the OCS Program.
(3)This rule would not materially alter the budgetary impact of entitlements, grants, user fees or loan programs or the rights or obligations of their recipients. The only one of these that could potentially be at issue is user fees. While this rule will have an effect on the level of fees paid to MMS, it will not have a material budgetary impact because the agency's overall operating appropriation will not change substantially. As these fees are appropriated for MMS operations, the amount appropriated for those operations from the General Fund of the Treasury are being decreased. Thus, this rule only marginally changes the amount contributing to the MMS appropriation from fees relative to the amounts contributing to the appropriation from the General Fund.
(4)This rule would not raise novel legal or policy issues. Regulatory Flexibility Act
(RFA)The Department, in consultation with the Office of Advocacy of the Small Business Administration (SBA), determined that this final rule will not have a significant economic effect on a substantial number of small entities under the RFA (5 U.S.C. 601 *et seq.* ). The changes in this final rule will affect lessees and operators of leases and pipeline right-of-way holders on the OCS. This includes approximately 130 active Federal oil and gas lessees and 115 pipeline right-of-way holders. Small lessees that operate under this final rule fall under the SBA's North American Industry Classification System (NAICS) codes 211111, Crude Petroleum and Natural Gas Extraction, and 213111, Drilling Oil and Gas Wells. For these NAICS code classifications, a small company is one with fewer than 500 employees. Based on these criteria, an estimated 70 percent of these companies are considered small. This final rule, therefore, will affect a substantial number of small entities. The fees proposed in the final rule will not have a significant economic effect on a substantial number of small entities because the fees are small compared to normal costs of doing business on the OCS. For example, depending on water depth and well depth, cost estimates for drilling a well range from $5 million to $23 million. Thus, the proposed fees, ranging from $80 to $24,200, are dwarfed by the millions of dollars that industry already commits to exploration, development, production, and transportation. MMS conducted an analysis to study the potential impacts of these fees on small entities. MMS charted the 2004 production of all companies operating on the OCS. Using corresponding rolling annual average prices, MMS calculated each company's Federal OCS gross revenues. Using MMS's Technical Information Management System internal database (and other databases) with 2004 company data, plan/application/permit fees were calculated and compared with each company's calculated gross revenue. With the exception of one company, the fees in this rule would be less than 0.5 percent of the offshore revenues of any production company. The analysis showed that the effects of these fees on the offshore revenues of the vast majority of companies (more than 87 percent) would be less than 0.1 percent. The only exception was for one company for which the analysis indicated an effect of 0.98 percent in 2004. Looking at this company's Federal OCS production and permit/plan activity in 2005 the fee impact would be 0.18 percent. This company's OCS revenues increased by a factor of 4 between 2004 and 2005. We examined the reasons for the projected impact on this company and found that it was new to the Federal OCS. It is engaging in exploration and development activities before producing significant amounts of hydrocarbons. Only a few companies will find themselves in this position and MMS thus expects that the norm will be an impact of under 0.1 percent. Even an impact up to 0.5 percent is not significant compared to the normal cost of operating on the OCS. MMS cannot project revenue data for most of the 115 pipeline right-of-way holders. However, construction and operation of a pipeline on the OCS requires significant monetary investments and highly sophisticated technical expertise, and yields multimillion dollar revenues. Fees of a few thousand dollars will not significantly impact the finances of companies engaged in these activities. The only new fees for pipeline right-of-way holders in this rule are for pipeline modification ($3,650) and pipeline repair notification ($340). Pipeline right-of-way holders already pay a comparable existing fee of $2,350 for a pipeline grant application. We have concluded that the new fees for pipeline right-of-way holders will not have a significant economic effect on those entities. Additionally, the service fees established in the rule will apply in a non-discriminatory way to both large and small firms. Applying for MMS services provides a benefit to both a large and small applicant if the applicant decides to operate on the OCS. Your comments are important. The Small Business and Agriculture Regulatory Enforcement Ombudsman and 10 Regional Fairness Boards were established to receive comments from small businesses about Federal agency enforcement actions. The Ombudsman will annually evaluate the enforcement activities and rate each agency's responsiveness to small business. If you wish to comment on the actions of MMS, call 1-888-734-3247. You may comment to SBA without fear of retaliation. Disciplinary action for retaliation by an MMS employee may include suspension or termination from employment with DOI. Small Business Regulatory Enforcement Fairness Act (SBREFA) This final rule is not a major rule under the SBREFA (5 U.S.C. 804(2)). This final rule:
(a)Will 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)Will 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. Leasing on the U.S. OCS is limited to residents of the U.S. or companies incorporated in the U.S. This final rule will not change that requirement. Unfunded Mandates Reform Act
(UMRA)This final 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 final rule will not have a significant or unique effect on State, local, or tribal governments or the private sector. A statement containing the information required by the UMRA (2 U.S.C. 1531 *et seq.* ) is not required. This is because the final rule will not affect State, local, or tribal governments, and the effect on the private sector is small. Takings Implication Assessment
(TIA)(Executive Order 12630) The final rule is not a governmental action capable of interference with constitutionally protected property rights. Thus, MMS did not need to prepare a TIA according to E.O. 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights. Federalism (Executive Order 13132) With respect to E.O. 13132, this final rule will not have federalism implications. This final rule will not substantially and directly affect the relationship between the Federal and State governments. To the extent that State and local governments have a role in OCS activities, this final rule will not affect that role. Civil Justice Reform (Executive Order 12988) With respect to E.O. 12988, MMS finds that this final rule will not unduly burden the judicial system and does meet the requirements of sections 3(a) and 3(b)(2) of the E.O. MMS consulted with the DOI Office of the Solicitor throughout this drafting process. Paperwork Reduction Act
(PRA)This rulemaking relates to 30 CFR part 250, subparts A, B, D, E, F, H, I, J, L, P, and Q; 30 CFR part 251; and 30 CFR part 280. The final rulemaking affects the information collections for these regulations but would not change the approved burden hours; it would just add the associated fees. Therefore, OMB has ruled that there is no change in the information collection and that MMS does not need to make a formal submission by Form OMB 83-I for this rulemaking. We will submit Form OMB 83-C to add the fees in each collection when the rule becomes effective. OMB has approved the information collections for the affected regulations at:
(1)30 CFR part 250; subpart A, 1010-0114; subpart B, 1010-0151; subpart D, 1010-0141; subpart E, 1010-0067; subpart F, 1010-0043; subpart H, 1010-0059; subpart I, 1010-0149; subpart J, 1010-0050; subpart L 1010-0051; subpart P, 1010-0086, subpart Q, 1010-0142;
(2)30 CFR part 251, 1010-0048; and
(3)30 CFR part 280, 1010-0072. National Environmental Policy Act
(NEPA)of 1969 MMS has determined that this final rule is administrative and involves only procedural changes addressing fee requirements. Therefore, it is categorically excluded from environmental review under section 102(2)(C) of the NEPA, pursuant to 516 DM 2.3A and 516 DM 2, Appendix 1, Item 1.10. In addition, the final rule does not involve any of the 10 extraordinary circumstances for exceptions to categorical exclusions listed in 516 DM 2, Appendix 2. Pursuant to Council on Environmental Quality regulations (40 CFR 1508.4) and the environmental policies and procedures of the DOI, the term 'categorical exclusions' means categories of action which an agency has determined do not individually or cumulatively have a significant effect on the human environment and therefore require neither an environmental assessment nor an environmental impact statement. Effects on the Nation's Energy Supply (Executive Order 13211) Executive Order 13211 requires the agency to prepare a Statement of Energy Effects when it takes a regulatory action that is identified as a significant energy action. This final rule is not a significant energy action, and therefore would not require a Statement of Energy Effects because it:
(1)Is not a significant regulatory action under E.O. 12866;
(2)Is not likely to have a significant adverse effect on the supply, distribution, or use of energy; and
(3)Has not been designated by the Administrator of the Office of Information and Regulatory Affairs, OMB, as a significant energy action. Consultation and Coordination With Indian Tribal Governments (Executive Order 13175) In accordance with E.O. 13175, this final rule will not have tribal implications that impose substantial direct compliance costs on Indian tribal governments. List of Subjects 30 CFR Part 250 Administrative practice and procedure, Continental shelf, Environmental impact statements, Environmental protection, Government contracts, Investigations, Oil and gas exploration, Penalties, Pipelines, Public lands—mineral resources, Public lands—rights-of-way, Reporting and recordkeeping requirements, Sulphur. 30 CFR Part 251 Continental shelf, Freedom of information, Oil and gas exploration, Public lands—mineral resources, Reporting and recordkeeping requirements, Research. 30 CFR Part 280 Continental shelf, Public lands—mineral resources, Reporting and recordkeeping requirements, Research. Dated: June 16, 2006. R.M. “Johnnie” Burton, Director, Minerals Management Service, Exercising the delegated authority of the Assistant Secretary, Land and Minerals Management. For the reasons stated in the preamble, the Minerals Management Service
(MMS)amends 30 CFR parts 250, 251, and 280 as follows: PART 250—OIL AND GAS AND SULPHUR OPERATIONS IN THE OUTER CONTINENTAL SHELF 1. The authority citation for 30 CFR part 250 continues to read as follows: Authority: 43 U.S.C. 1331 *et seq.,* 31 U.S.C. 9701. 2. In § 250.125, revise the table in paragraph (a); revise paragraph (b); and add new paragraph
(c)to read as follows: § 250.125 Service fees.
(a)* * * Service Fee Table Service—processing of the following Fee amount 30 CFR citation Change in Designation of Operator $150 § 250.143. Suspension of Operations/Suspension of Production (SOO/SOP) Request $1,800 § 250.171. Exploration Plan
(EP)$3,250 for each surface location, no fee for revisions § 250.211. Development and Production Plan
(DPP)or Development Operations Coordination Document
(DOCD)$3,750 for each well proposed, no fee for revisions § 250.241(e). Deepwater Operations Plan. $3,150 § 250.292(p). Conservation Information Document $24,200 § 250.296(a). Application for Permit to Drill (APD; Form MMS-123) $1,850 Initial applications only, no fee for revisions § 250.410(d); § 250.411; § 250.460; § 250.513(b); § 250.515; § 250.1605; § 250.1617(a); § 250.1622. Application for Permit to Modify (APM; Form MMS-124) $110 § 250.460; § 250.465(b); § 250.513(b); § 250.515; § 250.613(b); § 250.615; § 250.1618(a); § 250.1622; § 250.1704(g). New Facility Production Safety System Application for facility with more than 125 components $4,750 A component is a piece of equipment or ancillary system that is protected by one or more of the safety devices required by API RP 14C (incorporated by reference as specified in § 250.198). (Additional fee of $12,500 will be charged if MMS deems it necessary to visit a facility offshore; and $6,500 to visit a facility in a shipyard) § 250.802(e). New Facility Production Safety System Application for facility with 25-125 components $1,150 (Additional fee of $7,850 will be charged if MMS deems it necessary to visit a facility offshore; and $4,500 to visit a facility in a shipyard) § 250.802(e). New Facility Production Safety System Application for facility with fewer than 25 components $570 § 250.802(e). Production Safety System Application—Modification with more than 125 components reviewed $530 § 250.802(e). Production Safety System Application—Modification with 25-125 components reviewed $190 § 250.802(e). Production Safety System Application—Modification with fewer than 25 components reviewed $80 § 250.802(e). Platform Application—Installation—under the Platform Verification Program $19,900 § 250.905(k). Platform Application—Installation—Fixed Structure Under the Platform Approval Program $2,850 § 250.905(k). Platform Application—Installation—Caisson/Well Protector $1,450 § 250.905(k). Platform Application—Modification/Repair $3,400 § 250.905(k). New Pipeline Application (Lease Term) $3,100 § 250.1000(b). Pipeline Application—Modification (Lease Term) $1,800 § 250.1000 (b). Pipeline Application—Modification
(ROW)$3,650 § 250.1000 (b). Pipeline Repair Notification. $340 § 250.1008 (e). Pipeline Right-of-Way
(ROW)Grant Application $2,350 § 250.1015. Pipeline Conversion of Lease Term to ROW $200 § 250.1015. Pipeline ROW Assignment $170 § 250.1018. 500 Feet From Lease/Unit Line Production Request $3,300 § 250.1101. Gas Cap Production Request $4,200 § 250.1101. Downhole Commingling Request $4,900 § 250.1106. Complex Surface Commingling and Measurement Application $3,550 § 250.1202(a); § 250.1203(b); § 250.1204(a). Simple Surface Commingling and Measurement Application $1,200 § 250.1202(a); § 250.1203(b); § 250.1204(a). Voluntary Unitization Proposal or Unit Expansion $10,700 § 250.1303. Unitization Revision $760 § 250.1303. Application to Remove a Platform or Other Facility $4,100 § 250.1727. Application to Decommission a Pipeline (Lease Term) $1,000 § 250.1751(a) or § 250.1752(a). Application to Decommission a Pipeline
(ROW)$1,900 § 250.1751(a) or § 250.1752(a).
(b)Payment of the fees listed in paragraph
(a)of this section must accompany the submission of the document for approval or be sent to an office identified by the Regional Director. Once a fee is paid, it is nonrefundable, even if an application or other request is withdrawn. If your application is returned to you as incomplete, you are not required to submit a new fee when you submit the amended application.
(c)Verbal approvals are occasionally given in special circumstances. Any action that will be considered a verbal permit approval requires either a paper permit application to follow the verbal approval or an electronic application submittal within 72 hours. Payment must be made with the completed paper or electronic application. 3. Add a new § 250.126 to read as follows: § 250.126 General payment instructions.
(a)*Payment of fees associated with electronic applications* . If you submitted an application through eWell or OCS Connect, you must use the interactive payment feature in that system.
(b)*Payment of fees for applications not submitted electronically* . For applications not submitted electronically through eWell or OCS Connect, MMS prefers you to use credit card or automated clearing house
(ACH)payments through the PAY.GOV Web site.
(1)*Payment using PAY.GOV Web site* . The PAY.GOV Web site may be accessed through links on the MMS Offshore Web site at: *http://www.mms.gov/offshore/* homepage or directly through PAY.GOV at: *https://www.pay.gov/paygov/* . If paying by credit card or ACH, you must include a copy of the PAY.GOV confirmation receipt page with your application.
(2)MMS will also accept payments by any of the payment means listed in this section. Your payment must be payable to: “Department of the Interior—Minerals Management Service” or “DOI-MMS” and must include your MMS company number. MMS prefers that you use these payment documents in the order presented:
(i)Commercial check drawn on a solvent bank;
(ii)Certified check;
(iii)Cashier's check;
(iv)Money order; or
(v)Bank draft drawn on a solvent bank or a Federal Reserve check.
(c)Terms used in this section have the following meanings:
(1)Automated Clearing House or ACH is a type of electronic fund transfer using the ACH network.
(2)PAY.GOV is a U.S. Treasury payment system used by MMS to receive credit card and ACH payments for processing OCS plans, permits, and other related applications or documents. 4. In § 250.198, in the table in paragraph (e), revise the entry for API RP 14C to read as follows: § 250.198 Documents incorporated by reference.
