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Code · REGISTER · 2006-10-05 · Federal Energy Regulatory Commission, DOE · Proposed Rules

Proposed Rules. Proposed rule: notice of agenda for technical conference

37,011 words·~168 min read·/register/2006/10/05/06-8512·

A research copy — for the controlling text, always check the official state or federal source. Not legal advice.

BILLING CODE 3510-NK-M DEPARTMENT OF ENERGY Federal Energy Regulatory Commission 18 CFR Parts 35 and 37 [Docket Nos. RM05-25-000 and RM05-17-000] Preventing Undue Discrimination and Preference in Transmission Service September 28, 2006. AGENCY: Federal Energy Regulatory Commission, DOE. ACTION: Proposed rule: notice of agenda for technical conference. SUMMARY: Commission staff proposes to convene a technical conference to discuss issues raised in the Notice of Proposed Rulemaking
(NOPR)issued in this proceeding. Preventing Undue Discrimination and Preference in Transmission Service, 71 FR 32636 (June 6, 2006). This notice establishes the agenda and procedures for the technical conference to be held on Thursday, October 12, 2006, from 9 a.m. to 4 p.m.
(EDT)at the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in the Commission Meeting Room. All interested persons are invited to attend, and registration is not required. This will be a staff conference, but Commissioners may attend. DATES: Commission staff will hold a technical conference on October 12, 2006. FOR FURTHER INFORMATION CONTACT: Daniel Hedberg, Office of Energy Markets and Reliability, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426,
(202)502-6243, *daniel.hedberg@ferc.gov* or Kathleen Barrón, Office of the General Counsel—Energy Markets, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426,
(202)502-6461, *kathleen.barron@ferc.gov* . SUPPLEMENTARY INFORMATION: Notice of Agenda and Procedures for Technical Conference This notice establishes the agenda and procedures for the technical conference to be held on Thursday, October 12, 2006, to discuss issues raised in the Notice of Proposed Rulemaking
(NOPR)issued in this proceeding. Preventing Undue Discrimination and Preference in Transmission Service, 71 FR 32636 (June 6, 2006), FERC Stats. & Regs. ¶ 32603 (2006). The technical conference will be held from 9 a.m. to 4 p.m.
(EDT)at the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in the Commission Meeting Room. 1 All interested persons are invited to attend, and registration is not required. This will be a staff conference, but Commissioners may attend. 1 The initial notice setting the date of this technical conference was issued on September 7, 2006. 71 FR 54053 (2006). The agenda for this conference is attached. In order to allot sufficient time for questions and responses, each speaker will be provided with five minutes for prepared remarks. Due to the limitation of time, slides and graphic displays (i.e, PowerPoint ® presentations) will not be permitted during the conference. Presenters who want to distribute copies of their prepared remarks or handouts should bring 100 double-sided copies to the technical conference. Presenters who wish to include comments, presentations, or handouts in the record for this proceeding should file their comments with the Commission. Comments may either be filed on paper or electronically via the eFiling link on the Commission's Web site at *http://www.ferc.gov* . A free Webcast of this event is available through *http://www.ferc.gov* . Anyone with Internet access who desires to view this event can do so by navigating to *http://www.ferc.gov* 's Calendar of Events and locating this event in the Calendar. The event will contain a link to its Webcast. The Capitol Connection provides technical support for the free Webcasts. It also offers access to this event via television in the DC area and via phone bridge for a fee. Visit *http://www.CapitolConnection.org* or contact Danelle Perkowski or David Reininger at the Capitol Connection at 703-993-3100 for information about this service. Commission conferences are accessible under section 508 of the Rehabilitation Act of 1973. For accessibility accommodations please send an e-mail to *accessibility@ferc.gov* or call toll free 1-866-208-3372 (voice) or 202-208-1659 (TTY), or send a fax to 202-208-2106 with the required accommodations. For more information about this conference, please contact: Daniel Hedberg, Office of Energy Markets and Reliability, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426,
(202)502-6243, *daniel.hedberg@ferc.gov* or Kathleen Barrón, Office of the General Counsel—Energy Markets, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426,
(202)502-6461, *kathleen.barron@ferc.gov* . Magalie R. Salas, Secretary. Agenda for OATT Reform Technical Conference, October 12, 2006 9 a.m.-9:15 a.m.—Opening Comments and Introductions. 9:15 a.m.-11:45 a.m.—Issues Relating to Coordinated, Open and Transparent Transmission Planning. • Presentations by Panelists: Verne Ingersoll, Director of Regional Planning, System Planning & Operations Department, Progress Energy, Inc. Sandra Johnson, Director, Transmission Asset Management, Xcel Energy, Inc. Jay Loock, Director, Technical Services, Western Electricity Coordinating Council. Pete Wybierala, Director, Transmission Planning, NRG Energy, Inc. On behalf of the Electric Power Supply Association (EPSA). James Yancey Kerr, II, Commissioner, North Carolina Utilities Commission; First Vice President, National Association of Regulatory Utility Commissioners (NARUC); Member, NARUC Electricity Committee. Michael J. Kormos, Senior Vice President, Reliability Services, PJM Interconnection L.L.C. Joel deJesus, Assistant General Counsel, National Grid. Terry J. Wolf, Manager of Transmission Services, Missouri River Energy Services, on behalf of Transmission Access Policy Study Group (TAPS). Will Kaul, Vice President, Transmission, Great River Energy, on behalf of National Rural Electric Cooperative Association (NRECA). • Panel discussion topics include related issues raised in the NOPR, as well as the following: 1. What is the appropriate geographic scope for an effective planning region or subregion? 2. Are there specific criteria that can be developed to define the scope and frequency of the congestion studies proposed in the NOPR? 3. Is an independent consultant necessary to facilitate planning? 4. What are some effective mechanisms for safeguarding confidentiality while permitting meaningful access to transmission information? 5. How should the planning obligation be coordinated with state processes? 6. If an open season requirement is added for large new transmission projects, what conditions or limitations should be associated with it? 7. Can the proposed regional planning requirement achieve its goals if the participants in the regional planning process have not achieved agreement among themselves on appropriate cost-allocation issues? If not, what can be done to encourage the development of such cost allocation agreements among regional planning participants? 8. What is the appropriate role for demand response in planning? 11:45 a.m.-12:30 p.m.—Lunch. 12:30 p.m.-1:45 p.m.—Discussion of ATC-related Reforms. • Presentations by Panelists: William
(Bill)Lohrman, Managing Director, Prague Power, LLC, on Behalf of North American Electric Reliability Council (NERC). Rae McQuade, President, North American Energy Standards Board (NAESB). Steven Naumann, Vice President, Wholesale Market Development, Exelon Corporation, on behalf of Edison Electric Institute (EEI). Michael Smith, Vice President, Regulatory and Legislative Affairs, Constellation Energy Commodities Group. Edward N.