(e)* * * Title of documents Incorporated by reference at * * * * * API RP 14C, Recommended Practice for Analysis, Design, Installation and Testing of Basic Surface Safety Systems for Offshore Production Platforms, Seventh Edition, March 2001, API Stock No. G14C07 § 250.125(a), § 250.802(b), (e)(2); § 250.803(a), (b)(2)(i), (b)(4), (b)(5)(i), (b)(7), (b)(9)(v), (c)(2); § 250.804(a), (a)(6); § 250.1002(d); § 250.1004(b)(9); § 250.1628(c), (d)(2); § 250.1629(b)(2), (b)(4)(v); and § 250.1630(a). * * * * * * * 5. In § 250.211, add a new paragraph
(d)to read as follows: § 250.211 What must the EP include?
(d)*Service fee* . You must include payment of the service fee listed in § 250.125. 6. In § 250.241, add a new paragraph
(e)to read as follows: § 250.241 What must the DPP or DOCD include?
(e)*Service fee* . You must include payment of the service fee listed in § 250.125. 7. In § 250.292, revise paragraphs
(n)and (o); and add a new paragraph
(p)to read as follows: § 250.292 What must the DWOP contain?
(n)A discussion of any new technology that affects hydrocarbon recovery systems;
(o)A list of any alternate compliance procedures or departures for which you anticipate requesting approval; and
(p)Payment of the service fee listed in § 250.125. 8. In § 250.296, add the following sentence at the end of paragraph (a): § 250.296 When and how must I submit a CID or a revision to a CID?
(a)* * * The submission of your CID must be accompanied by payment of the service fee listed in § 250.125. 9. In § 250.410, revise the introductory paragraph and paragraph
(d)to read as follows: § 250.410 How do I obtain approval to drill a well? You must obtain written approval from the District Manager before you begin drilling any well or before you sidetrack, bypass, or deepen a well. To obtain approval, you must:
(d)Submit the following to the District Manager:
(1)An original and two complete copies of Form MMS-123, Application for Permit to Drill (APD), and Form MMS-123S, Supplemental APD Information Sheet;
(2)A separate public information copy of forms MMS-123 and MMS-123S that meets the requirements of § 250.127; and
(3)Payment of the service fee listed in § 250.125. 10. In § 250.465, revise paragraph (b)(1) to read as follows: § 250.465 When must I submit an Application for Permit to Modify
(APM)or an End of Operations Report to MMS?
(b)* * *
(1)Your APM (Form MMS-124) must contain a detailed statement of the proposed work that would materially change from the approved APD. The submission of your APM must be accompanied by payment of the service fee listed in § 250.125; 11. In § 250.513, revise the last sentence in paragraph (a), the introductory language of paragraph (b), and paragraphs (b)(3) and (b)(4) and adding paragraph (b)(5) to read as follows: § 250.513 Approval and reporting of well-completion operations.
(a)* * * If the completion has not been approved or if the completion objective or plans have significantly changed, approval for these operations must be requested on Form MMS-124, Application for Permit to Modify (APM).
(b)You must submit the following with Form MMS-124 (or with Form MMS-123; Form MMS-123S):
(3)For multiple completions, a partial electric log showing the zones proposed for completion, if logs have not been previously submitted;
(4)When the well-completion is in a zone known to contain H <sup>2</sup> S or a zone where the presence of H <sup>2</sup> S is unknown, information pursuant to § 250.490 of this part; and
(5)Payment of the service fee listed in § 250.125. 12. In § 250.613, revise the last sentence in paragraph (a), the introductory language of paragraph (b), and paragraphs (b)(2) and (b)(3) and adding paragraph (b)(4) to read as follows: § 250.613 Approval and reporting for well-workover operations.
(a)* * * Approval for these operations must be requested on Form MMS-124, Application for Permit to Modify.
(b)You must submit the following with Form MMS-124:
(2)When changes in existing subsurface equipment are proposed, a schematic drawing of the well showing the zone proposed for workover and the workover equipment to be used;
(3)Where the well-workover is in a zone known to contain H <sup>2</sup> S or a zone where the presence of H <sup>2</sup> S is unknown, information pursuant to § 250.490 of this part; and
(4)Payment of the service fee listed in § 250.125. 13. In § 250.802, add a new paragraph (e)(7) to read as follows: § 250.802 Design, installation, and operation of surface production safety systems.
(e)* * *
(7)The service fee listed in § 250.125. The fee you must pay will be determined by the number of components involved in the review and approval process. 14. In § 250.905, revise the introductory language and table headings and add paragraph
(k)to the table to read as follows: § 250.905 How do I get approval for the installation, modification, or repair of my platform? The Platform Approval Program requires that you submit the information, documents, and fee listed in the following table for your proposed project. Required submittal Required contents Other requirements * * * * * * *
(k)Payment of the service fee listed in § 250.125 15. In § 250.1000, revise paragraph
(b)to read as follows: § 250.1000 General requirements.
(b)An application must be accompanied by payment of the service fee listed in § 250.125 and submitted to the Regional Supervisor and approval obtained before:
(1)Installation, modification, or abandonment of a lease term pipeline;
(2)Installation or modification of a right-of-way (other than lease term) pipeline; or
(3)Modification or relinquishment of a pipeline right-of way. 16. In § 250.1008, revise paragraph
(e)to read as follows: § 250.1008 Reports.
(e)The lessee or right-of-way holder must notify the Regional Supervisor before the repair of any pipeline or as soon as practicable. Your notification must be accompanied by payment of the service fee listed in § 250.125. You must submit a detailed report of the repair of a pipeline or pipeline component to the Regional Supervisor within 30 days after the completion of the repairs. In the report you must include the following:
(1)Description of repairs;
(2)Results of pressure test; and
(3)Date returned to service. 17. In § 250.1202, revise paragraph (a)(1) to read as follows: § 250.1202 Liquid hydrocarbon measurement.
(a)* * *
(1)Submit a written application to, and obtain approval from, the Regional Supervisor before commencing liquid hydrocarbon production, or making any changes to the previously-approved measurement and/or allocation procedures. Your application (which may also include any relevant gas measurement and surface commingling requests) must be accompanied by payment of the service fee listed in § 250.125. The service fees are divided into two levels based on complexity as shown in the following table. Application type Actions
(i)Simple applications Applications to temporarily reroute production (for a duration not to exceed six months); Production tests prior to pipeline construction; Departures related to meter proving, well testing, or sampling frequency.
(ii)Complex applications Creation of new facility measurement points (FMPs); Association of leases or units with existing FMPs; Inclusion of production from additional structures; Meter updates which add buy-back gas meters or pigging meters; Other applications which request deviations from the approved allocation procedures. 18. In § 250.1203, revise paragraph (b)(1) to read as follows: § 250.1203 Gas measurement.
(b)* * *
(1)Submit a written application to, and obtain approval from, the Regional Supervisor before commencing gas production, or making any changes to the previously-approved measurement and/or allocation procedures. Your application (which may also include any relevant liquid hydrocarbon measurement and surface commingling requests) must be accompanied by payment of the service fee listed in § 250.125. The service fees are divided into two levels based on complexity, see table in § 250.1202(a)(1). 19. In § 250.1204, revise paragraph (a)(1) to read as follows: § 250.1204 Surface commingling.
(a)* * *
(1)Submit a written application to, and obtain approval from, the Regional Supervisor before commencing the commingling of production or making any changes to the previously approved commingling procedures. Your application (which may also include any relevant liquid hydrocarbon and gas measurement requests) must be accompanied by payment of the service fee listed in § 250.125. The service fees are divided into two levels based on complexity, see table in § 250.1202(a)(1). 20. In § 250.1617, revise paragraph
(a)to read as follows: § 250.1617 Application for permit to drill.
(a)Before drilling a well under an approved Exploration Plan, Development and Production Plan, or Development Operations Coordination Document, you must file Form MMS-123, APD, with the District Manager for approval. The submission of your APD must be accompanied by payment of the service fee listed in § 250.125. Before starting operations, you must receive written approval from the District Manager unless you received oral approval under § 250.140. 21. In § 250.1618, revise the section heading and paragraph
(a)to read as follows: § 250.1618 Application for permit to modify.
(a)You must submit requests for changes in plans, changes in major drilling equipment, proposals to deepen, sidetrack, complete, workover, or plug back a well, or engage in similar activities to the District Manager on Form MMS-124, Application for Permit to Modify (APM). The submission of your APM must be accompanied by payment of the service fee listed in § 250.125. Before starting operations associated with the change, you must receive written approval from the District Manager unless you received oral approval under § 250.140. 22. In § 250.1704, revise paragraph
(g)in the Decommissioning Applications and Reports Table to read as follows: § 250.1704 When must I submit decommissioning applications and reports? Decommissioning Applications and Reports Table Decommissioning applications and reports When to submit Instructions * * * * * * *
(g)Form MMS-124, Application for Permit to Modify (APM). The submission of your APM must be accompanied by payment of the service fee listed in § 250.125
(1)Before you temporarily abandon or permanently plug a well or zone
(2)Within 30 days after you plug a well * * *
(3)Before you install a subsea protective device Include information required under §§ 250.1712 and 250.1721. Include information required under § 250.1717. Refer to § 250.1722(a).
(4)Within 30 days after you complete a protective device trawl test Include information required under § 250.1722(d).
(5)Before you remove any casing stub or mud line suspension equipment and any subsea protective device Refer to § 250.1723.
(6)Within 30 days after you complete site clearance verification activities Include information required under § 250.1743(a). 23. In § 250.1727, revise the introductory paragraph to read as follows: § 250.1727 What information must I include in my final application to remove a platform or other facility? You must submit to the Regional Supervisor, a final application for approval to remove a platform or other facility. Your application must be accompanied by payment of the service fee listed in § 250.125. If you are proposing to use explosives, provide three copies of the application. If you are not proposing to use explosives, provide two copies of the application. Include the following information in the final removal application, as applicable: 24. In § 250.1751, revise paragraph
(a)introductory text to read as follows: § 250.1751 How do I decommission a pipeline in place?
(a)Submit a pipeline decommissioning application in triplicate to the Regional Supervisor for approval. Your application must be accompanied by payment of the service fee listed in § 250.125. Your application must include the following information: 25. In § 250.1752, revise the introductory text of paragraph
(a)to read as follows: § 250.1752 How do I remove a pipeline?
(a)Submit a pipeline removal application in triplicate to the Regional Supervisor for approval. Your application must be accompanied by payment of the service fee listed in § 250.125. Your application must include the following information: PART 251—GEOLOGICAL AND GEOPHYSICAL (G&G) EXPLORATIONS OF THE OUTER CONTINENTAL SHELF 26. The authority citation for part 251 is revised to read as follows: Authority: 43 U.S.C. 1331 *et seq.* , 31 U.S.C. 9701. 27. In § 251.5, revise paragraph
(a)to read as follows: § 251.5 Applying for permits or filing Notices.
(a)*Permits.* You must submit a signed original and three copies of the MMS permit application form (Form MMS-327). The form includes names of persons, type, location, purpose, and dates of activity, and environmental and other information. A nonrefundable service fee of $1,900 must accompany your application. PART 280—PROSPECTING FOR MINERALS OTHER THAN OIL, GAS, AND SULPHUR ON THE OUTER CONTINENTAL SHELF 28. The authority citation for part 280 is revised to read as follows: Authority: 43 U.S.C. 1331 *et seq.,* 42 U.S.C. 4332 *et seq.,* 31 U.S.C. 9701. 29. In § 280.12, revise paragraph
(a)to read as follows: § 280.12 What must I include in my application or notification?
(a)*Permits.* You must submit to the Regional Director a signed original and three copies of the permit application form (Form MMS-134) at least 30 days before the startup date for activities in the permit area. If unusual circumstances prevent you from meeting this deadline, you must immediately contact the Regional Director to arrange an acceptable deadline. The form includes names of persons, type, location, purpose, and dates of activity, as well as environmental and other information. A nonrefundable service fee of $ 1,900 must accompany your application. [FR Doc. E6-11405 Filed 7-18-06; 8:45 am] BILLING CODE 4310-MR-P DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 100 [CGD05-06-043] RIN 1625-AA08 Special Local Regulations for Marine Events; Patapsco River, Inner Harbor, Baltimore, MD AGENCY: Coast Guard, DHS. ACTION: Temporary final rule. SUMMARY: The Coast Guard is establishing special local regulations during the “Catholic Charities Dragon Boat Races”, a marine event to be held September 9, 2006 on the waters of the Patapsco River, Inner Harbor, Baltimore, MD. These special local regulations are necessary to provide for the safety of life on navigable waters during the event. This action is intended to temporarily restrict vessel traffic in a portion of the Baltimore Inner Harbor during the event. DATES: This rule is effective from 5:30 a.m. to 6:30 p.m. on September 9, 2006. ADDRESSES: Documents indicated in this preamble as being available in the docket, are part of docket (CGD05-06-043) and are available for inspection or copying at Commander (dpi), Fifth Coast Guard District, 431 Crawford Street, Portsmouth, Virginia 23704-5004, between 9 a.m. and 2 p.m., Monday through Friday, except Federal holidays. FOR FURTHER INFORMATION CONTACT: Dennis Sens, Project Manager, Fifth Coast Guard District, Inspections and Investigations Branch, at
(757)398-6204. SUPPLEMENTARY INFORMATION: Regulatory Information On May 4, 2006, we published a notice of proposed rulemaking
(NPRM)entitled Special Local Regulations for Marine Events; Patapsco River, Inner Harbor, Baltimore, MD in the **Federal Register** (71 FR 26285). We received no letters commenting on the proposed rule. No public meeting was requested, and none was held. Background and Purpose On September 9, 2006, Associated Catholic Charities, Inc. will sponsor Dragon Boat Races in the Inner Harbor at Baltimore, MD. The event will consist of 40 teams rowing Chinese Dragon Boats in heats of 2 to 4 boats for a distance of 400 meters. Due to the need for vessel control during the event, the Coast Guard will temporarily restrict vessel traffic in the event area to provide for the safety of participants, spectators and other transiting vessels. Discussion of Comments and Changes The Coast Guard did not receive comments in response to the notice of proposed rulemaking
(NPRM)published in the **Federal Register** . Accordingly, the Coast Guard is establishing temporary special local regulations on specified waters of the Patapsco River, Inner Harbor, Baltimore, Maryland. Regulatory Evaluation This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. It is not “significant” under the regulatory policies and procedures of the Department of Homeland Security (DHS). We expect the economic impact of this rule to be so minimal that a full Regulatory Evaluation under the regulatory policies and procedures of DHS is unnecessary. Although this regulation will prevent traffic from transiting a portion of the Baltimore Inner Harbor during the event, the effect of this regulation will not be significant due to the limited duration that the regulated area will be in effect and the extensive advance notifications that will be made to the maritime community via the Local Notice to Mariners, marine information broadcasts, and area newspapers, so mariners can adjust their plans accordingly. Additionally, the regulated area has been narrowly tailored to impose the least impact on general navigation yet provide the level of safety deemed necessary. Vessel traffic will be able to transit the regulated area at slow speed between heats, when the Coast Guard Patrol Commander deems it is safe to do so. Small Entities Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule would not have a significant economic impact on a substantial number of small entities. This rule would affect the following entities, some of which might be small entities: the owners or operators of vessels intending to transit or anchor in the affected portions of the Baltimore Inner Harbor during the event. Although this regulation prevents traffic from transiting a portion of the Baltimore Inner Harbor during the event, this rule would not have a significant economic impact on a substantial number of small entities for the following reasons. This rule would be in effect for only a limited period. Vessel traffic will be able to transit the regulated area between heats, when the Coast Guard Patrol Commander deems it is safe to do so. Before the enforcement period, we will issue maritime advisories so mariners can adjust their plans accordingly. Assistance for Small Entities Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we offered to assist small entities in understanding the rule so that they could better evaluate its effects on them and participate in the rulemaking process. Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). Collection of Information This rule would call for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520.). Federalism A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this rule under that Order and have determined that it does not have implications for federalism. Unfunded Mandates Reform Act The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this rule would not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble. Taking of Private Property This rule would not effect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights. Civil Justice Reform This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden. Protection of Children We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and would not create an environmental risk to health or risk to safety that might disproportionately affect children. Indian Tribal Governments This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. Energy Effects We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211. Technical Standards The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards ( *e.g.* , specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies. This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards. Environment We have analyzed this rule under Commandant Instruction M16475.lD and Department of Homeland Security Management Directive 5100.1, which guides the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA)(42 U.S.C. 4321-4370f), and have concluded that there are no factors in this case that would limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Therefore, this rule is categorically excluded, under figure 2-1, paragraph (34)(h), of the Instruction, from further environmental documentation. Special local regulations issued in conjunction with a regatta or marine parade permit are specifically excluded from further analysis and documentation under that section. Under figure 2-1, paragraph (34)(h), of the Instruction, an “Environmental Analysis Check List” and a “Categorical Exclusion Determination” are not required for this rule. List of Subjects in 33 CFR Part 100 Marine safety, Navigation (water), Reporting and recordkeeping requirements, Waterways. For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR part 100 as follows: PART 100—SAFETY OF LIFE ON NAVIGABLE WATERS 1. The authority citation for part 100 continues to read as follows: Authority: 33 U.S.C. 1233; Department of Homeland Security Delegation No. 0170.1. 2. Add temporary *§ 100.35—T05-043* to read as follows: *§ 100.35—T05-043 Patapsco River, Inner Harbor, Baltimore, MD.*
(a)*Definitions:* The following definitions apply to this section:
(1)*Coast Guard Patrol Commander* means a commissioned, warrant, or petty officer of the Coast Guard who has been designated by the Commander, Coast Guard Sector Baltimore.
(2)*Official Patrol* means any vessel assigned or approved by Commander, Coast Guard Sector Baltimore with a commissioned, warrant, or petty officer on board and displaying a Coast Guard ensign.
(3)*Participant* inclues all vessels participating in the Catholic Charities Dragon Boat races under the auspices of a Marine Event Permit issued to the event sponsor and approved by Commander, Coast Guard Sector Baltimore.
(4)*Regulated area* inclues the waters of the Patapsco River, Baltimore, MD, Inner Harbor from shoreline to shoreline, bounded on the east by a line drawn along longitude 076°36′30″ West. All coordinates reference Datum NAD 1983.
(b)*Special local regulations:*
(1)Except for event participants and persons or vessels authorized by the Coast Guard Patrol Commander, no person or vessel may enter or remain in the regulated area.
(2)The operator of any vessel in the regulated area shall:
(i)Stop the vessel immediately when directed to do so by any Official Patrol.
(ii)Proceed as directed by any Official Patrol.
(iii)When authorized to transit the regulated area, all vessels shall proceed at the minimum speed necessary to maintain a safe course that minimizes wake near the race course.
(c)*Effective period.* This section will be enforced from 5:30 a.m. to 6:30 p.m. on September 9, 2006. Dated: July 6, 2006. Larry L. Hereth, Rear Admiral, U.S. Coast Guard, Commander, Fifth Coast Guard District. [FR Doc. E6-11377 Filed 7-18-06; 8:45 am] BILLING CODE 4910-15-P DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 117 [CGD13-06-015] RIN 1625-AA09 Drawbridge Operation Regulations; Duwamish Waterway, Seattle, WA AGENCY: Coast Guard, DHS. ACTION: Temporary final rule. SUMMARY: The Coast Guard is temporarily revising the operating regulations for the First Avenue South dual drawbridges across the Duwamish Waterway, mile 2.5, at Seattle, Washington. The change will enable the bridge owner to keep the bridges closed during night hours for a period longer than 60 days. This will facilitate painting the structure while properly containing debris and paint. DATES: This temporary rule is effective from July 15 to September 30, 2006. ADDRESSES: Documents indicated in this preamble as being available in the docket are part of docket CG13-06-015 and are available for inspection or copying at the office of Commander (dpw), 13th Coast Guard District, 915 Second Avenue, Seattle, WA 98174-1067 between 7:30 a.m. and 4 p.m., Monday through Friday, except Federal holidays. FOR FURTHER INFORMATION CONTACT: Austin Pratt, Chief Bridge Section, Commander (dpw), 13th Coast Guard District, 915 Second Avenue, Seattle, WA 98174-1067,
(206)220-7282. SUPPLEMENTARY INFORMATION: Regulatory Information On May 24, 2006, we published a notice of proposed rulemaking
(NPRM)entitled “Drawbridge Operation Regulations; Duwamish River, Seattle, Washington” in the **Federal Register** (71 FR 29871). We received no letters commenting on the proposed rule. No public meeting was requested, and none was held. Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication of this temporary final rule in the **Federal Register,** as is normally required by the Administrative Procedure Act. The Coast Guard experienced administrative problems that made compliance with the 30-day rule impracticable within the work schedule that the bridge owner had previously set. Compliance with the 30-day rule would require rescheduling the repair work, perhaps for a significant amount of time. Timely maintenance of the heavily-used First Avenue South bridges helps preserve the safety of these spans. Thus, a delay of scheduled maintenance would be contrary to the public interest. Moreover, compliance with the 30-day rule at the expense of delaying scheduled maintenance is unnecessary. Temporary deviations from drawbridge schedules for repair or maintenance are already authorized, for periods not to exceed 60 days, by 33 CFR 117.35(d). In this case, the bridge repairs will not pass the 60-day mark until mid-September, by which time this temporary final rule will have been published for far more than 30 days. In addition, our May 24, 2006 NPRM alerted the public to our intention to modify the drawbridge schedule, and the NPRM received no adverse comment. Vessels large enough to require opening of these spans use the Duwamish Waterway only infrequently. Steps have been taken to notify affected vessels that the drawbridge schedule is being altered, via publication in a local notice to mariners. Background and Purpose The dual First Avenue South drawbridges provide 32 feet of vertical clearance at mean high water for the central 100 feet of horizontal distance in the channel spans. When the drawspans are open there is unlimited vertical clearance for the central 120 feet of the spans. An adjacent, parallel bascule bridge was constructed and completed in 1999. Drawbridge openings are provided for recreational vessels, large barges, and floating construction equipment. The operating regulations currently in effect for these drawbridges at 33 Code of Federal Regulations 117.1041 provide that the spans need not open for the passage of vessels from 6 a.m. to 9 a.m. and from 3 p.m. to 6 p.m. Monday through Friday, except for Federal holidays. The draws shall open at any time for a vessel of 5,000 gross tons and over and for a vessel towing such a vessel or en route to take in tow a vessel of that size. The temporary rule will enable the owner to paint the structure after preparing the surfaces of the steel truss beneath the roadway. All of this work must be accomplished within a containment system that permits no material to fall into the waterway. This containment system will have to be modified for drawspan openings. The temporary closed period is from 9 p.m. to 5 a.m. Sunday through Friday from July 15 to September 30, 2006. This operating scheme was authorized last year for the same purpose and generated no objections or complaints from waterway users. Our previous analysis indicated that most vessel operators will not be inconvenienced by the hours of temporary closure. This conclusion seems to have been borne out as no complaints were received during the previous season of work. Others would receive enough notice to plan trips at other hours. Vessel traffic includes tugboats, barges, derrick barges, sailboats and motorized recreational boats including large yachts. The majority of vessels pass through the dual bascule spans during hours other than those affected night hours. First Avenue South is a heavily traveled commuter arterial that serves Boeing Company plants and other industrial facilities in south Seattle. The dual bascule spans need not open for the passage of vessels from 6 a.m. to 9 a.m. and from 6 p.m. to 9 p.m. Monday through Friday. Vessels of 5000 gross tons or more are exempted from these closed periods. However, vessels of this size infrequently ply this reach of the waterway. The dual spans open an average of four times a day. Discussion of Comments and Changes No comments or letters were received in response to the NPRM. No changes to the proposed regulation were made. Regulatory Evaluation This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. It is not “significant” under the regulatory policies and procedures of the Department of Homeland Security. We expect the economic impact of this rule to be so minimal that a full Regulatory Evaluation under the regulatory policies and procedures of DHS is unnecessary. Most vessels will be able to plan transits to avoid the closed periods. Most commercial vessel owners have indicated that they can tolerate the proposed hours by working around them. Saturdays will enjoy normal operations, lessening inconvenience to sailboats. Small Entities Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule would not have a significant economic impact on a substantial number of small entities. This may affect some recreational sailboat owners insofar as they must return by 9 p.m. or wait until 5 a.m. to regain moorage above the drawbridges. We expect these to be few in number. If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (see ADDRESSES ) explaining why you think it qualifies and how and to what degree this rule would economically affect it. Assistance for Small Entities Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we offered to assist small entities in understanding the rule so that they can better evaluate its effects on them and participate in the rulemaking process. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact Austin Pratt, Chief, Bridge Section, at
(206)220-7282. Collection of Information This rule would call for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). Federalism A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this rule under that Order and have determined that it does not have implications for federalism. Unfunded Mandates Reform Act The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this proposed rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble. Taking of Private Property This rule would not affect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights. Civil Justice Reform This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden. Protection of Children We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and would not create an environmental risk to health or risk to safety that might disproportionately affect children. Indian Tribal Governments This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. Energy Effects We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of Information and Regulatory Affairs has not designated this as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211. Technical Standards The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards ( *e.g.* , specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies. This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards. Environment We have analyzed this rule under Commandant Instruction M16475.lD, which guides the Coast Guard in complying with the National Environmental Policy Act of 1969
(NEPA)(42 U.S.C. 4321-4370f), and have concluded that there are no factors in this case that would limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Therefore, this rule is categorically excluded, under figure 2-1, paragraph (32)(e) of the Instruction, from further environmental documentation. There are no expected environmental consequences of the proposed action that would require further analysis and documentation. List of Subjects in 33 CFR Part 117 Bridges. For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 117 as follows: PART 117—DRAWBRIDGE OPERATION REGULATIONS 1. The authority citation for part 117 continues to read as follows: Authority: 33 U.S.C. 499; Department of Homeland Security Delegation No. 0170.1; 33 CFR 1.05-1(g); section 117.255 also issued under the authority of Pub. L. 102-587, 106 Stat. 5039. 2. From 9 p.m. July 15 to 5 a.m. September 30, 2006, in § 117.1041, suspend paragraph (a)(1) and add a new paragraph (a)(3) to read as follows: § 117.1041 Duwamish Waterway.
(a)* * *
(3)From Monday through Friday, except all Federal holidays but Columbus Day, the draws of the First Avenue South Bridges, mile 2.5, need not be opened for the passage of vessels from 6 a.m. to 9 a.m. and from 3 p.m. to 6 p.m., except during these hours: The draws shall open at any time for a vessel of 5000 gross tons and over, a vessel towing a 5000 gross tons and over, and a vessel proceeding to pick up for towing a vessel of 5000 gross tons and over. From July 15 to September 30, 2006, Sunday through Friday, the draws need not be opened for the passage of any vessels from 9 p.m. to 5 a.m. Dated: July 10, 2006. R.R. Houck, Rear Admiral, U.S. Coast Guard, District Commander, Thirteenth Coast Guard District. [FR Doc. E6-11378 Filed 7-18-06; 8:45 am] BILLING CODE 4910-15-P DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 165 [COTP St. Petersburg 06-089] RIN 1625-AA00 Safety Zone; John's Pass, Tampa Bay, FL AGENCY: Coast Guard, DHS. ACTION: Temporary final rule. SUMMARY: The Coast Guard is establishing a temporary safety zone on the waters of Tampa Bay, Florida in the vicinity of the John's Pass Bascule Bridge. This safety zone is being established to protect mariners from the hazards associated with the blasting demolition of the concrete portions of the John's Pass Bascule Bridge. This rule is necessary to provide for the safety of life on the navigable waters of the United States. DATES: This rule is effective from 7 a.m. on July 10, 2006 through 7 p.m. on September 15, 2006. ADDRESSES: Documents indicated in this preamble as being available in the docket are part of the docket [COTP St. Petersburg 06-089] and are available for inspection or copying at Coast Guard Sector St. Petersburg, Prevention Department, 155 Columbia Drive, Tampa, Florida 33606-3598 between 7:30 a.m. and 3:30 p.m., Monday through Friday, except Federal holidays. FOR FURTHER INFORMATION CONTACT: Waterways Management Division at Coast Guard Sector St. Petersburg, Prevention Department,
(813)228-2191 Ext. 8307. SUPPLEMENTARY INFORMATION: Regulatory Information We did not publish a notice of proposed rulemaking
(NPRM)for this regulation. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing an NPRM. The necessary details for the blasting demolition of the John's Pass Bascule Bridge were not provided with sufficient time remaining to publish an NPRM. Publishing an NPRM and delaying its effective date would be contrary to the public interest since immediate action is needed to minimize potential danger to the public during the blasting demolition of the John's Pass Bascule Bridge. The Coast Guard will issue a broadcast notice to mariners to advise mariners of the restriction along with Coast Guard assets and/or Pinellas County Sheriff marine unit on scene who will also provide notice of the safety zone to mariners. For the same reasons, under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the **Federal Register** . Background and Purpose Flatiron Construction was contracted to build a new Bascule at John's Pass and remove the existing Bridge. A meeting was held on April 13, 2006 to address the blasting of the concrete supports of the Bascule Bridge directly adjacent to the navigation channel. Flatiron will conduct two separate blasts on two different days to break the concrete supports into smaller sections for removal. The blasts are tentatively scheduled for July 28, 2006 at approximately 8 a.m., and August 25, 2006 at approximately 8 a.m. Both blasts will fracture the remaining concrete portions of the bridge supports below the waterline. The use of explosives and the proximity of the supports to the navigable channel present a hazard to mariners transiting the area. This safety zone is being established to ensure the safety of life on the navigable waters of the United States and, as such, the safety zone will be enforced for approximately two hours on days on which blasts will take place. Discussion of Rule The safety zone will extend out from the John's Pass Bascule Bridge in a 1,000-foot radius. Vessels and persons not under contract or employees of Flatiron are prohibited from entering, anchoring or transiting within this zone, unless authorized by the Captain of the Port St. Petersburg or his designated representative. This safety zone is effective from 7 a.m. on July 10, 2006 through 7 p.m. on September 15, 2006. The Coast Guard does not know the exact dates that this safety zone will be enforced at this time, although tentative plans are for blasts to occur on July 28, 2006 and August 25, 2006. It is estimated that the safety zone will be enforced for approximately two hours on days on which a blast occurs. Coast Guard Sector St Petersburg will give notice of the enforcement of the safety zone by issuing a Broadcast Notice to Mariners beginning 24 to 48 hours before the blasting is scheduled to begin. On-scene notice will be provided by local Coast Guard and Pinellas County Sheriff marine units enforcing the safety zone. Regulatory Evaluation This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. It is not “significant” under the regulatory policies and procedures of the Department of Homeland Security (DHS). The Coast Guard expects the economic impact of this proposal to be so minimal that a full Regulatory Evaluation under the regulatory policies and procedures of DHS is unnecessary because the safety zone will be in effect for a limited period of time and vessels may enter with the express permission of the Captain of the Port St. Petersburg or his designated representative. Small Entities Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. This rule may affect the following entities, some of which may be small entities: the owners or operators of vessels intending to transit within a 1,000-foot radius from the John's Pass Bascule Bridge. This safety zone will not have a significant economic impact on a substantial number of small entities for the following reasons. This rule will only be enforced for a limited time when vessel traffic is expected to be extremely low. Additionally, traffic will be allowed to enter the zone with the permission of the Captain of the Port St. Petersburg or his designated representative. Assistance for Small Entities Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Public Law 104-121), we offered to assist small entities in understanding the rule so that they could better evaluate its effects on them and participate in the rulemaking process. Small entities may contact the office listed under FOR FURTHER INFORMATION CONTACT for assistance in understanding and participating in this rulemaking. We also have a point of contact for commenting on actions by employees of the Coast Guard. Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). Collection of Information This rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). Federalism A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this rule under that Order and have determined that it does not have implications for federalism. Unfunded Mandates Reform Act The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble. Taking of Private Property This rule will not affect the taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights. Civil Justice Reform This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden. Protection of Children We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not create an environmental risk to health or risk to safety that may disproportionately affect children. Indian Tribal Governments This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. Energy Effects We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211. Technical Standards The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards ( *e.g.* , specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies. This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards. Environment We have analyzed this rule under Commandant Instruction M16475.lD and Department of Homeland Security Management Division 5100.0, which guides the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA)(42 U.S.C. 4321-4370f), and have concluded that there are no factors in this case that would limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Therefore, this rule is categorically excluded, under figure 2-1, paragraph (34)(g), of the Instruction, from further environmental documentation. A final “Environmental Analysis Checklist” and a final “Categorical Exclusion Determination” are available in the docket where indicated under ADDRESSES . List of Subjects in 33 CFR Part 165 Harbors, Marine safety, Navigation (water), Reporting and record keeping requirements, Security measures, Waterways. For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows: PART 165—REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS 1. The authority citation for part 165 continues to read as follows: Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. Chapter 701; 50 U.S.C. 191, 195; 33 CFR 1.05-1(g), 6.04-1, 6.04-6, and 160.5; Pub. L. 107-295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1. 2. A new temporary section 165.T07-089 is added to read as follows: § 165.T07-089 Safety Zone; John's Pass, Tampa Bay, FL.