(Nick)Henery, Director of Reliability, American Public Power Association (APPA). Jerry Smith, Alliance Partnership Manager, Arizona Public Service. • Panel discussion topics include related issues raised in the NOPR, as well as the following: 1. What are the challenges that NERC/NAESB and the industry face in the effort to enhance the consistency of certain definitions, data, modeling assumptions and components of the ATC calculation? Which of these elements are most critical to make consistent? Is a focus on comparability of ATC calculation and transparency more important than consistency of ATC calculation? 2. What is a reasonable timeline to achieve the consistency goal? 3. Are there common standards and modeling assumptions that can be developed to calculate TRM and CBM? 4. What are the most critical data to be exchanged among transmission providers to ensure that all are performing ATC calculations most accurately? How should that data be exchanged, what protocols should be used, and what forum should develop the protocols? 5. What is the most important data to make transparent? Regarding the Commission's proposal to require a narrative explanation for changes in monthly or yearly ATC, are there modifications that would achieve the Commission's transparency goals without imposing an undue burden on transmission providers? What ATC information posted in narrative form will be most beneficial? 6. Regarding the proposal to enhance OASIS postings, what are some industry tools/best practices that can be utilized to assist with this effort? 1:45 p.m.-2 p.m.—Break. 2 p.m.-4 p.m.—The Commission's Proposals Regarding Redispatch and Conditional Firm Service. • Presentations by Panelists (* Tentative Panelist): Don Furman, PPM Energy, on behalf of American Wind Energy Association (AWEA). Patricia Alexander, Consultant/Energy, Dickstein Shapiro LLP, on Behalf of Electric Power Supply Association (EPSA). John Lucas, Transmission Services Director, Southern Company Services, Inc. Lauren Nichols-Kinas, Bonneville Power Administration (BPA). Anthony Taylor, Director of Transmission, Williams Power Company, Inc. *Natalie McIntire, Senior Policy Associate, Renewable Northwest Project. • Panel discussion topics include related issues raised in the NOPR, as well as the following: 1. Are there improvements to the revised redispatch provision in the pro forma OATT (section 13.5) that are necessary to facilitate redispatch? 2. Would customers be willing to pay for the actual costs of redispatch in addition to the embedded costs of transmission to secure previously unavailable long-term transmission rights? How can the Commission best remove discretion in calculating these costs and create a method for verifying them? 3. What tools are available to allow redispatch to occur using resources other than those owned by the transmission provider? 4. Should curtailments under conditional firm service be specified based on a number of hours per month, when certain transmission constraints or elements bind, when certain load levels are present, or some other factor? How would these different methods be studied and implemented? Which method is preferable from the perspective of the potential conditional firm transmission customers, the network customers and the transmission providers? 5. What curtailment priority should be assigned to conditional firm service? Would this require changes to NERC curtailment protocols? How should changes between firm and non-firm service be handled in real-time systems? Would changes need to be made to e-tags or OASIS? 6. Should conditional firm service be offered indefinitely, or only as a bridge product until transmission upgrades are complete? [FR Doc. E6-16442 Filed 10-4-06; 8:45 am] BILLING CODE 6717-01-P DEPARTMENT OF THE INTERIOR Bureau of Indian Affairs 25 CFR Part 292 RIN 1076-AE81 Gaming on Trust Lands Acquired After October 17, 1988 AGENCY: Bureau of Indian Affairs, Interior. ACTION: Notice of proposed rulemaking. SUMMARY: The Bureau of Indian Affairs proposes to establish procedures that an Indian tribe must follow in seeking to conduct gaming on lands acquired after October 17, 1988. The Indian Gaming Regulatory Act allows Indian tribes to conduct class II and class III gaming activities on land acquired after October 17, 1988, only if the land meets certain exceptions. This proposed rule establishes a process for submitting and considering applications from Indian tribes seeking to conduct class II or class III gaming activities on lands acquired in trust after October 17, 1988. DATES: Comments must be received on or before December 4, 2006. ADDRESSES: You may submit comments, identified by the number 1076-AE-81, by any of the following methods: • *Federal rulemaking portal:* *http://www.regulations.gov* Follow the instructions for submitting comments. • *Fax:* 202-273-3153. • *Mail:* Mr. George Skibine, Director, Office of Indian Gaming Management, Office of the Deputy Assistant Secretary—Policy and Economic Development, 1849 C Street, NW., Mail Stop 3657-MIB, Washington, DC 20240. • *Hand delivery:* Office of Indian Gaming Management, Office of the Deputy Assistant Secretary—Policy and Economic Development, 1849 C Street, NW, Room 3657-MIB, Washington, DC, from 9 a.m. to 4 p.m., Monday through Friday. Comments on the information collection in this rule are separate from comments on the rule. If you wish to comment on the information collection, you may send a facsimile to
(202)395-6566. You may also e-mail comments to: *OIRA_DOCKET@omb.eop.gov.* FOR FURTHER INFORMATION CONTACT: George Skibine, Director, Office of Indian Gaming Management,
(202)219-4066. SUPPLEMENTARY INFORMATION: The authority to issue this document is vested in the Secretary of the Interior by 5 U.S.C. 301 and 25 U.S.C. 2, 9, and 2710. The Secretary has delegated this authority to the Principal Deputy Assistant Secretary—Indian Affairs by part 209 of the Departmental Manual. Background The Indian Gaming Regulatory Act (IGRA), 25 U.S.C. 2701-2721, was signed into law on October 17, 1988. Section 20 of IGRA, 25 U.S.C. 2719, prohibits gaming on lands that the Secretary of the Interior acquires in trust for an Indian tribe after October 17, 1988, unless the land qualifies under at least one of the exceptions contained in that section. If none of the exceptions in Section 20 applies, Section 20(b)(1)(A) of IGRA provides that gaming can still occur on the lands if:
(1)The Secretary consults with the Indian tribe and appropriate State and local officials, including officials of other nearby tribes;
(2)After consultation, the Secretary determines that a gaming establishment on newly acquired (trust) lands would be in the best interest of the Indian tribe and its members, and would not be detrimental to the surrounding community; and
(3)The Governor of the State in which the gaming activity is to be conducted concurs in the Secretary's determination. On September 28, 1994, the Bureau of Indian Affairs
(BIA)issued to all Regional Directors a Checklist for Gaming Acquisitions and Two-Part Determinations Under Section 20 of the Indian Gaming Regulatory Act. This Checklist was revised and replaced on February 18, 1997. On November 9, 2001, an October 2001 Checklist was issued revising the February 18, 1997 Checklist to include gaming related acquisitions. On March 7, 2005 a new Checklist was issued to all Regional Directors replacing the October 2001 Checklist. The proposed regulations implement Section 20 of the Indian Gaming Regulatory Act
(IGRA)by articulating standards that the Department will follow in interpreting the various exceptions to the gaming prohibition on after-acquired trust lands contained in Section 20 of IGRA. Subpart A of the draft proposed regulations define key terms contained in Section 20 or used in the regulation. Subpart B delineates how the Department will interpret the “settlement of a land claim” exception contained in Section 20(b)(1)(B)(i) of IGRA. This subpart clarifies that, in almost all instances, Congress must enact the settlement into law before the land can qualify under the exception. Subpart B also delineates what criteria must be met for a parcel of land to qualify under the “initial reservation” exception contained in Section 20 (b)(1)(B)(ii) of IGRA. The proposed regulation sets forth that the tribe must have present and historical connections to the land, and that the land must be proclaimed to be a new reservation pursuant to 25 U.S.C. 467 before the land can qualify under this exception. Finally, Subpart B articulates what criteria must be met for a parcel of land to qualify under the “restored land for a restored tribe” exception contained Section 20 (b)(1)(B)(iii) of IGRA. The proposed regulation sets forth the criteria for a tribe to qualify as a “restored tribe” and articulates the requirement for the parcel to qualify as “restored lands.” Essentially, the regulation requires the tribe to have modern connections to the land, historical connections to the area where the land is located, and requires a temporal connection between the acquisition of the land and the tribe's restoration. Subpart C sets forth how the Department will evaluate tribal applications for a two-part Secretarial Determination under Section 20(b)(1) of IGRA. Under this exception, gaming can occur on off-reservation trust lands if the Secretary, after consultation with appropriate State and local officials, including officials of nearby tribes, makes a determination that a gaming establishment would be in the best interest of the tribe and its members and would not be detrimental to the surrounding community. The Governor of the State must concur in any Secretarial two-part determination. The proposed regulation sets forth how consultation with local officials and nearby tribes will be conducted and articulates the factors the Department will consider in making the two-part determination. The proposed regulation also gives the State Governor up to one year to concur in a Secretarial two-part determination, with an additional 180 days extension at the request of either the Governor or the applicant tribe. Previous Rulemaking Activity On September 14, 2000, we published proposed regulations in the **Federal Register** (65 FR 55471) to establish procedures that an Indian tribe must follow in seeking a Secretarial Determination that a gaming establishment would be in the best interest of the Indian tribe and its members and would not be detrimental to the surrounding community. The comment period closed on November 13, 2000. On December 27, 2001 (66 FR 66847), we reopened the comment period to allow consideration of comments received after November 13, 2000, and to allow additional time for comment on the proposed rule. The comment period ended on March 27, 2002. On January 28, 2002 we published a notice in the **Federal Register** (67 FR 3846) to correct the Effective Date section which incorrectly stated that the deadline for receipt of comments was February 25, 2002 and was corrected to read “Comments must be received on or before March 27, 2002.” No further action was taken to publish the final rule. We are publishing a new proposed rule because we have determined that the rule should address not only the exception contained in Section 20(b)(1)(A) of IGRA (Secretarial Determination), but also the other exceptions contained in Section 20, in order to explain to the public how the Department interprets these exceptions. Procedural Requirements Regulatory Planning and Review (Executive Order 12866) This document has been determined not to be a significant regulatory action and is not subject to review by the Office of Management and Budget (OMB).
(a)This rule will not have an annual economic effect of $100 million or adversely affect an economic sector, productivity, jobs, the environment, or other units of government. The annual number of requests and applications to conduct gaming on trust lands under the exceptions or two-part determination of IGRA have been small. Since IGRA was enacted, approximately two applications per year qualify and have been approved to operate a gaming establishment on trust land under the general exceptions and only three positive two-part determinations have successfully qualified to operate a gaming establishment on trust land under the exception to the gaming prohibition in Section 20 (b)(1)(A) of IGRA.
(b)This rule will not create serious inconsistencies or otherwise interfere with an action taken or planned by another Federal agency. The Department of the Interior (DOI), BIA is the only governmental agency that makes the determination whether to take land into trust for Indian tribes.
(c)This rule will not materially affect entitlements, grants, user fees, loan programs, or the rights and obligations of their recipients. This rule sets out the procedures and criteria for the submission of an application from an Indian tribe seeking to conduct class II or class III gaming activities on land acquired by the Secretary of the Interior under Section 20 of the IGRA.