(a)*Regulated Area.* The Coast Guard is establishing a safety zone on the waters of the Gulf of Mexico in the vicinity of the John's Pass Bascule Bridge. The safety zone encompasses all waters within a 1,000 foot radius of the John's Pass Bascule Bridge located at 27°46′58″ N, 82°46′57″ W.
(b)*Definitions.* The following definitions apply to this section:
(1)*Designated representative* means Coast Guard Patrol Commanders including Coast Guard coxswains, petty officers and other officers operating Coast Guard vessels, and federal, state, and local officers designated by or assisting the Captain of the Port St. Petersburg, in the enforcement of regulated navigation areas and safety and security zones.
(c)*Regulations.* In accordance with the general regulations in § 165.23 of this part, entry into this Regulated Area is prohibited to all vessels and persons without the prior permission of the Coast Guard Captain of the Port St. Petersburg or his designated representative.
(d)*Enforcement Period.* This rule will only be enforced immediately preceding and following a detonation within the regulated area. Coast Guard Sector St. Petersburg will give notice of the enforcement of the regulated area by issuing a Broadcast Notice to Mariners beginning 24 to 48 hours prior to beginning the operation. On-scene notice will be provided by local Coast Guard and local law enforcement marine units enforcing the regulated area.
(e)*Dates.* This rule is effective from 7 a.m. on July 10, 2006 through 7 p.m. on September 15, 2006. Dated: July 10, 2006. J. A. Servidio, Captain, U.S. Coast Guard, Captain of the Port, St Petersburg, Florida. [FR Doc. E6-11486 Filed 7-18-06; 8:45 am] BILLING CODE 4910-15-P DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 165 [CGD09-06-117] RIN 1625-AA00 Safety Zone; Great Lakes Water Sport Expo, Buffalo Outer Harbor, Buffalo, NY AGENCY: Coast Guard, DHS. ACTION: Temporary final rule. SUMMARY: The Coast Guard is establishing a temporary safety zone encompassing the navigable waters of the Buffalo Outer Harbor during the Great Lakes Water Sport Expo on July 30, 2006. This safety zone is necessary to ensure the safety of participants and vessels from the hazards associated with an open water swim. This safety zone is intended to restrict vessel traffic from a portion of the Buffalo Outer Harbor, Buffalo, New York. DATES: This rule will be effective from 8 a.m. (local) until 10 a.m. (local) on July 30, 2006. ADDRESSES: Documents indicated in this preamble as being available in the docket, are part of docket [CGD09-06-117] and are available for inspection or copying at: U.S. Coast Guard Sector Buffalo, 1 Fuhrmann Blvd., Buffalo, New York 14203, between 8 a.m. and 4 p.m., Monday through Friday, except Federal holidays. FOR FURTHER INFORMATION CONTACT: LT Tracy Wirth, U.S. Coast Guard Sector Buffalo, at
(716)843-9573. SUPPLEMENTARY INFORMATION: Regulatory Information We did not publish a notice of proposed rulemaking
(NPRM)for this regulation. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing an NPRM. The permit application was not received in time to publish an NPRM followed by a final rule before the effective date. Under 5 U.S.C. 553(d)(3), good cause exists for making this rule effective less than 30 days after publication in the **Federal Register** . Delaying this rule would be contrary to the public interest of ensuring the safety of participants and vessels during this event, and immediate action is necessary to prevent possible loss of life or property. The Coast Guard has not received any complaints or negative comments previously with regard to this event. Background and Purpose Temporary safety zones are necessary to ensure the safety of participants and vessels from the hazards associated with an open water swim. Based on recent accidents that have occurred in other Captain of the Port zones, the Captain of the Port Buffalo has determined open water swims in close proximity to watercraft pose significant risks to public safety and property. The likely combination of large numbers of recreational vessels and congested waterways could easily result in serious injuries or fatalities. Establishing a safety zone to control vessel movement around the location of the open water swim will help ensure the safety of persons and property at these events and help minimize the associated risk. Discussion of Rule A temporary safety zone is necessary to ensure the safety of participants and vessels during the open water swim in conjunction with the Great Lakes Water Sport Expo. The open water swim will occur between 8 a.m. (local) and 10 a.m. (local) on July 30, 2006. The safety zone consists of all navigable waters of the Buffalo Outer Harbor, bound within 42°50′39″ N, 078°51′39″ W, extending southwest to 42°50′31″ N, 078°52′18″ W, then southeast to point 42°50′22″ N, 078°52′12″ W, extending northeast to point 42°50′36″ N, 078°51′32″ W then extending back to point of origin in Buffalo, NY. All geographic coordinates are North American Datum of 1983 (NAD 83). The size of this zone was determined using the size of the proposed swim course and local knowledge concerning wind, waves, and currents. All persons and vessels shall comply with the instructions of the Coast Guard Captain of the Port or the designated on-scene representative. The Captain of the Port of Buffalo, or his designated on-scene representative, has the authority to terminate the event. Entry into, transiting, or anchoring within the safety zone is prohibited unless authorized by the Captain of the Port Buffalo or his designated on-scene representative. The Captain of the Port or his designated on-scene representative may be contacted via VHF Channel 16. Regulatory Evaluation This proposed rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. It is not “significant” under the regulatory policies and procedures of the Department of Homeland Security (DHS). We expect the economic impact of this proposed rule to be so minimal that a full Regulatory Evaluation under the regulatory policies and procedures of DHS is unnecessary. This determination is based on the minimal time that vessels will be restricted from the zone and the zone is an area where the Coast Guard expects insignificant adverse impact to mariners from the zones' activation. Small Entities Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this rule would have a significant impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule would not have a significant economic impact on a substantial number of small entities. This rule would affect the following entities, some of which might be small entities: The owners or operators of commercial vessels intending to transit a portion of the Buffalo Outer Harbor during the activated safety zone. This safety zone will not have a significant economic impact on a substantial number of small entities for the following reasons: This safety zone is only in effect for a very limited duration from 8 a.m. (local) until 10 a.m. (local) on the day of the event. Vessel traffic can safely pass outside the safety zone during the event. Assistance for Small Entities Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we offered to assist small entities in understanding this rule so that they can better evaluate its effects and participate in the rulemaking process. Small businesses may send comments on actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). Collection of Information This rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). Federalism A rule has implications for federalism under Executive Order 13132, Federalism, if it has substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this rule under that Order and have determined that it does not have implications for federalism. Unfunded Mandates Reform Act The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this rule would not result in such expenditure, we do discuss the effects of this rule elsewhere in this preamble. Taking of Private Property This rule will not affect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights. Civil Justice Reform This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden. Protection of Children The Coast Guard has analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not concern an environmental risk to health or risk to safety that may disproportionately affect children. Indian Tribal Governments This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. Energy Effects We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. It has not been designated by the Administrator of the Office of Information and Regulatory Affairs as a significant energy action. Therefore, it does not require a statement of energy effects under Executive Order 13211. Technical Standards The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards ( *e.g.* , specifications of materials, performance, design, or operation; test methods; sampling procedure; and related management system practices) that are developed or adopted by voluntary consensus standards bodies. This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards. Environment We have analyzed this rule under Commandant Instruction M16475.1D, and Department of Homeland Security Management Directive 5100.1, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969
(NEPA)(42 U.S.C. 4321-4370f), and have concluded that there are no factors in this case that would limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Therefore, this rule is categorically excluded, under figure 2-1, paragraph (34)(g), of the Instruction, from further environmental documentation. This event establishes a safety zone therefore paragraph (34)(g) of the Instruction applies. A final “Environmental Analysis Check List” and a final “Categorical Exclusion Determination” are available in the docket where indicated under ADDRESSES . List of Subjects in 33 CFR Part 165 Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways. For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows: PART 165—REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS 1. The authority citation for part 165 continues to read as follows: Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. Chapter 701; 50 U.S.C. 191, 195; 33 CFR 1.05-1(g), 6.04-1, 6.04-6, and 160.5; Pub. L. 107-295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1 2. A new temporary § 165.T09-117 is added to read as follows: § 165.T09-117 Safety Zone; Great Lakes Water Sport Expo, Buffalo Outer Harbor, Buffalo, NY.
(a)*Location.* The following area is a temporary safety zone: all navigable waters of the Buffalo Outer Harbor, bound within 42°50′39″ N, 078°51′39″ W, extending south-west to 42°50′31″ N, 078°52′18″ W, then south-east to point 42°50′22″ N, 078°52′12″ W, extending north-east to point 42°50′36″ N, 078°51′32″ W then extending back to point of origin in Buffalo, NY. All geographic coordinates are North American Datum of 1983 (NAD 83).
(b)*Effective time and date* . This section is effective from 8 a.m. (local) until 10 a.m. (local) on July 30, 2006.
(c)*Regulations* .
(1)In accordance with the general regulations in section 165.23 of this part, entry into, transiting, or anchoring within this safety zone is prohibited unless authorized by the Captain of the Port Buffalo, or his designated on-scene representative.
(2)This safety zone is closed to all vessel traffic, except as may be permitted by the Captain of the Port Buffalo or his designated on-scene representative.
(3)The “designated on-scene representative” of the Captain of the Port is any Coast Guard commissioned, warrant or petty officer who has been designated by the Captain of the Port to act on his behalf. The designated on-scene representative of the Captain of the Port will be aboard either a Coast Guard or Coast Guard Auxiliary vessel. The Captain of the Port or his designated on-scene representative may be contacted via VHF Channel 16.
(4)Vessel operators desiring to enter or operate within the safety zone shall contact the Captain of the Port Buffalo or his designated on-scene representative to obtain permission to do so. Vessel operators given permission to enter or operate in the safety zone shall comply with all directions given to them by the Captain of the Port Buffalo or his designated on-scene representative. Dated: July 10, 2006. S.J. Ferguson, Captain, U.S. Coast Guard, Captain of the Port Buffalo, Sector Buffalo. [FR Doc. E6-11374 Filed 7-18-06; 8:45 am] BILLING CODE 4910-15-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R08-OAR-2006-0009, FRL-8187-6] Approval and Promulgation of Air Quality Implementation Plans; Montana; Revisions to the Administrative Rules of Montana; Direct Final Rule AGENCY: Environmental Protection Agency (EPA). ACTION: Direct final rule. SUMMARY: EPA is taking direct final action approving State Implementation Plan
(SIP)revisions submitted by the State of Montana on October 25, 2005. The revisions are to the Administrative Rules of Montana and update the citations and references to federal documents and addresses where copies of documents can be obtained, and delete three definitions. The intended effect of this action is to make federally enforceable those provisions that EPA is approving. This action is being taken under section 110 of the Clean Air Act. DATES: This rule is effective on September 18, 2006 without further notice, unless EPA receives adverse comment by August 18, 2006. If adverse comment is received, EPA will publish a timely withdrawal of the direct final rule in the **Federal Register** informing the public that the rule will not take effect. ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R08-OAR-2006-0009, by one of the following methods: • * http://www.regulations.gov* . Follow the online instructions for submitting comments. • E-mail: *long.richard@epa.gov* and *ostrand.laurie@epa.gov* . • Fax:
(303)312-6064 (please alert the individual listed in the FOR FURTHER INFORMATION CONTACT if you are faxing comments). • Mail: Richard R. Long, Director, Air and Radiation Program, Environmental Protection Agency (EPA), Region 8, Mailcode 8P-AR, 999 18th Street, Suite 200, Denver, Colorado 80202-2466. • Hand Delivery: Richard R. Long, Director, Air and Radiation Program, Environmental Protection Agency (EPA), Region 8, Mailcode 8P-AR, 999 18th Street, Suite 300, Denver, Colorado 80202-2466. Such deliveries are only accepted Monday through Friday, 8 a.m. to 4:55 p.m., excluding Federal holidays. Special arrangements should be made for deliveries of boxed information. *Instructions:* Direct your comments to Docket ID No. EPA-R08-OAR-2006-0009. EPA's policy is that all comments received will be included in the public docket without change and may be made available online at *www.regulations.gov* including any personal information provided, unless the comment includes information claimed to be Confidential Business Information
(CBI)or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through *www.regulations.gov* or e-mail. The *www.regulations.gov* Web site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA, without going through *www.regulations.gov* , your e-mail address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. For additional information about EPA's public docket visit the EPA Docket Center homepage at *http://www.epa.gov/epahome/dockets.htm* . For additional instructions on submitting comments, go to section I. General Information of the SUPPLEMENTARY INFORMATION section of this document. *Docket:* All documents in the docket are listed in the *www.regulations.gov* index. Although listed in the index, some information is not publicly available, *e.g.,* CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, will be publicly available only in hard copy. Publicly available docket materials are available either electronically in *www.regulations.gov* or in hard copy at the Air and Radiation Program, Environmental Protection Agency (EPA), Region 8, 999 18th Street, Suite 300, Denver, Colorado 80202-2466. EPA requests that if at all possible, you contact the individual listed in the FOR FURTHER INFORMATION CONTACT section to view the hard copy of the docket. You may view the hard copy of the docket Monday through Friday, 8 a.m. to 4 p.m., excluding Federal holidays. FOR FURTHER INFORMATION CONTACT: Laurie Ostrand, Air and Radiation Program, Mailcode 8P-AR, Environmental Protection Agency (EPA), Region 8, 999 18th Street, Suite 200, Denver, Colorado 80202-2466,
(303)312-6437, *ostrand.laurie@epa.gov* . SUPPLEMENTARY INFORMATION: Table of Contents I. General Information II. Background III. EPA's Review of the State of Montana's October 25, 2005 Submittal IV. Final Action V. Statutory and Executive Order Reviews Definitions For the purpose of this document, we are giving meaning to certain words or initials as follows:
(i)The words or initials *Act* or *CAA* mean or refer to the Clean Air Act, unless the context indicates otherwise.
(ii)The words *EPA* , *we* , *us* or *our* mean or refer to the United States Environmental Protection Agency.
(iii)The initials *SIP* mean or refer to State Implementation Plan.
(iv)The words *State* or *Montana* mean the State of Montana, unless the context indicates otherwise. I. General Information A. What Should I Consider as I Prepare My Comments for EPA? 1. *Submitting CBI* . Do not submit this information to EPA through *www.regulations.gov* or e-mail. Clearly mark the part or all of the information that you claim to be CBI. For CBI information in a disk or CD ROM that you mail to EPA, mark the outside of the disk or CD ROM as CBI and then identify electronically within the disk or CD ROM the specific information that is claimed as CBI. In addition to one complete version of the comment that includes information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2. 2. *Tips for Preparing Your Comments* . When submitting comments, remember to: a. Identify the rulemaking by docket number and other identifying information (subject heading, **Federal Register** date and page number). b. Follow directions—The agency may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations
(CFR)part or section number. c. Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes. d. Describe any assumptions and provide any technical information and/or data that you used. e. If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced. f. Provide specific examples to illustrate your concerns, and suggest alternatives. g. Explain your views as clearly as possible, avoiding the use of profanity or personal threats. h. Make sure to submit your comments by the comment period deadline identified. II. Background On October 25, 2005, the Governor submitted a SIP revision that contains amendments to the following sections of the Administrative Rules of Montana
(ARM)17.8.102, 17.8.103, 17.8.302, 17.8.602, 17.8.767, 17.8.802, 17.8.902, 17.8.1002, and 17.8.1102. The amendments update citations and references to Federal documents and addresses where copies of documents can be obtained. The Board of Environmental Review adopted these amendments on June 3, 2005 and they became effective on June 17, 2005. Additionally, the October 2005 submittal deletes the definition of “public nuisance” from Sub-Chapter 1 and the definitions of “animal matter” and “reduction” from Sub-Chapter 3. The Board of Environmental Review rescinded the definitions on May 18, 2001 and the rescission became effective on June 8, 2001. III. EPA's Review of the State of Montana's October 25, 2005 Submittal A. Revisions to the Administrative Rules of Montana Adopted June 3, 2005 and Effective June 17, 2005 1. Changes to Sub-Chapter 1—General Provisions a. Review of changes to ARM 17.8.102—Incorporation by Reference—Publication Dates. The state is updating the reference to the United States Code, and the dates of the Code of Federal Regulations and other state rules that are referenced. We are approving ARM 17.8.102 as in effect on June 17, 2005. b. Review of changes to ARM 17.8.103—Incorporation by Reference and Availability of Referenced Documents. The state is amending ARM 17.8.103(3) and
(4)to update the addresses for obtaining copies of documents referenced in the rule. We are approving ARM 17.8.103(3) and
(4)as in effect on June 17, 2005. 2. Changes to Sub-Chapter 3—Emission Standards a. Review of changes to ARM 17.8.302—Incorporation by Reference. The state is making minor changes to ARM 17.8.302(2) and amending ARM 17.8.302(3) and
(4)to update the addresses for obtaining copies of documents referenced in the rule. We are approving ARM 17.8.302(2),
(3)and
(4)as in effect on June 17, 2005. 3. Changes to Sub-Chapter 6—Open Burning a. Review of changes to ARM 17.8.602—Incorporation by Reference. The state is making minor changes to ARM 17.8.602(2) and amending ARM 17.8.602(3) and
(4)to update the addresses for obtaining copies of documents referenced in the rule. We are approving ARM 17.8.602(2),
(3)and
(4)as in effect on June 17, 2005. 4. Changes to Sub-Chapter 7—Permit, Construction and Operation of Air Contaminant Sources a. Review if changes to ARM 17.8.767—Incorporation by Reference. EPA will address these revisions in a separate action with other revisions to Sub-Chapter 7 submitted previously. 5. Changes to Sub-Chapter 8—Prevention of Significant Deterioration of Air Quality a. Review of changes to ARM 17.8.802—Incorporation by Reference. The state is making minor changes to ARM 17.8.802(2) and amending ARM 17.8.802(3),
(4)and
(5)to update the addresses for obtaining copies of documents referenced in the rule. We are approving ARM 17.8.802(2), (3),
(4)and
(5)as in effect on June 17, 2005. 6. Changes to Sub-Chapter 9—Permit Requirements for Major Stationary Sources or Major Modifications Locating Within Nonattainment Areas a. Review of changes to ARM 17.8.902—Incorporation by Reference. The state is making minor changes to ARM 17.8.902(2) and amending ARM 17.8.902(3),
(4)and
(5)to update the addresses for obtaining copies of documents referenced in the rule. We are approving ARM 17.8.902(2), (3),
(4)and
(5)as in effect on June 17, 2005. 7. Changes to Sub-Chapter 10—Preconstruction Permit Requirements for Major Stationary Sources or Major Modifications Locating Within Attainment or Unclassified Areas a. Review of changes to ARM 17.8.1002—Incorporation by Reference. The state is making minor changes to ARM 17.8.1002(2) and amending ARM 17.8.1002(3),
(4)and
(5)to update the addresses for obtaining copies of documents referenced in the rule. We are approving ARM 17.8.1002(2), (3),
(4)and
(5)as in effect on June 17, 2005. 8. Changes to Sub-Chapter 11—Visibility Impact Assessment a. Review of changes to ARM 17.8.1102—Incorporation by Reference. The state is making minor changes to ARM 17.8.1102(2) and amending ARM 17.8.1102(3) and
(4)to update the addresses for obtaining copies of documents referenced in the rule. We are approving ARM 17.8.1102(2),
(3)and
(4)as in effect on June 17, 2005. B. Deletion of Definitions from the Administrative Rules of Montana Rescinded May 18, 2001 and Effective June 8, 2001 1. Changes to Sub-Chapter 1—General Provisions a. Review of changes to ARM 17.8.101—Definitions. The state is deleting the definition of “public nuisance.” At the same time the state deleted its non-SIP approved odor rule they also deleted several definitions of terms that were included in the odor rule. Although the term “public nuisance” is used on two other air quality rules the state intends for the statutory definition to apply to these rules. We are approving the removal of the definition of “public nuisance” effective on June 8, 2001. 2. Changes to Sub-Chapter 3—Emission Standards a. Review of changes to ARM 17.8.301—Definitions. The state is deleting the definitions of “animal matter” and “reduction.” At the same time the state deleted its non-SIP approved odor rule they also deleted several definitions of terms that were included in the odor rule. The term “animal matter” is not used in any other air quality rules. The term “reduction” is used in other air quality rules, however, in the other rules its meaning is different than that contained in the definition being deleted. The state intends the term “reduction” to have the meaning indicated by the particular context of each rule. We are approving the removal of the definitions for “animal matter” and “reduction” effective on June 8, 2001. IV. Final Action EPA is approving the following changes to the ARM that were submitted on October 25, 2005 and effective on June 17, 2005: ARM 17.8.102(1), 17.8.103(3) and (4); 17.8.302(2),
(3)and (4); 17.8.602(2),
(3)and (4); 17.8.802(2), (3),
(4)and (5); 17.8.902(2), (3),
(4)and (5); 17.8.1002(2), (3),
(4)and (5); and 17.8.1102(2),
(3)and (4). EPA is approving the deletion of the following definitions from the ARM that were submitted on October 25, 2005 and effective on June 8, 2001: “public nuisance” in Sub-Chapter 1 and “animal matter” and “reduction” in Sub-Chapter 3. EPA is not acting on the following changes to the ARM that were submitted on October 25, 2005 and effective on June 17, 2005: ARM 17.8.767(1), (2),
(3)and (4). These revisions will be addressed in a separate action. Section 110(l) of the Clean Air Act states that a SIP revision cannot be approved if the revision would interfere with any applicable requirement concerning attainment and reasonable further progress towards attainment of the NAAQS or any other applicable requirements of the Act. The Montana SIP revisions that are the subject of this document do not interfere with the maintenance of the NAAQS or any other applicable requirement of the Act. The October 25, 2005 submittal merely makes administrative amendments to the State's Administrative Rules of Montana. Therefore, section 110(l) requirements are satisfied. EPA is publishing this rule without prior proposal because the Agency views this as a noncontroversial amendment and anticipates no adverse comments; we are merely approving administrative changes to Montana's air rules. However, in the “Proposed Rules” section of today's **Federal Register** publication, EPA is publishing a separate document that will serve as the proposal to approve the SIP revision if adverse comments are filed. This rule will be effective September 18, 2006 without further notice unless the Agency receives adverse comments by August 18, 2006. If the EPA receives adverse comments, EPA will publish a timely withdrawal in the **Federal Register** informing the public that the rule will not take effect. EPA will address all public comments in a subsequent final rule based on the proposed rule. The EPA will not institute a second comment period on this action. Any parties interested in commenting must do so at this time. Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment. V. Statutory and Executive Order Reviews Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4). This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have Federalism implications because it does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely approves a state rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant. In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 *et seq.* ). The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the **Federal Register** . A major rule cannot take effect until 60 days after it is published in the **Federal Register** . This action is not a “major rule” as defined by 5 U.S.C. 804(2). Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by September 18, 2006. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).) List of Subjects in 40 CFR Part 52 Environmental protection, Air pollution control, Carbon monoxide, Incorporation by reference, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds. Dated: June 13, 2006. Andrew M. Gaydosh, Acting Regional Administrator, Region 8. 40 CFR part 52 is amended to read as follows: PART 52—[AMENDED] 1. The authority citation for part 52 continues to read as follows: Authority: 42 U.S.C. 7401 et seq. Subpart BB—Montana 2. Section 52.1370 is amended by adding paragraph (c)(64) to read as follows: § 52.1370 Identification of plan.
(c)* * *
(64)Revisions to State Implementation Plan were submitted by the State of Montana on October 25, 2005. The revisions are to the Administrative Rules of Montana and: update the citations and references to federal documents and addresses where copies of documents can be obtained; and delete the definition of “public nuisance” from Sub-Chapter 1 and the definitions of “animal matter” and “reduction” from Sub-Chapter 3.
(i)Incorporation by reference.