(d)OMB has determined that this rule will not raise novel legal or policy issues. For this reason, OMB review is not required under Executive Order 12866. Regulatory Flexibility Act The Department of the Interior certifies that this document will not have a significant economic effect on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 *et seq.* ). Indian tribes are not considered to be small entities for the purposes of this Act. Small Business Regulatory Enforcement Fairness Act (SBREFA) This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This rule:
(a)Does not have an annual effect on the economy of $100 million or more.
(b)Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions.
(c)Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises. Unfunded Mandates Reform Act This rule does not impose an unfunded mandate on State, local or tribal governments or the private sector of more than $100 million per year. The rule does not have a significant or unique effect on State, local or tribal government or the private sector. A statement containing the information required by the Unfunded Mandates Reform Act (2 U.S.C. 1531 *et seq.* ) is not required because only Indian tribes may conduct gaming activities on land acquired after October 17, 1988, only if the land meets the exceptions in Section 20 of IGRA. Takings Implication Assessment (Executive Order 12630) In accordance with Executive Order 12630, the Department has determined that this rule does not have significant takings implications. The rule does not pertain to the “taking” of private property interests, nor does it impact private property. A takings implication assessment is not required. Federalism (Executive Order 13132) In accordance with Executive Order 13121, the Department has determined that this rule does not have significant Federalism implications because it does not substantially and directly affect the relationship between the Federal and State governments and does not impose costs on States or localities. A Federalism Assessment is not required. Civil Justice Reform (Executive Order 12988) This rule complies with the requirements of Executive Order 12988. Specifically, this rule:
(a)Does not unduly burden the judicial system;
(b)Meets the criteria of section 3(a) requiring that all regulations be reviewed to eliminate errors and ambiguity and be written to minimize litigation; and
(c)Meets the criteria of section 3(b)(2) requiring that all regulations be written in clear language and contain clear legal standards. The rule does not preempt any statute. National Environmental Policy Act The Department has determined that this rule does not constitute a major Federal action significantly affecting the quality of the human environment and that no detailed statement is required under the National Environmental Policy Act of 1969. Paperwork Reduction Act The information collection has been reviewed and cleared by the Office of Information and Regulatory Affairs, Office of Management and Budget under the Paperwork Reduction Act of 1995, as amended. The collection has been assigned the tracking number of OMB Control Number 1076-0158. The clearance expires November 30, 2006. The collection of information is unique for each tribe even though each submission addresses the requirements found in § 292.16. All information is collected in the tribe's application. Respondents submit information in order to obtain a benefit. Each response is estimated to take 1,000 hours to review instructions, search existing data sources, gather and maintain necessary data, and prepare in format for submission. We anticipate that two responses will be submitted annually for an annual burden of 2,000 hours. Submit comments on the proposed information collection to Attention: Desk Officer for the Department of the Interior, Office of Information and Regulatory Affairs, OMB by facsimile at
(202)395-6566 or by e-mail to *OIRA_DOCKET@omb.eop.gov.* You should also send comments to the BIA official as found in the ADDRESSES section. The BIA solicits comments in order to:
(1)Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the BIA, including whether the information will have practical utility;
(2)Evaluate the BIA's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(3)Enhance the quality, utility, and clarity of the information to be collected; and
(4)Minimize the burden of the collection of information on those who are to respond. OMB is required to make a decision between 30 and 60 days after publication of this document in the **Federal Register** . Therefore, your comment to OMB has the best chance of being considered if OMB receives it within 30 days of publication. This does not affect the deadline for the public to comment to BIA on the proposed rule. Consultation With Indian tribes (Executive Order 13175) Under the criteria in Executive Order 13175, we have conducted consultation meetings with tribal leaders regarding the proposed regulations in the following locations: Uncasville, Connecticut on March 30, 2006; Albuquerque, New Mexico on April 5, 2006; Sacramento, California on April 18, 2006 and Minneapolis, Minnesota on April 20, 2006. A notice of the consultation meetings was published in the **Federal Register** on April 11, 2006 (71 FR 18350). In addition, a draft regulation was sent to all tribal leaders in the lower 48 states on March 15, 2006, seeking comments on the draft regulation. Numerous comments were received by the Department. The Department revised the draft regulation in response to written comments and oral comments received at the consultation meetings. No action is taken under this rule unless a tribe submits an application to acquire land under Section 20 of IGRA. Effects on the Nation's Energy Supply (Executive Order 13211) This rule does not have a significant effect on the nation's energy supply, distribution, or use as defined by Executive Order 13211. Data Quality Act In developing this rule, we did not conduct or use a study, experiment, or survey requiring peer review under the Data Quality Act (Pub. L. 106-554). Clarity of This Rule We are required by Executive Orders 12866 and 12988 and by the Presidential Memorandum of June 1, 1998, to write all rules in plain language. This means that each rule we publish must: • Be logically organized; • Use the active voice to address readers directly; • Use clear language rather than jargon; • Be divided into short sections and sentences; and • Use lists and tables wherever possible. If you feel that we have not met these requirements, send us comments as instructed in the ADDRESSES section. To better help us revise the rule, your comments should be as specific as possible. For example, you should tell us the numbers of the specific sections that are unclearly written, which sections or sentences are too long, the sections where you feel lists or tables would be useful, etc. Public Comment Solicitation If you wish to comment on the rule, please see the different methods listed in the ADDRESSES section; we cannot accept comments via the Internet at this time. Our practice is to make comments, including names and home addresses of respondents, available for public review during the hours listed in the ADDRESSES section. Individual respondents may request that we withhold their home address from the rulemaking record, which we will honor to the extent allowable by law. There may be circumstances in which we would withhold from the rulemaking record a respondent's identity, as allowable by law. If you wish us to withhold your name and/or address, you must state this prominently at the beginning of your comment. However, we will not consider anonymous comments. We will make all submissions from organizations or businesses, and from individuals identifying themselves as representatives or officials of organizations or businesses, available for public inspection in their entirety. List of Subjects in 25 CFR Part 290 Indians—Business and finance, Indians—gaming. Dated: September 18, 2006. Michael D. Olsen, Principal Deputy Assistant Secretary—Indian Affairs. For reasons stated in the preamble, the Bureau of Indian Affairs proposes to add Part 292 to Chapter I of Title 25 of the Code of Federal Regulations as follows: PART 292—GAMING ON TRUST LANDS ACQUIRED AFTER OCTOBER 17, 1988 Subpart A—General Provisions Sec. 292.1 What is the purpose of this part? 292.2 How are key terms defined in this part? 292.3 When can a tribe conduct gaming activities on trust lands? Subpart B—Exceptions to Prohibition on Gaming on After-Acquired Trust Lands 292.4 What criteria must trust land meet for gaming to be allowed under the exceptions listed in 25 U.S.C. 2719(a) of IGRA? “Settlement of a Land Claim” Exception 292.5 What must be demonstrated to meet the “settlement of a land claim” exception? “Initial Reservation” Exception 292.6 What must be demonstrated to meet the “initial reservation” exception? “Restored Lands” Exception 292.7 What must be demonstrated to meet the “restored lands” exception? 292.8 How does a tribe qualify as having been Federally recognized? 292.9 How does a tribe show that it lost its government-to-government relationship? 292.10 How does a tribe qualify as having been restored to Federal recognition? 292.11 What are “restored lands”? 292.12 How does a tribe establish its connection to the land? Subpart C—Secretarial Determination and Governor's Concurrence 292.13 When can a tribe conduct gaming activities on lands that do not qualify under one of the exceptions? 292.14 Where must a tribe file an application for a Secretarial Determination? 292.15 May a tribe request a Secretarial Determination for lands not yet held in trust? Application Contents 292.16 What must an application for a Secretarial Determination contain? 292.17 How must an application describe the benefits of a proposed gaming establishment to the tribe and its members? 292.18 What information must an application contain on detrimental impacts to the surrounding community? Consultation 292.19 How will the Regional Director conduct the consultation process? 292.20 What information must the consultation letter include? Evaluation and Concurrence 292.21 How will the Secretary evaluate a proposed gaming establishment? 292.22 How does the Secretary request the Governor's concurrence? 292.23 Can the public review the application for a Secretarial Determination? Information Collection 292.24 Do information collections in this part have Office of Management and Budget approval? Authority: 5 U.S.C. 301, 25 U.S.C. 2, 9, 2719, 43 U.S.C. 1457. Subpart A—General Provisions § 292.1 What is the purpose of this part? This part contains procedures that the Department of the Interior will use to determine whether class II or class III gaming can occur on land acquired in trust for an Indian tribe after October 17, 1988. § 292.2 How are key terms defined in this part? For purposes of this part, all terms have the same meaning as set forth in the definitional section of the Indian Gaming Regulatory Act (IGRA), 25 U.S.C. 2703. In addition, the following terms have the meanings given in this section. *Appropriate State and Local Officials* means the Governor of the State and appropriate officials of units of local government within 25 miles of the site of the proposed gaming establishment. *BIA* means Bureau of Indian Affairs. *Contiguous* means two parcels of land having a common boundary. For example, it includes parcels divided by non-navigable waters or a public road or right-of-way. *Federal recognition or Federally recognized* means the recognition by the Secretary that an Indian tribe has a government-to-government relationship with the United States and is eligible for the special programs and services provided by the United States to Indians because of their status as Indians, and evidenced by inclusion of the tribe on the list of recognized tribes published by the Secretary under 25 U.S.C. 479a-1. *Former Reservation* means lands that are within the jurisdiction of an Oklahoma Indian tribe and that are within the boundaries of the last reservation for that tribe in Oklahoma established by treaty, Executive Order, or Secretarial Order. *IGRA* means the Indian Gaming Regulatory Act of 1988, as amended and codified at 25 U.S.C. 2701-2721. *Land claim* means any claim by an Indian tribe:
(1)Arising from a Federal common law, statutory or treaty-based restraint against alienation of Indian land; and
(2)Made against an individual person or entity (either private, public, or governmental). *Legislative termination* means Federal legislation that specifically terminates or prohibits the government-to-government relationship with an Indian tribe or that otherwise specifically denies the tribe [and/or its members] access to or eligibility for government services. *Nearby Indian tribe* means an Indian tribe with tribal Indian lands, as defined in 25 U.S.C. 2703(4) of IGRA, located within a 25-mile radius of the location of the proposed gaming establishment, or, if the tribe is landless, within a 25-mile radius of its government headquarters. *Regional Director* means the official in charge of the BIA Regional Office responsible for all BIA activities within the geographical area where the proposed gaming establishment is to be located. *Reservation* means that area of land which has been set aside or which has been acknowledged as having been set aside by the United States for the use of the tribe, the exterior boundaries of which are more particularly defined in a final treaty, agreement, Executive Order, Federal statute, Secretarial Order or Proclamation, judicial determination, or court-approved stipulated entry of judgment to which the United States is a party. *Secretary* means the Secretary of the Interior or an authorized representative. *Secretarial Determination* means a two-part determination that a gaming establishment on newly acquired lands:
(1)Would be in the best interest of the Indian tribe and its members; and
(2)Would not be detrimental to the surrounding community. *Surrounding community* means local governments and nearby Indian tribes located within 25 miles of the site of the proposed gaming establishments. *Tribe* means an Indian tribe. § 292.3 When can a tribe conduct gaming activities on trust lands? This section implements Section 20 of IGRA (25 U.S.C. 2719). A tribe may conduct class II or class III gaming activities on land acquired by the Secretary in trust for the benefit of a tribe after October 17, 1988, only if:
(a)The land meets the criteria or exceptions in Subpart B; or
(b)The Secretary makes a determination under Subpart C of this part and the Governor of the State in which the gaming activity is to be conducted concurs in that determination. Subpart B—Exceptions to Prohibition on Gaming on After-Acquired Trust Lands § 292.4 What criteria must trust land meet for gaming to be allowed under the exceptions listed in 25 U.S.C. 2719(a) of IGRA?
(a)For class II or class III gaming to be allowed on trust or restricted fee land under section 2719(a)(1) of IGRA, the land must either:
(1)Be located within or contiguous to the boundaries of the reservation of the tribe on October 17, 1988; or
(2)Meet the requirements of paragraph
(b)of this section.
(b)For land to be eligible under this paragraph, it must belong to a tribe that had no reservation on October 17, 1988, and must be located:
(1)Within the boundaries of the tribe's former reservation;
(2)Contiguous to other land held in trust or restricted status by the United States for the tribe in Oklahoma; or
(3)In a state other than Oklahoma and within the tribe's last recognized reservation within the State or States within which the tribe is now located. “Settlement of a Land Claim” Exception § 292.5 What must be demonstrated to meet the “settlement of a land claim” exception? This section contains criteria for meeting the requirements of IGRA Section 20(b)(1)(B)(i).
(a)Gaming may be conducted on lands covered by this section only when the land has been acquired in trust as part of the settlement of a land claim that either:
(1)Has been filed in Federal court and has not been dismissed on substantive grounds; or
(2)Is included on the Department's list of potential pre-1966 claims published under the Indian Claims Limitation Act of 1982 (Pub. L. 97-394, 28 U.S.C. 2415) and meets the criteria in paragraph
(b)of this section.
(b)To be eligible under paragraph (a)(2) of this section, land must be covered by a settlement that either:
(1)States that the tribe is relinquishing its legal claim to some or all of the lands as part of the settlement, results in the alienation or transfer of title to tribal lands within the meaning of 25 U.S.C. 177, and has been enacted into law by the United States Congress; or,
(2)Returns to the tribe lands identical to the lands claimed by the tribe, does not involve an alienation or transfer of title to tribal lands that is prohibited under 25 U.S.C. 177, and is either:
(i)Duly executed by the parties and entered as a final order of a Federal court of competent jurisdiction; or
(ii)Settled by an agreement executed by the State in which the lands claimed by the tribe are located. “Initial Reservation” Exception § 292.6 What must be demonstrated to meet the “initial reservation” exception? This section contains criteria for meeting the requirements of IGRA Section 20(b)(1)(B)(ii). Under this section, gaming may be conducted only when all of the following conditions are met:
(a)The tribe has been acknowledged (Federally recognized) through the administrative process under 25 CFR Part 83;
(b)A majority of the tribe's members reside within 50 miles of the location of the land or the tribe's government headquarters are located within 25 miles of the location of the land;
(c)The land is located within an area where the tribe has significant historical and cultural connections;
(d)The land has been proclaimed to be a reservation under 25 U.S.C. 467; and
(e)This reservation is the first proclaimed reservation of the tribe following acknowledgment. “Restored Lands” Exception § 292.7 What must be demonstrated to meet the “restored lands” exception? This section contains criteria for meeting the requirements of IGRA Section 20(b)(1)(B)(iii), called the “restored lands” exception. The term “restored lands” is defined in § 292.11. Gaming may only occur under this section when all of the following criteria have been met:
(a)The tribe at one time was Federally recognized, as evidenced by its meeting the criteria in § 292.8;
(b)The tribe at some later time lost its government-to-government relationship by one of the means specified in § 292.9; and
(c)At a time after termination, the Tribe was restored to Federal recognition by one of the means specified in § 292.10. § 292.8 How does a tribe qualify as having been Federally recognized? For a tribe to qualify as having been at one time Federally recognized for purposes of § 292.7, at least one of the following must be true:
(a)The United States at one time entered into treaty negotiations with the tribe;
(b)The Department determined that the tribe could organize under the Indian Reorganization Act or the Oklahoma Indian Welfare Act;
(c)Congress enacted legislation specific to, or including, the tribe indicating that a government-to-government relationship existed;
(d)The United States at one time acquired land for the tribe's benefit; or
(e)Some other evidence demonstrates the existence of a government-to-government relationship between the tribe and the Federal Government. § 292.9 How does a tribe show that it lost its government-to-government relationship? For a tribe to qualify for purposes of § 292.7, it must have lost its government-to-government relationship by one of the following means:
(a)Legislative termination; or
(b)Termination demonstrated by historical written documentation from the Departments of the Interior or Justice. The documents must show that the Executive Branch no longer recognized the government-to-government relationship with the tribe or its members. § 292.10 How does a tribe qualify as having been restored to Federal recognition? For a tribe to qualify as having been restored to Federal recognition for purposes of § 292.7, the tribe must show at least one of the following:
(a)Congressional enactment of legislation recognizing, acknowledging, or restoring the government-to-government relationship between the United States and the tribal government (required for tribes terminated by Congressional action);
(b)Recognition through the administrative Federal Acknowledgment Process under 25 CFR 83.8; or
(c)A judicial determination or court-approved stipulated entry of judgment that:
(1)Was entered into by the United States; and
(2)Provides that the tribe's government-to-government relationship with the United States was never legally terminated despite action by the Executive Branch purporting to terminate the relationship with the tribe or its members. § 292.11 What are “restored lands?” For lands to qualify as “restored lands” for purposes of § 292.7, it must be demonstrated that:
(a)The legislation restoring the government-to-government relationship between the United States and the tribe requires or authorizes the Secretary to take land into trust within a specific geographical area and the lands are within the specific geographical area; or
(b)If there is no restoration legislation, or if the restoration legislation does not provide geographic parameters for the restoration of lands, the tribe has a modern connection and a significant historical connection to the land and there is a temporal connection between the date of the acquisition of the land and the date of the Tribe's restoration; and
(c)If the tribe is acknowledged under 25 CFR 83.8, it does not already have an initial reservation proclaimed after October 17, 1988. § 292.12 How does a tribe establish its connection to the land? To establish a connection to the land for purposes of § 292.11, the tribe must meet the criteria in paragraphs (a), (b), and
(c)of this section.
(a)A modern connection is established if a majority of the tribe's members reside within 50 miles of the land or if the tribe's government headquarters are located within 25 miles of the land.
(b)A significant historical connection to the land can be established if:
(1)The land is located within the boundaries of the tribe's last reservation reserved to the tribe by a ratified or unratified treaty; or
(2)The land is located in an area to which the tribe has significant documented historical connections, significant weight being given to historical connections documented by official records of the Bureau of Indian Affairs or the Department of the Interior, or by the Indian Claims Commission, other Federal court, or congressional findings.
(c)A reasonable temporal connection between the date of the acquisition of the land and the date of the tribe's restoration is established if:
(1)The land is the first land that the tribe has acquired since the tribe was restored to Federal recognition; or
(2)The tribe submitted an application to take the land into trust within 25 years after the tribe was restored to Federal recognition. Subpart C—Secretarial Determination and Governor's Concurrence § 292.13 When can a tribe conduct gaming activities on lands that do not qualify under one of the exceptions? A tribe can conduct gaming on land covered by this part that does not meet the criteria in Subpart B only after all of the following occur:
(a)The tribe asks the Secretary in writing to make a Secretarial Determination that a gaming establishment on land subject to this part is in the best interest of the tribe and its members and not detrimental to the surrounding community;
(b)The Secretary consults with the tribe and appropriate State and local officials, including officials of other nearby tribes;
(c)The Secretary makes a determination that a gaming establishment on newly acquired lands would be in the best interest of the tribe and its members and would not be detrimental to the surrounding community; and
(d)The Governor of the State in which the gaming activity is to be conducted concurs in the Secretary's Determination (25 U.S.C. 2719(b)(1)(A)). § 292.14 Where must a tribe file an application for a Secretarial Determination? A tribe must file its application for a Secretarial Determination with the Regional Director of the BIA Regional Office having responsibility over the land where the gaming establishment is to be located. § 292.15 May a tribe apply for a Secretarial Determination for lands not yet held in trust? Yes. A tribe can apply for a two-part Secretarial Determination under § 292.13 for land not yet held in trust. The tribe must file its application for a two-part Secretarial Determination at the same time that it applies under 25 CFR Part 151 to have the land taken into trust. Application Contents § 292.16 What must an application for a Secretarial Determination contain? An application requesting a Secretarial Determination under § 292.13 must include the following information:
(a)The full name, address, and telephone number of the tribe submitting the application;
(b)A description of the location of the land, including a legal description supported by a survey or other document;
(c)Proof of identity of present ownership and title status of the land;
(d)Distance of the land from the tribe's reservation or trust lands, if any, and tribal government headquarters;
(e)Information required by § 292.17 to assist the Secretary in determining whether the proposed gaming establishment will be in the best interest of the tribe and its members;
(f)Information required by § 292.18 to assist the Secretary in determining whether the proposed gaming establishment will not be detrimental to the surrounding community;
(g)The authorizing resolution from the tribe submitting the application;
(h)The tribe's gaming ordinance or resolution approved by the National Indian Gaming Commission in accordance with 25 U.S.C. 2710, if any;
(i)The tribe's organic documents, if any;
(j)The tribe's class III gaming compact with the State where the gaming establishment is to be located, if one has been negotiated; and
(k)Any existing or proposed management contract required to be approved by the National Indian Gaming Commission under 25 U.S.C. 2711 and 25 CFR Part 533. § 292.17 How must an application describe the benefits of a proposed gaming establishment to the tribe and its members? To satisfy the requirements of § 292.16(e), an application must contain:
(a)Projections of class II and class III gaming income statements, balance sheets, fixed assets accounting, and cash flow statements for the gaming entity and the tribe;
(b)Projected tribal employment, job training, and career development;
(c)Projected benefits to the tribe and its members from tourism;
(d)Projected benefits to the tribe and its members from the proposed uses of the increased tribal income;
(e)Projected benefits to the relationship between the tribe and non-Indian communities;
(f)Possible adverse impacts on the tribe and its members and plans for addressing those impacts;
(g)Distance of the land from the location where the tribe maintains core governmental functions;
(h)Evidence that the tribe owns the land in fee or holds an option to acquire the land at the sole discretion of the tribe, or holds other contractual rights to cause the lands to be transferred directly to the United States;
(i)Evidence of historical connections, if any, to the land; and
(j)Any other information that may provide a basis for a Secretarial Determination that the gaming establishment would be in the best interest of the tribe and its members, including copies of any:
(1)Consulting agreements relating to the proposed gaming establishment;
(2)Financial and loan agreements relating to the proposed gaming establishment; and
(3)Other agreements relative to the purchase, acquisition, construction, or financing of the proposed gaming facility, or the acquisition of the land where the facility will be located. § 292.18 What information must an application contain on detrimental impacts to the surrounding community? To satisfy the requirements of § 292.16(f), an application must contain the following information on detrimental impacts of the proposed gaming establishment:
(a)Information regarding environmental impacts and plans for mitigating adverse impacts, including information that allows the Secretary to comply with the requirements of the National Environmental Policy Act (NEPA); e.g., an Environmental Assessment
(EA)or an Environmental Impact Statement (EIS);
(b)Reasonably anticipated impacts on the social structure, infrastructure, services, housing, community character, and land use patterns of the surrounding community;
(c)Impacts on the economic development, income, and employment of the surrounding community;
(d)Costs of impacts to the surrounding community and identification of sources of revenue to mitigate them;
(e)Proposed programs, if any, for compulsive gamblers and the sources of funding; and
(f)Any other information that may provide a basis for a Secretarial Determination that the gaming would not be detrimental to the surrounding community, including memoranda of understanding and inter-governmental agreements with affected local governments. Consultation § 292.19 How will the Regional Director conduct the consultation process?
(a)The Regional Director will send a letter that meets the requirements in § 292.20 and that solicits comments within a 60-day period to each of the following:
(1)Appropriate State and local officials; and
(2)Officials of nearby tribes.
(b)Upon written request, the Regional Director may extend the 60-day comment period for an additional 30 days.
(c)After the close of the consultation period, the Regional Director must:
(1)Submit a copy of the consultation comments to the applicant tribe;
(2)Allow the tribe to address or resolve any issues raised in the responses to the consultation letters;
(d)The applicant tribe must submit written comments, if any, to the Regional Director within 60 days of receipt of the consultation comments; and
(e)On written request from the applicant tribe, the Regional Director may extend the 60-day comment period in paragraph
(d)of this section for an additional 30 days. § 292.20 What information must the consultation letter include?
(a)The consultation letter required by § 292.19(a) must:
(1)Describe or show the location of the proposed gaming establishment;
(2)Provide information on the proposed scope of gaming; and
(3)Include other information that may be relevant to a specific proposal, such as the size of the proposed gaming establishment, if known.
(b)The consultation letter must request recipients to submit comments on the following areas within 60 days of receiving the letter:
(1)Information regarding environmental impacts on the surrounding community and plans for mitigating adverse impacts;
(2)Reasonably anticipated impacts on the social structure, infrastructure, services, housing, community character, and land use patterns of the surrounding community;
(3)Impact on the economic development, income, and employment of the surrounding community;
(4)Costs of impacts to the surrounding community and identification of sources of revenue to mitigate them;
(5)Proposed programs, if any, for compulsive gamblers and the sources of funding; and
(6)Any other information that may provide a basis for a Secretarial Determination that the proposed gaming establishment is not detrimental to the surrounding community. Evaluation and Concurrence § 292.21 How will the Secretary evaluate a proposed gaming establishment?
(a)The Secretary will consider all the information submitted under § 292.17 in evaluating whether the proposed gaming establishment is in the best interest of the tribe and its members.
(b)The Secretary will consider all the information submitted or developed under § 292.18 and all the documentation received under § 292.19 in evaluating whether the proposed gaming establishment would not be detrimental to the surrounding community.
(c)If the Secretary makes an unfavorable Secretarial Determination, the Secretary will inform the tribe that its application has been disapproved, and set forth the reasons for the disapproval.
(d)If the Secretary makes a favorable Secretarial Determination, the Secretary will proceed under § 292.22. § 292.22 How does the Secretary request the Governor's concurrence?
(a)If the Secretary makes a favorable Secretarial Determination, the Secretary will send to the Governor of the State:
(1)A written notification of the Secretarial Determination and Findings of Fact supporting the determination;
(2)A copy of the entire application record; and
(3)A request for the Governor's concurrence in the Secretarial Determination.
(b)If the Governor does not affirmatively concur with the Secretarial Determination:
(1)The land may not be used for gaming;
(2)If the land is already held in trust, the applicant tribe may use it for other purposes; and
(3)If the land is proposed for trust status, it may be taken into trust for non-gaming uses after consideration of a revised application.
(c)If the Governor does not respond to the Secretary's request for concurrence in the Secretarial Determination within one year of the date of the request, the Secretary may, at the request of the applicant tribe or the Governor, grant an extension of up to 180 days.