(A)Administrative Rules of Montana
(ARM)sections: ARM 17.8.102(1), 17.8.103(3) and (4); 17.8.302(2),
(3)and (4); 17.8.602(2),
(3)and (4); .17.8.802(2), (3),
(4)and (5); 17.8.902(2), (3),
(4)and (5); 17.8.1002(2), (3),
(4)and (5); and 17.8.1102(2),
(3)and (4), effective June 17, 2005. [FR Doc. E6-11344 Filed 7-18-06; 8:45 am] BILLING CODE 6560-50-P DEPARTMENT OF HOMELAND SECURITY Federal Emergency Management Agency 44 CFR Part 67 Final Flood Elevation Determinations AGENCY: Federal Emergency Management Agency (FEMA), Department of Homeland Security, Mitigation Division. ACTION: Final rule. SUMMARY: Base (1% annual chance) Flood Elevations
(BFEs)and modified BFEs are made final for the communities listed below. The BFEs and modified BFEs are the basis for the floodplain management measures that each community is required either to adopt or to show evidence of being already in effect in order to qualify or remain qualified for participation in the National Flood Insurance Program (NFIP). DATES: *Effective Dates:* The date of issuance of the Flood Insurance Rate Map
(FIRM)showing BFEs and modified BFEs for each community. This date may be obtained by contacting the office where the maps are available for inspection as indicated on the table below. ADDRESSES: The final BFEs for each community are available for inspection at the office of the Chief Executive Officer of each community. The respective addresses are listed in the table below. FOR FURTHER INFORMATION CONTACT: William R. Blanton, Jr., Engineering Management Section, Mitigation Division, Federal Emergency Management Agency, 500 C Street SW., Washington, DC 29472,
(202)646-3151. SUPPLEMENTARY INFORMATION: FEMA makes the final determinations listed below for the modified BFEs for each community listed. These modified elevations have been published in newspapers of local circulation and ninety
(90)days have elapsed since that publication. The Mitigation Division Director has resolved any appeals resulting from this notification. This final rule is issued in accordance with section 110 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and 44 CFR part 67. The Agency has developed criteria for floodplain management in floodprone areas in accordance with 44 CFR part 60. Interested lessees and owners of real property are encouraged to review the proof Flood Insurance Study and FIRM available at the address cited below for each community. The BFEs and modified BFEs are made final in the communities listed below. Elevations at selected locations in each community are shown. *National Environmental Policy Act.* This rule is categorically excluded from the requirements of 44 CFR part 10, Environmental Consideration. No environmental impact assessment has been prepared. *Regulatory Flexibility Act.* The Mitigation Division Director certifies that this rule is exempt from the requirements of the Regulatory Flexibility Act because final or modified BFEs are required by the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and are required to establish and maintain community eligibility in the NFIP. No regulatory flexibility analysis has been prepared. *Regulatory Classification.* This final rule is not a significant regulatory action under the criteria of Section 3(f) of Executive Order 12866 of September 30, 1993, Regulatory Planning and Review, 58 FR 51735. *Executive Order 13132, Federalism.* This rule involves no policies that have federalism implications under Executive Order 13132. *Executive Order 12988, Civil Justice Reform.* This rule meets the applicable standards of Executive Order 12988. List of Subjects in 44 CFR Part 67 Administrative practice and procedure, flood insurance, reporting and recordkeeping requirements. Accordingly, 44 CFR Part 67 is amended as follows: PART 67—[AMENDED] 1. The authority citation for part 67 continues to read as follows: Authority: 42 U.S.C. 4001 *et seq.* ; Reorganization Plan No. 3 of 1978, 3 CFR, 1978 Comp., p. 329; E.O. 12127, 44 FR 19367, 3 CFR, 1979 Comp., p. 376. § 67.11 [Amended] 2. The tables published under the authority of § 67.11 are amended as follows: Source of flooding and location #Depth in feet above ground. *Elevation in feet
(NGVD)♢Elevation in feet
(NAVD)Communities affected Faulkner County, Arkansas and Incorporated Areas (FEMA Docket No. P-7689) Gold Creek (South): Approximately 1,050 feet downstream of Sturges Road ♢273 City of Conway. Approximately 2,700 feet upstream of Wasson Road ♢323 Middle Fork Cypress Bayou: At the confluence with Cypress Bayou ♢288 City of Vilonia Faulkner County (Unincorprated Areas). Approximately 440 feet upstream of Marshall Road ♢319 North Fork Cypress Bayou: At confluence with Cypress Bayou ♢288 City of Vilonia Faulkner County (Unincorpoated Areas). Approximately 730 feet upstream of North Marshall Road ♢329 Palarm Creek: At State Highway 286 ♢276 Faulkner County (Unincorpoated Areas). Approximately 4,180 feet upstream of State Highway 36 ♢318 South Fork Cypress Bayou: At confluence with Cypress Bayou ♢288 City of Vilonia Faulkner County (Unincorpoated Areas). Approximately 115 feet upstream of Church Street ♢320 Warren Creek: At confluence with Palarm Creek ♢276 Faulkner County (Unincorpoated Areas). Approximately 530 feet upstream of Lower Ridge Road ♢312 ADDRESSES City of Conway, Faulkner County, Arkansas: Maps are available for inspection at the City of Conway, 100 East Robins, Conway, Arkansas. Faulkner County (Unincorporated Areas): Maps are available for inspection at Faulkner County Emergency Management, 801 Locust Street, Conway, Arkansas. City of Vilonia, Faulkner County, Arkansas: Maps are available for inspection at Vilonia City Hall, 1113 Main Street, Vilonia, Arkansas. (Catalog of Federal Domestic Assistance No. 83.100, “Flood Insurance.”) Dated: July 7, 2006. David I. Maurstad, Director, Mitigation Division, Federal Emergency Management Agency, Department of Homeland Security. [FR Doc. E6-11393 Filed 7-18-06; 8:45 am] BILLING CODE 9110-12-P FEDERAL COMMUNICATIONS COMMISSION 47 CFR Part 73 [DA 06-1406; MB Docket No. 05-139; RM-11218] Radio Broadcasting Services; Americus and Emporia, KS AGENCY: Federal Communications Commission. ACTION: Final rule. SUMMARY: The Audio Division, at the request of Dana J. Puopolo, allots Channel 240A at Americus, Kansas, as the community's first local FM service. In order to accommodate that allotment, the Audio Division also substitutes Channel 244A for Channel 241A at Emporia, Kansas, and modifies the license of Station KANS(FM) to specify operation on Channel 244A at Emporia, Kansas. Channel 240A can be allotted at Americus, Kansas, in compliance with the Commission's minimum distance separation requirements with a site restriction of 12.5 km (7.8 miles) southwest of Americus. The coordinates for Channel 240A at Americus, Kansas, are 38-25-13 North Latitude and 96-21-12 West Longitude. Channel 244A can be substituted for Channel 241A at the current transmitter location for Station KANS(FM): 38-24-21 North Latitude and 96-14-13 West Longitude, with a site location of 4.9 km (3.0 miles) west of Emporia. DATES: Effective August 21, 2006. FOR FURTHER INFORMATION CONTACT: Deborah Dupont, Media Bureau,
(202)418-2180. SUPPLEMENTARY INFORMATION: This is a synopsis of the Commission's *Report and Order* , MB Docket No. 05-139, adopted July 5, 2006, and released July 7, 2006. The full text of this Commission decision is available for inspection and copying during normal business hours in the FCC Reference Information Center, Portals II, 445 12th Street, SW., Room CY-A257, Washington, DC 20554. The complete text of this decision also may be purchased from the Commission's duplicating contractor, Best Copy and Printing, Inc., 445 12th Street, SW., Room CY-B402, Washington, DC 20554,
(800)378-3160, or via the company's Web site, *http://www.bcpiweb.com* . The Commission will send a copy of this *Report and Order* in a report to be sent to Congress and the Government Accountability Office pursuant to the Congressional Review Act, *see* U.S.C. 801(a)(1)(A). List of Subjects in 47 CFR Part 73 Radio, Radio broadcasting. As stated in the preamble, the Federal Communications Commission amends 47 CFR part 73 as follows: PART 73—RADIO BROADCAST SERVICES 1. The authority citation for part 73 continues to read as follows: Authority: 47 U.S.C. 154, 303, 334, 336. § 73.202 [Amended] 2. Section 73.202(b), the Table of FM Allotments under Section 73.202(b), the Table of FM Allotments under Kansas, is amended by adding Americus, Channel 240A, by removing Channel 241A and by adding Channel 244A at Emporia. Federal Communications Commission. John A. Karousos, Assistant Chief, Audio Division, Media Bureau. [FR Doc. E6-11467 Filed 7-18-06; 8:45 am] BILLING CODE 6712-01-P FEDERAL COMMUNICATIONS COMMISSION 47 CFR Part 73 [DA 06-1407; MB Docket No. 02-266; RM-10557] Radio Broadcasting Services; Chillicothe, Dublin, Hillsboro, and Marion, OH AGENCY: Federal Communications Commission. ACTION: Final rule; denial of petition for reconsideration. SUMMARY: The staff denied a petition for reconsideration filed by the Committee for Competitive Columbus Radio of a *Report and Order* in this proceeding, which had granted a rulemaking petition to reallot, downgrade, and change the communities of license for two Ohio radio stations. The staff determined that the reconsideration petition seeks to raise an argument that was previously rejected in the *Report and Order* and did not demonstrate any errors of fact or law. FOR FURTHER INFORMATION CONTACT: Andrew J. Rhodes, Media Bureau,
(202)418-2180. SUPPLEMENTARY INFORMATION: This is a synopsis of the Commission's *Memorandum Opinion and Order,* MM Docket No. 02-266, adopted July 5, 2006, and released July 7, 2006. The full text of this Commission decision is available for inspection and copying during normal business hours in the FCC Reference Information Center (Room CY-A257), 445 12th Street, SW., Washington, DC 20554. The complete text of this decision may also be purchased from the Commission's copy contractor, Best Copy and Printing, Inc., Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC 20554, telephone 1-800-378-3160 or *http://www.BCPIWEB.com.* In the *Report and Order* in this proceeding, the staff approved the reallotment, downgrade, and change of community of license for Station WMRN-FM from Channel 295B at Marion, Ohio to Channel 294B1 at Dublin, Ohio. To accommodate the Station WMRN-FM relocation to Dublin, the staff also granted the reallotment, downgrade, and change of community of license for Station WSRW-FM from Channel 294B at Hillsboro, Ohio, to Channel 293A at Chillicothe, Ohio. *See* 70 FR 19337 (April 13, 2005). This document is not subject to the Congressional Review Act. (The Commission, is, therefore, not required to submit a copy of this Memorandum Opinion and Order to GAO, pursuant to the Congressional Review Act, *see* 5 U.S.C. 801(a)(1)(A) because the petition for reconsideration was denied.) Federal Communications Commission. John A. Karousos, Assistant Chief, Audio Division, Media Bureau. [FR Doc. E6-11421 Filed 7-18-06; 8:45 am] BILLING CODE 6712-01-P FEDERAL COMMUNICATIONS COMMISSION 47 CFR Part 73 [DA 06-1295] Radio Broadcasting Services; Franklin, LA AGENCY: Federal Communications Commission. ACTION: Final rule; denial of petition for reconsideration. SUMMARY: This document denies a Petition for Reconsideration filed by Calvary of New Orleans directed at the staff letter action dismissing the Petition for Rulemaking requesting the reservation of vacant FM Channel 295C3 at Franklin, Louisiana for noncommercial educational use. With this action, the proceeding is terminated. FOR FURTHER INFORMATION CONTACT: Rolanda F. Smith, Media Bureau
(202)418-2180. SUPPLEMENTARY INFORMATION: This is a synopsis of the Commission's *Memorandum Opinion and Order,* adopted June 21, 2006, and released June 23, 2006. The full text of this decision is available for inspection and copying during normal business hours in the FCC Reference Information Center at Portals II, CY-A257, 445 12th Street, SW., Washington, DC. The complete text of this decision may also be purchased from the Commission's copy contractor, Best Copy and Printing, Inc., 445 12th Street, SW., Room CY-B402, Washington, DC 20554, telephone 1-800-378-3160 or *http://www.BCPIWEB.com* . The Commission will not send a copy of this *Memorandum Opinion and Order* pursuant to the Congressional Review Act, *see* 5 U.S.C. 801(a)(1)(A), because the aforementioned petition for reconsideration was denied. Federal Communications Commission. John A. Karousos, Assistant Chief, Audio Division, Media Bureau. [FR Doc. E6-11055 Filed 7-18-06; 8:45 am] BILLING CODE 6712-01-P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 216 [Docket No. 060406098-6169-02; I.D. 020706D] RIN 0648-AT46 Taking and Importing Marine Mammals; Taking Marine Mammals Incidental to Coastal Commercial Fireworks Displays at Monterey Bay National Marine Sanctuary, CA AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Final rule. SUMMARY: NMFS, upon application from the Monterey Bay National Marine Sanctuary (MBNMS or the Sanctuary), is issuing regulations to govern the unintentional takings of small numbers of marine mammals incidental to authorizing professional fireworks displays within the Sanctuary in California waters. Issuance of regulations is required by the Marine Mammal Protection Act
(MMPA)when the Secretary of Commerce (Secretary), after notice and opportunity for comment, finds, as here, that such takes will have a negligible impact on the species and stocks of marine mammals and will not have an unmitigable adverse impact on their availability for subsistence uses. These regulations do not authorize MBNMS to permit fireworks displays. These regulations govern the issuance of “Letters of Authorization”
(LOAs)for the unintentional incidental take of marine mammals in connection with this activity, and prescribe methods of taking and other means of effecting the least practicable adverse impact on marine mammal species and their habitat, and on the availability of the species for subsistence uses. In addition, NMFS, through this final rule, issues mitigation, reporting and monitoring requirements. In the proposed rule, NMFS referenced and proposed the continued implementation of a document entitled “MBNMS Fireworks Guidelines” (Guidelines), which was cooperatively developed by the Sanctuary, NMFS, and the U.S. Fish and Wildlife Service and served as a basis for the mitigation measures described in the proposed rule. These Guidelines also included three specific mitigation measures that NMFS has now included in the final rule. DATES: Effective from July 4, 2006 through July 3, 2011. ADDRESSES: A copy of MBNMS' application which contains a list of the references used in this document may be obtained by writing to Steve Leathery, Division of Permits, Conservation, and Education, Office of Protected Resources, National Marine Fisheries Service, 1315 East-West Highway, Silver Spring, MD 20910-3226 or by telephoning the contact listed here (see FOR FURTHER INFORMATION CONTACT ). The NMFS Administrative Record will be maintained at the above address. FOR FURTHER INFORMATION CONTACT: Jolie Harrison, Office of Protected Resources, NMFS,
(301)713-2289, ext 166, or Monica DeAngelis, NMFS, Southwest Regional Office,
(562)980-3232. SUPPLEMENTARY INFORMATION: Background Sections 101(a)(5)(A) and
(D)of the MMPA (16 U.S.C. 1361 *et seq.* ) direct the Secretary to allow, upon request, the incidental, but not intentional taking of small numbers of marine mammals by U.S. citizens who engage in a specified activity (other than commercial fishing) within a specified geographical region. The Secretary will allow an incidental take if certain findings are made and either regulations are issued or, if the taking is limited to harassment, notice of a proposed authorization is provided to the public for review. Authorization for incidental takings may be granted if NMFS finds that the taking will have no more than a negligible impact on the species or stock(s) and will not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses. The permissible methods of taking and requirements pertaining to the mitigation, monitoring and reporting of such taking shall be prescribed. NMFS has defined “negligible impact” in 50 CFR 216.103 as: an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival. Except for certain categories of activities not pertinent here, the MMPA defines “harassment” as: any act of pursuit, torment, or annoyance which
(i)has the potential to injure a marine mammal or marine mammal stock in the wild [“Level A harassment”]; or
(ii)has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering [“Level B harassment”]. Summary of Request On May 10, 2002, NMFS received an application from the MBNMS requesting a 1-year Incidental Harassment Authorization
(IHA)under section 101(a)(5)(D) and, subsequently, the issuance of regulations governing authorizations for a 5-year period under section 101(a)(5)(A) of the MMPA for the potential harassment of California sea lions ( *Zalophus californianus* ) and Pacific harbor seals ( *Phoca vitulina* ) incidental to coastal fireworks displays conducted at MBNMS under Authorizations issued by MBNMS to local governments, civic organizations, and commercial companies. On July 4, 2005, NMFS issued an IHA to MBNMS (70 FR 39235, July 7, 2005) and that IHA expires on July 3, 2006. Specified Activities Since 1993, the MBNMS, a component of NOAA, has processed requests for the professional display of fireworks that affect the Sanctuary. The MBNMS has determined that debris fallout (spent pyrotechnic materials) from fireworks events may constitute a discharge into the Sanctuary and thus violate Sanctuary regulations, unless an Authorization is issued by the Sanctuary. Therefore, sponsors of fireworks displays conducted in the MBNMS are required to obtain Sanctuary Authorization prior to conducting such displays (see 15 CFR 922.132). The MBNMS has issued 67 Authorizations for professional fireworks displays since 1993 (five in 2005) and 5 applications are currently being processed (as of March 2006). Four fireworks display applications have been directed to areas outside the Sanctuary. However, the MBNMS staff projects that as many as 20 coastal displays per year may be conducted in, or adjacent to, MBNMS boundaries in the future. The number of displays will be limited to no more than 20 events per year in four specific areas along 276 mi (444 km) of coastline. Fireworks displays will not exceed 30 minutes (with the exception of up to two displays per year, not to exceed 1 hour) in duration and will occur with an average frequency of less than or equal to once every two months within each of the four prescribed display areas. Initially, the MBNMS believed that it could minimize potential light, sound, and debris impacts to the Sanctuary and marine mammals through Authorization conditions to limit the location, timing, and composition of professional fireworks events affecting the MBNMS. However, due to observations over the past several years and through consultation with NMFS' Southwest Region, it appears that some fireworks displays resulted in incidental take of marine mammals by Level B harassment. NMFS believes that the nature of the take will be the short-term flushing and evacuation of non-breeding haulout sites by California sea lions and Pacific harbor seals. A detailed description of the types of effects used in the MBNMS fireworks displays and the areas within the Sanctuary where fireworks will be authorized under this final rule was included in the proposed rule (71 FR 25544, May 1, 2006) and may be found in the application or in MBNMS' 2001 Assessment of Pyrotechnic Displays and Impacts Within the MBNMS, which are available at: *http://www.nmfs.noaa.gov/pr/permits/incidental.htm* . Marine Mammals Potentially Affected by the Activity Twenty-six species of marine mammals may be found in the Monterey Bay area (see Table 1 in the MBNMS application), however, the only species likely to be harassed by the fireworks displays are the California sea lion and the Pacific harbor seal. Detailed information regarding the status of these species was provided in the proposed rule (71 FR 25544, May 1, 2006) and additional information can be found in Folkens' Guide to the Marine Mammals of the World
(2002)and in the NMFS stock assessments on the NMFS website: *http://www.nmfs.noaa.gov/pr/PR2/Stock_Assessment_Program/individual_sars.html* . Potential Effects on Marine Mammals The primary causes of disturbance of marine mammals from fireworks are sound effects and light flashes. A discussion of the potential effects to marine mammals from loud noises, including physical impairment, temporary or permanent hearing threshold shift, and behavioral disturbance was included in the proposed rule (71 FR 25544, May 1, 2006). Also included in the proposed rule was an analysis of non-acoustic effects from fireworks, including chemical residue, debris, and increased boat traffic. The potential effects discussed in the proposed rule are the same as those that would occur under the final rule. MBNMS staff have been opportunistically monitoring sea lions at the City of Monterey's Fouth of July celebration for more than 10 years. Their general observations may be summarized as follows: sea lions begin leaving the breakwater as soon as the fireworks begin, clear completely off after an aerial salute or quick succession of loud effects, usually begin returning within a few hours of the end of the display, and are present on the breakwater at pre-firework numbers by the following morning. NMFS anticipates that fireworks will result in short-term behavioral disturbance of pinnipeds in the form of temporary displacement from haulouts in the vicinity of the fireworks. NMFS does not expect these activities to result in the injury of any marine mammals. Comments and Responses On May 1, 2006 (71 FR 25544), NMFS published a notice of proposed rulemaking on MBNMS's request to take marine mammals incidental to authorizing fireworks in the Sanctuary and requested comments, information and suggestions concerning the request. During the 30-day public comment period, NMFS received one comment from the public. *Comment:* The commenter both objected to the harrassment of marine mammals in the MBNMS and opposed any fireworks displays within or near the Sanctuary. The commenter suggested that a sanctuary should be exactly that - a sanctuary, where animals can be safe and protected from human harrasment, including the noise and chemicals involved with fireworks. *Response:* The National Marine Sanctuaries Act requires NOAA to facilitate all public and private uses of marine sanctuary resources to the extent compatible with the primary objective of resource protection. National marine sanctuaries are designated for conservation purposes as well as cultural benefits. The Monterey Bay National Marine Sanctuary (MBNMS) spans one quarter of California's coastline and borders several active coastal communities, thus NOAA must regularly manage potential impacts of human activities within the Sanctuary. Marine fireworks displays have been a frequent component of California coastal community celebrations for decades prior to Sanctuary designation. NOAA has assessed the wildlife disturbance factors and chemical impacts of fireworks displays within the MBNMS for several years, and believes that such activities, if properly managed, can be conducted in a manner that will have no more than negligible short-term adverse effects upon the resources of the Sanctuary. NOAA continues to monitor this activity and will adjust current management strategies to safeguard marine resources and qualities should new information reveal that fireworks are harming the marine environment or living resources of the Sanctuary. Mitigation NMFS has collaborated with the MBNMS and USFWS since 2001 to develop conservation measures that minimize fireworks impacts on protected species and the marine environment within the MBNMS by defining the locations, frequency, and conditions under which the MBNMS can authorize marine fireworks displays. The mitigation measures can be grouped into five broad approaches for managing fireworks displays and will be implemented by the MBNMS:
(1)*Limit displays to certain seasons to safeguard reproductive periods:* This regulation does not authorize fireworks events between March 1 and June 30 of any year, since this period is the primary reproductive season for many marine species.