(d)If no extension is granted or if the Governor does not respond during the extension period, the applicant tribe will be notified in writing that the Secretarial Determination is no longer valid and that its application is no longer under consideration. § 292.23 Can the public review the application for a Secretarial Determination? Subject to restrictions on disclosure required by the Freedom of Information Act (5 U.S.C. 552), the Privacy Act (5 U.S.C. 552a), and the Trade Secrets Act (18 U.S.C. 1905), the tribe's application and all supporting documents will be available for review at the local BIA agency or Regional Office having administrative jurisdiction over the land. Information Collection § 292.24 Do information collections in this part have Office of Management and Budget approval? The information collection requirements in §§ 292.16, 292.17, and 292.18 have been approved by the Office of Management and Budget (OMB). The information collection control number is 1076-0158. A Federal agency may not collect or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control. [FR Doc. E6-16490 Filed 10-4-06; 8:45 am] BILLING CODE 4310-4N-P DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 117 [CGD05-06-089] RIN 1625-AA09 Drawbridge Operation Regulations; Lewes and Rehoboth Canal, Mispillion River, DE AGENCY: Coast Guard, DHS. ACTION: Notice of proposed rulemaking. SUMMARY: The Coast Guard proposes to change the drawbridge operation regulations of three Delaware Department of Transportation (DelDOT) bridges: The Savannah Road/SR 18 Bridge, at mile 1.7, in Lewes, the SR 14A Bridge, at mile 6.7, in Rehoboth, and the S14 Bridge, at mile 11.0, across Mispillion River at Milford, DE. This proposal would allow the bridges to open on signal if 24 hours advance notice is given. This proposal would provide longer advance notification for vessel openings from 2 hours to 24 hours while still providing for the reasonable needs of navigation. DATES: Comments and related material must reach the Coast Guard on or before November 20, 2006. ADDRESSES: You may mail comments and related material to Commander (dpb), Fifth Coast Guard District, Federal Building, 1st Floor, 431 Crawford Street, Portsmouth, VA 23704-5004. The Fifth Coast Guard District maintains the public docket for this rulemaking. Comments and material received from the public, as well as documents indicated in this preamble as being available in the docket, will become part of this docket and will be available for inspection or copying at Commander (dpb), Fifth Coast Guard District between 8 a.m. and 4 p.m., Monday through Friday, except Federal holidays. FOR FURTHER INFORMATION CONTACT: Waverly W. Gregory, Jr., Bridge Administrator, Fifth Coast Guard District, at
(757)398-6222. SUPPLEMENTARY INFORMATION: Request for Comments We encourage you to participate in this rulemaking by submitting comments and related material. If you do so, please include your name and address, identify the docket number for this rulemaking CGD05-06-089, indicate the specific section of this document to which each comment applies, and give the reason for each comment. Please submit all comments and related material in an unbound format, no larger than 8 1/2 by 11 inches, suitable for copying. If you would like a return receipt, please enclose a stamped, self-addressed postcard or envelope. We will consider all submittals received during the comment period. We may change this proposed rule in view of them. Public Meeting We do not now plan to hold a public meeting. But you may submit a request for a meeting by writing to Commander (obr), Fifth Coast Guard District at the address under ADDRESSES explaining why one would be beneficial. If we determine that one would aid this rulemaking, we will hold one at a time and place announced by a later notice in the **Federal Register** . Background and Purpose Delaware Department of Transportation (DelDOT), who owns and operates the Savannah Road/SR 18 Bridge, at mile 1.7, in Lewes, the SR 14A Bridge, at mile 6.7, in Rehoboth, and the S14 Bridge, at mile 11.0, across Mispillion River at Milford, requested longer advance notification for vessel openings from 2 hours to 24 hours for the following reasons: Lewes and Rehoboth Canal In the closed-to-navigation position, the Savannah Road/SR 18 Bridge, at mile 1.7, in Lewes and the SR 14A Bridge, at mile 6.7, in Rehoboth, have vertical clearances of 15 feet and 16 feet, above mean high water, respectively. The existing operating regulations for these drawbridges are set out in 33 CFR 117.239, which requires the bridges to open on signal from May 1 through October 31 from 7 a.m. to 8 p.m. and from 8 p.m. to 7 a.m. if at least two hours notice is given. From November 1 through April 30, the draws shall open if at least 24 hours notice given. DelDOT provided information to the Coast Guard about the conditions and reduced operational capabilities of the draw spans. Due to the infrequency of requests for vessel openings of the drawbridge for the past 10 years, DelDOT requested to change the current operating regulations by requiring the draw spans to open on signal if at least 24 hours notice is given year-round. Mispillion River The S14 Bridge, at mile 11.0 in at Milford, has a vertical clearance of five feet, above mean high water, in the closed-to-navigation position. The existing regulation is listed at 33 CFR 117.241, which requires the bridge to open on signal if at least two hours notice is given. Due to the infrequency of requests for vessel openings of the drawbridge for the past 10 years, DelDOT requested to change the current operating regulations by requiring the draw spans to open on signal if at least 24 hours notice is given year-round. Discussion of Proposed Rule Lewes and Rehoboth Canal The Coast Guard proposes to revise 33 CFR 117.239, which governs the Delaware highway bridges, at miles 1.7 and 6.7, both at Rehoboth. The bridge names, the statute mile points and the localities in the paragraph would be changed from the “Delaware highway bridges miles 2.0 and 7.0 both at Rehoboth” to the “Savannah Road/SR18 Bridge, at mile 1.7, in Lewes” and the “SR 14A Bridge, at mile 6.7, in Rehoboth”. These changes will accurately reflect the proper information for these drawbridges. The current paragraph would be divided into paragraphs
(a)and (b). Paragraph
(a)would contain the proposed rule for the Savannah Road/SR 18 Bridge, at mile 1.7, in Lewes and would state that the draw shall open on signal if at least 24 hours notice is given. Paragraph
(b)would contain the proposed rule for the SR 14A Bridge, at mile 6.7, in Rehoboth. The proposal would require the drawbridge to open on signal if at least 24 hours notice is given. Mispillion River The Coast Guard proposes to amend 33 CFR 117.241, which governs the S14 Bridge, at mile 11.0, at Milford by revising the paragraph to read that the draw shall open on signal if at least 24 hours notice is given. Text modifications to be consistent with other proposed changes would be made in these paragraphs, as appropriate. 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. We reached this conclusion based on the fact that the proposed changes have only a minimal impact on maritime traffic transiting the bridge. Mariners can plan their trips in accordance with the proposed scheduled bridge openings, to minimize delays. Small Entities Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this proposed rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule would not have a significant economic impact on a substantial number of small entities. This proposed rule would not have a significant economic impact on a substantial number of small entities because the rule only adds minimal restrictions to the movement of navigation, and mariners who plan their transits in accordance with the proposed scheduled bridge openings can minimize delay. 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 want to assist small entities in understanding this proposed rule so that they can better evaluate its effects on them and participate in the rulemaking. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact Waverly W. Gregory, Jr., Bridge Administrator, Fifth Coast Guard District, and
(757)398-6222. The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard. Collection of Information This proposed 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 proposed 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 proposed 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 proposed rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden. Protection of Children We have analyzed this proposed rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and would not create an environmental risk to health or risk to safety that might disproportionately affect children. Indian Tribal Governments This proposed rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. Energy Effects We have analyzed this proposed rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211. 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 proposed rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards. Environment We have analyzed this proposed 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 made a preliminary determination that there are no factors in this case that would limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Therefore, we believe that this rule should be categorically excluded, under figure 2-1, paragraph (32)(e) of the Instruction, from further environmental documentation. Under figure 2-1, paragraph (32)(e), 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 117 Bridges. For the reasons discussed in the preamble, the Coast Guard proposes to amend 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. Revise § 117.239 to read as follows: § 117.239 Lewes and Rehoboth Canal.
(a)The draw of the Savannah Road/SR 18 Bridge, at mile 1.7, in Lewes shall open on signal if at least 24 hours notice is given.