(2)*Establish four conditional display areas:* Traditional fireworks display areas within the MBNMS are located adjacent to urban centers where wildlife has often acclimated to human disturbances, such as low-flying aircraft, emergency vehicles, unleashed pets, beach combing, recreational and commercial fishing, surfing, swimming, boating, and personal watercraft operations. This regulation only authorizes fireworks displays in four prescribed areas of the Sanctuary. The conditional display areas (described in detail in the proposed rule, 71 FR 25544, May 1, 2006) are located at Half Moon Bay, the Santa Cruz/Soquel area, the northeastern Monterey Peninsula, and Cambria (Santa Rosa Creek).
(3)*Create a per-annum limit on the number of displays allowed in each display area:* If properly managed, a limited number of fireworks displays conducted in areas already heavily impacted by human activity can occur with sufficient safeguards to prevent any long-term or chronic impacts upon local natural resources. This regulation authorizes no more than 20 displays along the entire Sanctuary coastline in order to prevent cumulative negative environmental effects from fireworks proliferation. Additionally, displays will be authorized at an average frequency equal to or less than 1 every 2 months in each conditional display area.
(4)*Retain Authorization requirements and general and special restrictions for each event:* Fireworks displays will not exceed 30 minutes with the exception of two longer displays per year that will not exceed 1 hour. The Sanctuary will continue to assess displays on a case-by-case basis, using specially developed terms and conditions to address concerns unique to fireworks displays (e.g., restricting the number of aerial “salute” effects used as well as requiring a “ramp-up”, wherein “salutes” are not allowed in the first 5 minutes of the display; requiring the removal of plastic and aluminum labels and wrappings; and requiring post-show reporting and cleanup). Such terms and conditions have evolved over 12 years, as the Sanctuary has sought to improve its understanding of the potential impacts that fireworks displays have upon marine wildlife and the environment. The MBNMS will implement general and special restrictions unique to each fireworks event as necessary.
(5)*Institute a 5-year Authorization system for annual displays:* The Sanctuary intends to institute a 5-year Authorization system for fireworks displays that occur annually at fixed locations in a consistent manner, such as municipal Independence Day shows. Authorizations will include special conditions that mitigate negative impacts upon species and habitat from fireworks displays, such as the requirement for authorization holders to clean up debris following each event. Authorizations for fireworks displays will not be valid unless current LOAs have been issued by NMFS for unintentional harassment incidental to the displays. The above conservation measures are designed to prevent an incremental proliferation of fireworks displays and disturbance throughout the Sanctuary and minimize area of impact by authorizing displays in primary traditional use areas. They also place multiple special conditions on the displays and allow fireworks displays only during seasons that avoid sensitive wildlife breeding cycles. These measures and MBNMS Authorization conditions assure that protected species and habitats are not jeopardized by fireworks activities. They have been well received by local fireworks sponsors who have pledged their cooperation in protecting Sanctuary resources. Monitoring The Sanctuary shall conduct a visual census of the Monterey Breakwater and Harbor Rocks on July 4-5, 2007, to update annual abundance, demographic response patterns, and departure and return rates for California sea lions and harbor seals relative to the July 4 fireworks display. Data will be collected by an observer aboard a kayak or small boat and from ground stations (where appropriate). The observer will use binoculars, counters, and data sheets to count animals. The pre and post fireworks census data will be analyzed to identify any significant temporal changes in abundance and distribution that might be attributed to impacts from the annual fireworks display. The data will also be added to past research statistics on the abundance and distribution of stocks at Monterey Harbor. It should be noted, however, that annual population trends at any given pinniped haul-out site can be influenced by a myriad of environmental and biological factors, ranging from predation upon pups at distant breeding colonies to fluctuating prey stocks due to El Nino events. These many variables make it difficult to measure and differentiate the potential impact of a single stimulus on long-term population trends. The Sanctuary also proposes to conduct one-time acoustic monitoring at the 2007 City of Monterey Fourth of July fireworks display in conjunction with the behavioral monitoring described above. The Sanctuary has contracted SRS Technologies
(SRS)to conduct the acoustic monitoring. SRS will use two independent systems to monitor the sound environment and to measure fireworks noise. A TEAC model RD-120T digital audio tape recorder
(DAT)recorder, a high quality Bruel and Kjaer type 4193 microphone with a type UC0211 low frequency adapter, and type 2669 pre-amplifier will be used and are specifically tailored for recording the low frequency sound associated with impulsive noise sources like explosives. This system records the noise digitally to tape, which allows for detailed post-launch analysis of the frequency content, and the calculation of many other acoustic metrics. The DAT system will record for just over three hours (longer than the fireworks) and the waveforms will be analyzed using custom routines programmed in MatLab. SRS will also use the Larson-Davis model 820 Type 1 sound level meter
(SLM)for the acoustic monitoring. The SLM does not make an actual recording of sound, but measures specific sound events that exceed a pre-set minimum sound level, background noise, and ambient noise and then computes acoustical metrics such as the A-weighted SEL, unweighted SEL, and A-weighted peak. Microphones for both pieces of equipment will be mounted approximately 1.2 m (3.9 ft) above ground on tripods and will be covered by extra large windballs to reduce wind noise. Noise systems will be calibrated in the field prior to recording. In addition to the comprehensive behavioral and acoustic monitoring to be conducted only at the Monterey Breakwater in 2006, MBNMS will require its applicants to conduct a pre-event census of local marine mammal populations within the fireworks impact area of all the fireworks displays authorized. Each applicant will also be required to conduct post-event monitoring in the fireworks impact area to record injured or dead marine mammals, brown pelicans, and other wildlife. Reporting MBNMS must submit a draft annual monitoring report to NMFS within 60 days after the conclusion of each calendar year. MBNMS must submit a final annual monitoring report to the NMFS within 30 days after receiving comments from NMFS on the draft report. If no comments are received from NMFS, the draft report will be considered to be the final report. In addition, the MBNMS will continue to incorporate updated census data from government and academic surveys into its analysis and will make its information available to other marine mammal researchers upon request. Lastly, MBNMS must submit a draft comprehensive monitoring report to NMFS 120 days prior to the expiration of the regulations if renewal is requested, or 120 days after the expiration of the regulations, if renewal is not requested. MBNMS must submit the final comprehensive monitoring report to NMFS within 30 days after receiving comments from NMFS on the draft comprehensive monitoring report. Again, if no comments are received from NMFS, the draft report will be considered to be the final report. Numbers of Marine Mammals Expected to be Harassed As discussed above, the two marine mammal species NMFS believes likely to be taken by Level B harassment incidental to fireworks displays authorized within the Sanctuary are the California sea lion ( *Zalophus californianus* ) and the Pacific harbor seal (Phoca vitulina richardsi), due to the temporary evacuation of usual and accustomed haul-out sites. Both of these species are protected under the MMPA, and neither is listed under the ESA. Numbers of animals that may be taken by Level B harassment are expected to vary due to factors such as tidal state, seasonality, shifting prey stocks, climatic phenomenon (such as El Nino events), and the number, timing, and location of future displays. The estimated take of sea lions and harbor seals was determined by using a synthesis of information, including data gathered by MBNMS biologists at the specific display sites, results of independent surveys conducted in the MBNMS, and population estimates from surveys covering larger geographic areas. More detailed information regarding the estimates of take of sea lions and harbor seals may be found in the application at: *http://www.nmfs.noaa.gov/pr/permits/incidental.htm* . Stage structure of California sea lions within the Sanctuary varies by location, but generally, the majority are adult and sub-adult males. Weise
(2000)reported on the stage structure of California sea lions at two historic fireworks display areas within the MBNMS, and speculated that juveniles may haul out at the Monterey jetty in large numbers due to a need for a more protected haul-out location. He also reported that most animals on Ano Nuevo Island appeared to be adult males and suggested that the stage structure may vary between mainland haul-out sites and offshore islands and rocks. At all four designated display sites combined, twenty fireworks events per year could disturb an average total of 2,630 California sea lions, with the maximum being 6,170 animals out of a total estimated population of 237,000-244,000. These numbers are small relative to the population size (1.1-2.6 percent). For harbor seals, an average of 302 and a maximum of 1,065 harbor out of a total estimated population of 27,836 could be disturbed within the Sanctuary as a result of twenty fireworks events per year at all four designated display sites combined. These numbers are small relative to the population size (1.1-3.8 percent). Nicholson
(2000)studied the stage structure of harbor seals on the northeast Monterey Peninsula (an area with the largest single concentration of animals within the Sanctuary) for two years. For the final spring season of the study, survey numbers equate to a stage structure comprising 38 percent adult females, 15 percent adult males, 34 percent sub-adults, and 13 percent yearlings or juveniles. With the incorporation of mitigation measures required by this final rule and subsequent LOAs, NMFS and the MBNMS believe that the proposed authorized coastal fireworks displays may result in Level B Harassment of pinnipeds hauled out in the area of the fireworks, with no associated injury resulting. NMFS believes that these activities will have a negligible impact on marine mammal species or stocks and their habitats. Possible Effects of Activities on Marine Mammal Habitat Impacts on marine mammal habitat are part of the consideration in making a finding of negligible impact on the species and stocks of marine mammals. Habitat includes, but is not necessarily limited to, rookeries, mating grounds, feeding areas, and areas of similar significance. The amount of debris and chemical residue resulting from fireworks displays authorized within the MBNMS is determined by the size and contents of the different fireworks, as well as the wind conditions, weather, and other local variations. Special conditions requiring Authorization holders to clean up the affected area after each fireworks display will be required by the LOAs and Sanctuary Authorizations. No evidence of water quality deterioration has been found in relation to prior MBNMS fireworks displays and the Environmental Assessment for this action discusses the 1992 Walt Disney report, which found that environmental impacts from fireworks decomposition products typically will be negligible in locations that conduct fireworks displays infrequently. Because of the aforementioned mitigation measure and report, NMFS does not expect the debris and residue resulting from authorized fireworks displays to significantly impact marine mammal habitat in the MBNMS. Possible Effects of Activities on Subsistence Needs There are no subsistence uses for Pacific harbor seals in California waters, and thus, there are no anticipated effects on subsistence needs. ESA As mentioned earlier, the Steller sea lion and several species of federally listed cetaceans may be present at MBNMS at different times of the year and could potentially swim through the fireworks impact area during a display. In a 2001 consultation with MBNMS, the Southwest Region, NMFS, concluded that this action is not likely to adversely affect federally listed species under NMFS' jurisdiction. There is no designated critical habitat in the area. This action will not have effects beyond those analyzed in that consultation. The USFWS is responsible for regulating the take of the southern sea otter, the brown pelican, and the western snowy plover. The MBNMS consulted with the USFWS pursuant to section 7 of the ESA regarding impacts to these species. The USFWS issued a Biological Opinion on June 22, 2005, which concluded that the authorization of fireworks displays, as proposed, is not likely to jeopardize the continued existence of endangered and threatened species within the Sanctuary or to destroy or adversely modify any listed critical habitat. The USFWS further found that MBNMS would be unlikely to take any southern sea otters, and therefore issued neither an incidental take statement under the ESA nor an IHA. The USFWS found that an incidental take of brown pelicans was possible and issued an incidental take statement containing terms and conditions to protect the species. The USFWS concluded that the authorization of fireworks events, as proposed, is not likely to jeopardize the continued existence of the western snowy plover or destroy or adversely modify critical habitat of the species. National Environmental Policy Act NOAA prepared a Final Environmental Impact Statement and Master Plan for the MBNMS in June 1992; however, this document did not address the authorization of fireworks within the Sanctuary. In 2006, MBNMS and NMFS jointly prepared a Environmental Assessment
(EA)on the Issuance of Regulations Authorizing Incidental Take of Marine Mammals and Issuance of National Marine Sanctuary Authorizations for Coastal Commercial Fireworks Displays within the Monterey Bay National Marine Sanctuary. An associated Finding of No Significant Impact was issued on June 20, 2006. Determination NMFS has determined that the fireworks displays, as described in this document and in the application for regulations and subsequent LOAs, will result in no more than Level B harassment of small numbers of California sea lions and harbor seals. The effects of coastal fireworks displays will be limited to short term and localized changes in behavior, including temporarily vacating haulouts to avoid the sight and sound of commercial fireworks. NMFS has also determined that any takes will have a negligible impact on the affected species and stocks. No take by injury and/or death is anticipated, and harassment takes will be at the lowest level practicable due to incorporation of the mitigation measures mentioned previously in this document. Additionally, the MBNMS fireworks displays will not have an unmitigable adverse impact on the availability of marine mammal stocks for subsistence use, as there are no subsistence uses for California sea lions or Pacific harbor seals in California waters. Classification The MMPA provides for a moratorium on the take of marine mammals, unless the take is permitted pursuant to certain enumerated exceptions. The Secretary of Commerce may, upon request, allow for the incidental, but not intentional, taking by harassment of small numbers of marine mammals of a species or population stock, if he determines that the harassment will have a negligible impact on such species or population stock and will not have an unmitigable adverse impact on the availability of such species or stock for subsistence uses pursuant to the MMPA. The National Marine Fisheries Service currently authorizes the Monterey Bay National Marine Sanctuary to take, by level B harassment, certain pinnipeds during the course of fireworks displays held within the Sanctuary. The Sanctuary has been operating under 1-year authorizations for the past year. This final rule would streamline the annual authorization process for a 5-year period. The Sanctuary's current 1-year authorization is set to expire on July 3, 2006. If the final rule is not in effect by that time, the Sanctuary and fireworks display applicants would be prohibited from engaging in fireworks activities for the upcoming July 4 season because they would no longer have an authorization to lawfully take marine mammals and would be liable for marine mammal takes that occur incidental to those activities. Therefore, as this final rule and NMFS's subsequent LOA grant an exemption to the MMPA moratorium on take of marine mammals, the AA for Fisheries finds the 30-day delay in effectiveness does not apply. The Office of Management and Budget has determined that this final rule is not significant for purposes of Executive Order 12866. Pursuant to the Regulatory Flexibility Act, the Chief Counsel for Regulation of the Department of Commerce has certified to the Chief Counsel for Advocacy of the Small Business Administration that this rule, if adopted, would not have a significant economic impact on a substantial number of small entities. The Regulatory Flexibility Act requires Federal agencies to prepare an analysis of a rule's impact on small entities whenever the agency is required to publish a notice of proposed rulemaking. However, a Federal agency may certify, pursuant to 5 U.S.C. section 605(b), that the action will not have a significant economic impact on a substantial number of small entities. The MBNMS is the entity that will be affected by this rulemaking, not a small governmental jurisdiction, small organization or small business, as defined by the Regulatory Flexibility Act. Any requirements imposed by a Letter of Authorization issued pursuant to these regulations, and any monitoring or reporting requirements imposed by these regulations, will be applicable only to the MBNMS. The MBNMS is part of the National Oceanic and Atmospheric Administration, National Ocean Service, a Federal agency responsible for managing the national marine sanctuary program. Because this action, if adopted, would directly affect the MBNMS and not a small entity, NMFS concludes the action would not result in a significant economic impact on a substantial number of small entities. List of Subjects in 50 CFR Part 216 Exports, Fish, Imports, Indians, Labeling, Marine mammals, Penalties, Reporting and recordkeeping requirements, Seafood, Transportation. Dated: June 22, 2006. Jim Balsiger, Acting Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service. For reasons set forth in the preamble, 50 CFR part 216 is amended as follows: PART 216—REGULATIONS GOVERNING THE TAKING AND IMPORTING OF MARINE MAMMALS 1. The authority citation for part 216 continues to read as follows: Authority: 16 U.S.C. 1361 *et seq.* 2. Subpart J is added to part 216 to read as follows: Subpart J—Taking Marine Mammals Incidental to Coastal Commercial Fireworks Displays at Monterey Bay National Marine Sanctuary, California Sec. 216.110 Specified activity and specified geographical region. 216.111 Effective dates. 216.112 Permissible methods of taking. 216.113 Prohibitions. 216.114 Mitigation. 216.115 Requirements for monitoring and reporting. 216.116 Applications for Letters of Authorization. 216.117 Letters of Authorization. 216.118 Renewal of Letters of Authorization. 216.119 Modifications to Letters of Authorization. Subpart J—Taking Marine Mammals Incidental to Coastal Commercial Fireworks Displays at Monterey Bay National Marine Sanctuary, CA § 216.110 Specified activity and specified geographical region.
(a)Regulations in this subpart apply only to the incidental taking of those marine mammal species specified in paragraph
(b)of this section by the MBNMS.
(b)The incidental take, by Level B harassment only, of marine mammals under the activity identified in this section is limited to the following species: California sea lions ( *Zalophus californianus* ) and Pacific harbor seals ( *Phoca vitulina* ). § 216.111 Effective dates. Regulations in this subpart are effective from July 4, 2006, through July 3, 2011. § 216.112 Permissible methods of taking.
(a)Under Letters of Authorization issued pursuant to §§ 216.106 and 216.117, the Holder of the Letter of Authorization (i.e. the Superintendent of MBNMS) may incidentally, but not intentionally, take marine mammals by Level B harassment only, within the area described in § 216.110(a), provided the activity is in compliance with all terms, conditions, and requirements of these regulations and the appropriate Letter of Authorization.
(b)The activities identified in § 216.110(a) must be conducted in a manner that minimizes, to the greatest extent practicable, any adverse impacts on marine mammals and their habitat.
(c)The taking of marine mammals is authorized for the species listed in § 216.110(b) and is limited to the Level B Harassment of no more than 6,170 California sea lions and 1,065 harbor seals annually. § 216.113 Prohibitions. Notwithstanding takings contemplated in § 216.110 and authorized by a Letter of Authorization issued under §§ 216.106 and 216.117, no person in connection with the activities described in § 216.110 may:
(a)Take any marine mammal not specified in § 216.110(b);
(b)Take any marine mammal specified in § 216.110(b) other than by incidental, unintentional Level B harassment;
(c)Take a marine mammal specified in § 216.110(b) if such taking results in more than a negligible impact on the species or stocks of such marine mammal; or
(d)Violate, or fail to comply with, the terms, conditions, and requirements of these regulations or a Letter of Authorization issued under §§ 216.106 and 216.117. § 216.114 Mitigation.
(a)The activity identified in § 216.110(a) must be conducted in a manner that minimizes, to the greatest extent practicable, adverse impacts on marine mammals and their habitats. When conducting operations identified in § 216.110(a), all the mitigation measures contained in the Letter of Authorization issued under §§ 216.106 and 216.117 must be implemented, including but not limited to:
(1)Limiting the location of the authorized fireworks displays to the four specifically prescribed areas at Half Moon Bay, the Santa Cruz/Soquel area, the northeastern Monterey Peninsula, and Cambria (Santa Rosa Creek);
(2)Limiting the total frequency of authorized fireworks displays to no more than 20 total displays per year and the average frequency to no more than one fireworks display every two months in each of the four conditional display areas;
(3)Limiting the duration of authorized individual fireworks displays to no longer than 30 minutes each, with the exception of two longer shows not to exceed 1 hour;
(4)Prohibiting fireworks displays at MBNMS between March 1 and June 30 of any year; and
(5)Implementing the following special conditions for fireworks when authorizing fireworks displays at the MBNMS:
(i)Delay of aerial “salute” effects until five minutes after the commencement of any fireworks display.
(ii)Removal of all plastic labels and wrappings from pyrotechnic devices prior to use.
(iii)Required recovery of all fireworks related debris from the launch site and affected beaches on the evening of the display and again on the morning after.
(b)The mitigation measures that the individuals conducting the fireworks are responsible for shall be included as a requirement in any Authorization the MBNMS issues to the individuals. § 216.115 Requirements for monitoring and reporting.
(a)The Holder of the Letter of Authorization issued pursuant to §§ 216.106 and 216.117 for activities described in § 216.110(a) is required to cooperate with the National Marine Fisheries Service (NMFS), and any other Federal, state or local agency monitoring the impacts of the activity on marine mammals. The Holder of the Letter of Authorization must notify the Director, Office of Protected Resources, National Marine Fisheries Service, or designee, by telephone (301-713-2289), within 48 hours if the authorized activity identified in § 216.110(a) is thought to have resulted in the mortality or injury of any marine mammals, or in any take of marine mammals not identified in § 216.110(b).
(b)The Holder of the Letter of Authorization must conduct all monitoring and/or research required under the Letter of Authorization including, but not limited to:
(1)A one-time comprehensive pinniped census at the City of Monterey Fourth of July Celebration in 2007;
(2)A one-time acoustic measurement of the Monterey Fourth of July Celebration in 2007;
(3)Counts of pinnipeds in the impact area prior to all displays at all locations; and
(4)Reporting to NMFS of all marine mammal injury or mortality encountered during debris cleanup the morning after every fireworks display authorized by the Sanctuary.
(c)Unless specified otherwise in the Letter of Authorization, the Holder of the Letter of Authorization must submit a draft annual monitoring report to the Director, Office of Protected Resources, NMFS, no later than 60 days after the conclusion of each calendar year. This report must contain;
(1)An estimate of the number of marine mammals disturbed by the authorized activities,
(2)Results of the monitoring required in § 216.115
(b)and
(c)and any additional information required by the Letter of Authorization. A final annual monitoring report must be submitted to the NMFS within 30 days after receiving comments from NMFS on the draft report. If no comments are received from NMFS, the draft report will be considered to be the final annual monitoring report.
(d)A draft comprehensive monitoring report on all marine mammal monitoring and research conducted during the period of these regulations must be submitted to the Director, Office of Protected Resources, NMFS at least 120 days prior to expiration of these regulations or 120 days after the expiration of these regulations if renewal of the regulations will not be requested. A final comprehensive monitoring report must be submitted to the NMFS within 30 days after receiving comments from NMFS on the draft report. If no comments are received from NMFS, the draft report will be considered to be the final comprehensive monitoring report. § 216.116 Applications for Letters of Authorization. To incidentally take marine mammals pursuant to these regulations, the U.S. citizen (as defined by § 216.103) conducting the activity identified in § 216.110(a) must apply for and obtain either an initial Letter of Authorization in accordance with §§ 216.117 or a renewal under § 216.118. § 216.117 Letters of Authorization.
(a)A Letter of Authorization, unless suspended or revoked, will be valid for a period of time not to exceed the period of validity of this subpart, subject to annual renewal pursuant to the conditions in § 216.118.
(b)Each Letter of Authorization will set forth:
(1)Permissible methods of incidental taking;
(2)Means of effecting the least practicable adverse impact on the species, its habitat, and on the availability of the species for subsistence uses (i.e., mitigation); and
(3)Requirements for mitigation, monitoring and reporting.
(c)Issuance and renewal of the Letter of Authorization will be based on a determination that the total number of marine mammals taken by the activity as a whole will have no more than a negligible impact on the affected species or stock of marine mammal(s).
(d)The U.S. Citizen, i.e., the MBNMS, operating under an LOA must clearly describe in any Sanctuary Authorizations issued to the individuals conducting fireworks displays, any requirements of the LOA for which the individuals conducting fireworks are responsible. § 216.118 Renewal of Letters of Authorization.
(a)A Letter of Authorization issued under § 216.106 and § 216.117 for the activity identified in § 216.110(a) will be renewed annually upon:
(1)Notification to NMFS that the activity described in the application submitted under § 216.116 will be undertaken and that there will not be a substantial modification to the described work, mitigation or monitoring undertaken during the upcoming 12 months;
(2)Timely receipt of the monitoring reports required under § 216.115(b), and the Letter of Authorization issued under § 216.117, which has been reviewed and accepted by NMFS; and
(3)A determination by the NMFS that the mitigation, monitoring and reporting measures required under § 216.114 and the Letter of Authorization issued under §§ 216.106 and 216.117, were undertaken and will be undertaken during the upcoming annual period of validity of a renewed Letter of Authorization.
(b)If a request for a renewal of a Letter of Authorization issued under §§ 216.106 and 216.118 indicates that a substantial modification to the described work, mitigation or monitoring undertaken during the upcoming season will occur, the NMFS will provide the public a period of 30 days for review and comment on the request. Review and comment on renewals of Letters of Authorization are restricted to:
(1)New cited information and data indicating that the determinations made in this document are in need of reconsideration, and
(2)Proposed changes to the mitigation and monitoring requirements contained in these regulations or in the current Letter of Authorization.
(c)A notice of issuance or denial of a renewal of a Letter of Authorization will be published in the **Federal Register** . § 216.119 Modifications to Letters of Authorization.
(a)Except as provided in paragraph
(b)of this section, no substantive modification (including withdrawal or suspension) to the Letter of Authorization by NMFS, issued pursuant to §§ 216.106 and 216.117 and subject to the provisions of this subpart shall be made until after notification and an opportunity for public comment has been provided. For purposes of this paragraph, a renewal of a Letter of Authorization under § 216.118, without modification (except for the period of validity), is not considered a substantive modification.
(b)If the Assistant Administrator determines that an emergency exists that poses a significant risk to the well-being of the species or stocks of marine mammals specified in § 216.110(b), a Letter of Authorization issued pursuant to §§ 216.106 and 216.117 may be substantively modified without prior notification and an opportunity for public comment. Notification will be published in the **Federal Register** within 30 days subsequent to the action. [FR Doc. E6-11463 Filed 7-18-06; 8:45 am] BILLING CODE 3510-22-S DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 679 [Docket No. 060216045-6045-01; I.D. 071306C] Fisheries of the Exclusive Economic Zone Off Alaska; Yellowfin Sole in the Bering Sea and Aleutian Islands Management Area AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Modification of a closure. SUMMARY: NMFS is reopening directed fishing for yellowfin sole in the Bering Sea and Aleutian Islands management area (BSAI). This action is necessary to fully use the 2006 total allowable catch
(TAC)of yellowfin sole in the BSAI. DATES: Effective 1200 hrs, Alaska local time (A.l.t.), July 19, 2006, through 2400 hrs, A.l.t., December 31, 2006. FOR FURTHER INFORMATION CONTACT: Josh Keaton, 907-586-7228. SUPPLEMENTARY INFORMATION: NMFS manages the groundfish fishery in the BSAI according to the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area
(FMP)prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679. NMFS closed the directed fishery for yellowfin sole in the BSAI under § 679.20(d)(1)(iii) on June 19, 2006 (71 FR 35835, June 22, 2006). NMFS has determined that 1,502 metric tons of yellowfin sole remain in the directed fishing allowance in the BSAI. Therefore, in accordance with § 679.25(a)(1)(i), (a)(2)(i)(C) and (a)(2)(iii)(D), NMFS is terminating the previous closure and is reopening directed fishing for yellowfin sole by vessels using trawl gear in the BSAI. Classification This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the opening of yellowfin sole in the BSAI. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of July 11, 2006. The AA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment. This action is required by § 679.25 and is exempt from review under Executive Order 12866. Authority: 16 U.S.C. 1801 *et seq.* Dated: July 13, 2006. James P. Burgess, Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service. [FR Doc. 06-6335 Filed 7-14-06; 1:44 pm]
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U.S. Code
- SHORT TITLE.§ 9701
- Definitions§ 601
- EXPEDITED PROCESSING OF REQUESTS FOR JAPANESE IMPERIAL GOVERNMENT RECORDS.§ 804
- Regulatory process§ 1531
- Definitions§ 1331
- Cooperation of agencies; reports; availability of information; recommendations; international and national coordination of efforts§ 4332
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- Rule making§ 553
- Regulations for drawbridges§ 499
- Transferred§ 1226
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27 references not yet in our index
- 30 CFR 250
- 30 CFR 251
- 30 CFR 280
- 40 CFR 1508.4
- 33 CFR 100
- 5 USC 601-612
- Pub. L. 104-121
- 44 USC 3501-3520
- 2 USC 1531-1538
- 42 USC 4321-4370f
- 33 USC 1233
- 33 CFR 117
- Pub. L. 102-587
- 106 Stat. 5039
- 33 CFR 165
- Pub. L. 107-295
- 40 CFR 52
- 40 CFR 2
- Pub. L. 104-4
- 44 CFR 67
- 44 CFR 60
- 44 CFR 10
- 47 CFR 73
- 50 CFR 216
- 50 CFR 216.103
- 50 CFR 679
- 50 CFR 600
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