(b)The draw of the SR 14A Bridge, at mile 6.7, in Rehoboth shall open on signal if at least 24 hours notice is given. 3. Revise § 117.241 to read as follows: § 117.241 Mispillion River. The draw of the S14 Bridge, at mile 11.0, at Milford shall open on signal if at least 24 hours notice is given. Dated: September 18, 2006. L.L. Hereth, Rear Admiral, U.S. Coast Guard, Commander, Fifth Coast Guard District. [FR Doc. E6-16427 Filed 10-4-06; 8:45 am] BILLING CODE 4910-15-P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 635 [Docket No. 060925247-6247-01; I.D. 091106B] RIN 0648-AU84 Atlantic Highly Migratory Species; Atlantic Commercial Shark Management Measures AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Proposed rule; request for comments. SUMMARY: This proposed rule would establish the 2007 first trimester season quotas for large coastal sharks (LCS), small coastal sharks (SCS), and pelagic sharks. The proposed rule also would modify the existing mid-Atlantic shark closed area in 2007. In addition, this rule proposes the opening and closing dates for the LCS fishery based on adjustments to the trimester quotas. The intended effect of these proposed actions is to provide advance notice of quotas and season dates for the Atlantic commercial shark fishery and address over- and underharvests that occurred in the Atlantic shark fishery in the first trimester of 2006. DATES: Written comments will be accepted until November 1, 2006. Public hearings will be held from 6-8 p.m. on each of the following dates: October 19, 23, and 25. ADDRESSES: Written comments on the proposed rule may be submitted to Michael Clark, Highly Migratory Species Management Division via: • E-mail: *SF1.091106B@noaa.gov* . • Mail: 1315 East-West Highway, Silver Spring, MD 20910. Please mark on the outside of the envelope “Comments on Proposed Rule for 2007 1st Trimester Season Lengths and Quotas.” • Fax: 301-713-1917. • Federal e-Rulemaking portal: *http://www.regulations.gov* . Include in the subject line the following identifier: I.D. 091106B. The hearing locations are: 1. October 19, 2006 from 6-8 p.m. City of Madeira Beach, 300 Municipal Drive, Madeira Beach, FL 33708. 2. October 23, 2006 from 6-8 p.m. Town Hall, 407 Budleigh Street, Manteo, NC 27954. 3. October 25, 2006 from 6-8 p.m. Comfort Inn and Suites Port Canaveral Area, 3901 N. Atlantic Avenue, Cocoa Beach, FL 32931. Copies of the draft Environmental Assessment
(EA)and other relevant document are available from the HMS website ( *http://www.nmfs.noaa.gov/sfa/hms/* ), or by contacting Michael Clark (see FOR FURTHER INFORMATION CONTACT ). FOR FURTHER INFORMATION CONTACT: Michael Clark or Karyl Brewster-Geisz by phone: 301-713-2347 or by fax: 301-713-1917. SUPPLEMENTARY INFORMATION: Background The Atlantic shark fishery is managed under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act). NMFS recently finalized a Consolidated Highly Migratory Species Fishery Management Plan (HMS FMP) that consolidated and replaced previous FMPs for Atlantic Billfish and Atlantic Tunas, Swordfish, and Sharks. The HMS FMP is implemented by regulations at 50 CFR part 635. Currently, the Atlantic shark annual quotas, with the exception of pelagic sharks, are split among three regions based on historic landings (1999 - 2003). Consistent with 50 CFR 635.27(b)(1)(iii) and (iv), the annual LCS quota (1,017 mt dw) is split among the three regions as follows: 52 percent to the Gulf of Mexico, 41 percent to the South Atlantic, and 7 percent to the North Atlantic. The annual SCS quota (454 mt dw) is split among the three regions as follows: 10 percent to the Gulf of Mexico, 87 percent to the South Atlantic, and 3 percent to the North Atlantic. The regional quotas for LCS and SCS were divided equally between the trimester seasons in the South Atlantic and the Gulf of Mexico, and according to historical landings of 4, 88, and 8 percent for LCS, and 1, 9, and 90 percent for SCS in the first, second, and third trimester seasons, respectively, in the North Atlantic. The quotas were divided in this manner because sharks are available throughout much of the year in the Gulf of Mexico and South Atlantic regions, but primarily during the summer months in the North Atlantic region. Dividing the quotas equally among the three trimester seasons in the South Atlantic also result in a greater proportion of the quota being made available during August and September when the mid-Atlantic shark closure is no longer in effect. Consistent with 50 CFR 635.27(b)(1)(iii) and (vi), any over- or underharvest in a given region from the 2006 first trimester season will be carried over to the 2007 first trimester season in that region. First Trimester 2006 Landings Shark landings data for the first trimester of 2006 are provided in Table 1. As a result of the over- and underharvests that occurred in the first trimester season of 2006, NMFS analyzed alternatives to adjust the 2007 first trimester seasons and quotas for the LCS fishery. Quota Adjustments in the LCS Fishery The Agency conducted an Environmental Assessment
(EA)to analyze five alternatives for adjusting regional trimester LCS quotas and other management measures based on the over- and underharvests that occurred in the LCS fisheries in the South Atlantic and Gulf of Mexico regions, respectively, during the 2006 first trimester season. These measures are necessary to ensure that over- and underharvests from 2006 are accounted for and any impacts are analyzed. The base quotas established in Amendment 1 to the FMP for Atlantic Tunas, Swordfish, and Sharks and maintained in the Consolidated HMS FMP would not be affected by this rulemaking. Rather, the base quotas would be changed via an amendment to the FMP. These measures are necessary to ensure that over- and underharvests from 2006 are accounted for and any impacts are analyzed. The Agency is preparing, in a separate action, an amendment to the 2006 Consolidated HMS FMP to implement management measures that address the results of recent stock assessments, including the need for rebuilding plans and other modifications to the management program. Therefore, the Agency is not proposing any modifications to fishing seasons or quotas beyond the first trimester of 2007, at this time. The current regulations (status quo, alternative 1) state that NMFS will adjust the next year's fishing season
(2007)and quotas for LCS to reflect actual landings during the previous fishing season
(2006)in any particular region. Due to the excessive landings (230 percent of quota) of LCS reported in the South Atlantic region during the first trimester of 2006, the status quo alternative would not allow for any available quota in that region for LCS in the first trimester of 2007. This alternative would not modify the regional quotas or the mid-Atlantic shark closed area. Quotas and season lengths are provided in Table 1. The current regulations at 50 CFR 635.27(b)(1)(vi)(A) and (b)(2) allow for the transfer of up to 10 percent of a region's annual quota between two regions that have a corresponding under- and overharvest. Thus, NMFS also considered alternative 2, which would transfer up to 10 percent of the Gulf of Mexico region's annual quota to the South Atlantic region. This amount of quota would not be sufficient to account for the overharvest experienced by the South Atlantic region during the first trimester of 2006. The preferred alternative (alternative 3) would close the South Atlantic region to LCS fishing during the first trimester of 2007 and open the mid-Atlantic shark closed area in July 2007, subject to availability of quota for the second trimester of 2007. This alternative would result in a closure of the South Atlantic region for approximately six months (January-June 2007). Negative ecological impacts of re-opening the closed area are not expected to be significant because the re-opening would be allowed for only one month during one year. Unless action were taken to open the closure in the upcoming amendment to the HMS FMP, the area would be closed from January 1 to July 31, in 2008 and subsequent years. Economic and social impacts of re-opening the mid-Atlantic shark closed area would likely be positive relative to the status quo as fishermen in this area would have additional fishing opportunities during the month of July. Alternative 4 would open the mid-Atlantic shark closed area from January 1, 2007, through July 31, 2007. The opportunity to land LCS in this area during this time period would be contingent on the availability of quota for the first and second trimesters of 2007. This alternative was not selected because LCS quota would not likely be available for the first trimester of 2007, therefore, the closed area would not be opened until the second trimester (July 2007), similar to the preferred alternative. Furthermore, if quota were made available by combining this alternative with alternative 5, negative ecological impacts may be more extensive because the overharvest that occurred in 2006 would not be addressed. A permanent removal of the closure was not analyzed because such an action would require an FMP amendment to ensure consistency with the current rebuilding plan for sandbar sharks. An upcoming FMP amendment will implement measures to address the 2006 stock assessments for the LCS complex and dusky, sandbar, and blacktip sharks and will also review the mid-Atlantic shark closed area, among other measures, in light of more recent information. Lastly, alternative 5 would transfer the entire underharvest from the Gulf of Mexico region (119.7 mt dw) to the South Atlantic region. Once overharvests from 2006 are addressed, this alternative would provide a quota of 74.3 mt dw, resulting in a three-week fishing season for the South Atlantic region during the first trimester of 2007. A season of three weeks would be estimated to harvest 85 percent of the quota, including 33 percent that is harvested after the seasonal closure. Keeping the season open for four weeks would result in a 2 percent overharvest during the first trimester. Transferring this quota to the South Atlantic region results in 176.1 mt dw of LCS quota and a proposed seasonal closure of April 15, 2007, for the Gulf of Mexico region. Keeping the season open until April 30, 2007, would result in a 9 percent overharvest, including 0.85 percent being harvested after the seasonal closure. The North Atlantic region would have the same fishing seasons and quotas as the preferred alternative. Combining alternative 5, which would transfer the Gulf of Mexico region's underharvest to the South Atlantic region with alternative 4, which would open the mid Atlantic shark fishery closure in January 2007, would result in negative ecological impacts and positive social and economic benefits. The preferred alternative (alternative 3) was selected to account for the overharvest experienced by the South Atlantic region during the first trimester of 2006, while providing participants in this region with a one-time additional fishing opportunity in the month of July 2007. The ability to fish during the month of July 2007, depending on available quota, should not result in significant negative ecological impacts due to the limited nature of the opening (one month in one year). In addition, this alternative may offset some of the negative economic impacts of not being able to target LCS for the first six months of 2007 as a result of the first trimester closure. Furthermore, this opening may address perceived inequity between fishery participants in the vicinity of the mid-Atlantic shark closed area with those in other portions of the South Atlantic region. Proposed Quotas for First Trimester 2007 Pursuant to Amendment 1 to the FMP for Atlantic Tunas, Swordfish, and Sharks, and the Final Consolidated HMS FMP, the 2007 annual base landings quotas are 1,017 mt dw (2,242,078 lb dw) for LCS and 454 mt dw (1,000,888.4 lb dw) for SCS. The 2007 quota levels for pelagic, blue, and porbeagle sharks are 488 mt dw (1,075,844.8 lb dw), 273 mt dw (601,855.8 lb dw), and 92 mt dw (202,823.2 lb dw), respectively. This proposed rule does not propose any changes to these overall base landings quotas. Table 1 describes the proposed quotas for LCS, SCS, and pelagic sharks for the various regions (if applicable) for the first trimester of 2007 adjusted for over- and underharvests that occurred during the first trimester of 2006. Existing regulations do not allow underharvests of pelagic sharks to be carried forward to the next fishing management period. As of August 2006, approximately 20.3 mt dw had been reported landed in the 2006 first trimester fishing season in total for pelagic, blue, and porbeagle sharks combined. Thus, the pelagic shark quota does not need to be reduced consistent with the current regulations 50 CFR 635.27(b)(1)(iv). The 2007 first trimester season quotas for pelagic, blue, and porbeagle sharks are proposed to be 162.7 mt dw (358,688 lb dw), 91 mt dw (200,619 lb dw), and 30.7 mt dw (67,681 lb dw), respectively. Proposed Fishing Season Notification and Quotas for the First Trimester Season 2007 The first trimester fishing season of the 2007 fishing year for SCS, pelagic sharks, blue sharks, and porbeagle sharks in the northwestern Atlantic Ocean, including the Gulf of Mexico and the Caribbean Sea, is proposed to open on January 1, 2007 (Table 1). When quotas are projected to be reached for the SCS, pelagic, blue, or porbeagle sharks, the Assistant Administrator
(AA)will file notification of closures at the Office of the Federal Register at least 14 days before the effective date, consistent with 50 CFR 635.28(b)(2). Pursuant to 50 CFR 635.5(b)(1), shark dealers must report any sharks received twice a month. More specifically, sharks received between the first and 15th of every month must be reported to NMFS by the 25th of that same month and those received between the 16th and the end of the month must be reported to NMFS by the 10th of the following month. Thus, in order to provide consistency and predictability in managing the fishery, NMFS proposes to close the Federal LCS fishery on either the 15th or the end of any given month. Proposed Opening and Closing Dates and Quotas Proposed opening and closing dates for the 2007 first trimester season, by region and species group, are provided in Table 1. Table 1. Proposed Seasons and Quotas for LCS, SCS, and Pelagic Sharks for the First Trimester of 2007. All quotas and landings are dressed weight, in metric tons, unless specified otherwise. Species Group (Annual Quota) Region (Allocation) 2006 1 st Tri. Quota 2006 1 st Tri. Landings 2007 1 st Tri. Quota +/− Under/Over Harvest 2007 Proposed Quota Proposed Season Large Coastal Sharks (1,017) Gulf of Mexico (52 %) 176.1 103.1 176.1 +119.7 295.8 (692,157 lb dw) Jan. 1 - April 30, 2007 South Atlantic (41 %) 141.3 326.1 137.6 −184.3 −46.7 (−102,955 lb dw) Closed North Atlantic (7 %) 5.3 0.3 2.8 +5.0 7.8 (17,196 lb dw) Jan. 1 - April 30, 2007 Small Coastal Sharks
(454)Gulf of Mexico (10 %) 14.8 5.0 15.1 +9.8 24.9 (54,894 lb dw) Jan. 1, 2007 - To be determined South Atlantic (87 %) 284.6 42.1 131.5 +242.5 374.0 (824,520 lb dw) North Atlantic (3 %) 18.7 0.1 0.1 +18.6 18.7 (41,226 lb dw) Blue Sharks
(273)No regional quotas 91.0 20.3 91.0 Not applicable 91.0 (200,618 lb dw) Jan. 1, 2007 - To be determined Porbeagle sharks
(92)30.7 30.7 30.7 (67,681 lb dw) Pelagic Sharks other than Porbeagle or blue
(488)162.7 162.7 162.7 (358,688 lb dw) Request for Comments Comments on this proposed rule may be submitted at public hearings, via email, mail, or fax. NMFS will hold three public hearings to receive comments from fishery participants and other members of the public regarding these proposed alternatives. These hearings will be physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Michael Clark at
(301)713-2347 at least 5 days prior to the hearing date. For individuals unable to attend a hearing, NMFS also solicits written comments on this proposed rule (see DATES and ADDRESSES ). Classification NMFS has preliminarily determined that this action is consistent with section 304(b)(1) of the Magnuson-Stevens Fishery Conservation and Management Act, including the National Standards, and other applicable law. An EA has been prepared that describes the impact on the human environment that would result from implementation of alternative management measures that may adjust LCS quotas in the first trimester of 2007 based on over- and underharvests in the South Atlantic and Gulf of Mexico regions, respectively. Based on the EA, Regulatory Impact Review (RIR), and Initial Regulatory Flexibility Analysis
(IRFA)under the Regulatory Flexibility Act, and review of the National Environmental Policy Act
(NEPA)criteria for significant effects (40 CFR Part 1508.27) and NMFS criteria for significance evaluated above (NAO 216-6 Section 6.02), no significant effect on the quality of the human environment is anticipated from this action. This proposed rule has been determined to be not significant for purposes of Executive Order 12866. In compliance with Section 603 of the Regulatory Flexibility Act, an Initial Regulatory Flexibility Analysis was prepared for this rule. The IRFA analyzes the anticipated economic impacts of the preferred actions and any significant alternatives to the proposed rule that could minimize economic impacts on small entities. A summary of the IRFA is below. The full IRFA and analysis of economic and ecological impacts, are available from NMFS (see ADDRESSES ). In compliance with Section 603 (b)(1) and
(2)of the Regulatory Flexibility Act, the purpose of this proposed rulemaking is, consistent with the Magnuson-Stevens Act, to adjust the LCS and SCS regional and trimester quotas and propose season lengths for LCS, SCS, and pelagic sharks for the first trimester of 2007 based on under- and overharvests that occurred during the first trimester of 2006. This rule does not change the overall base quotas. Section 603 (b)(3) requires Agencies to provide an estimate of the number of small entities to which the rule would apply. This rule could directly affect commercial shark fishermen and dealers on the Atlantic Ocean in the United States. There are approximately 552 (240 directed and 312 incidental) shark permit holders and 336 commercial shark dealers that would be affected by this proposed rule. All of these permit holders and dealers are considered small entities according to the Small Business Administration's standard for defining a small entity. Other small entities involved in HMS fisheries such as processors, bait houses, and gear manufacturers might be indirectly affected by the proposed regulations. This proposed rule does not contain any new reporting, recordkeeping, or other compliance requirements (5 U.S.C. 603 (b)(4)). Similarly, this proposed rule would not conflict, duplicate, or overlap with other relevant Federal rules (5 U.S.C. 603(b)(5)). One of the requirements of an IRFA, under Section 603 of the Regulatory Flexibility Act, is to describe any alternatives to the proposed rule that accomplish the stated objectives and that minimize any significant economic impacts (5 U.S.C. 603 (c)). Additionally, the Regulatory Flexibility Act (5 U.S.C. 603 (c)(1)-(4)) lists four categories for alternatives that must be considered. These categories are:
(1)establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities;
(2)clarification, consolidation, or simplification of compliance and reporting requirements under the rule for such small entities;
(3)use of performance rather than design standards; and
(4)exemptions from coverage for small entities. In order to meet the objectives of this proposed rule, consistent with Magunson-Stevens Act and the Endangered Species Act (ESA), NMFS cannot exempt small entities or change the reporting requirements only for small entities. Thus, there are no alternatives discussed that fall under the first and fourth categories described above. In addition, none of the alternatives considered would result in additional reporting or compliance requirements (category two above). NMFS does not know of any performance or design standards that would satisfy the aforementioned objectives of this rulemaking while, concurrently, complying with the Magnuson-Stevens Act. As described below, NMFS analyzed five different alternatives in this proposed rulemaking and provides justification for selection of the preferred alternative to achieve the desired objective. The alternatives included: status quo (alternative 1), transferring 10 percent of the Gulf of Mexico region annual quota to the South Atlantic (alternative 2), closing the South Atlantic region during the first trimester of 2007 and opening the mid Atlantic shark closed area in July 2007 (alternative 3), removing the mid-Atlantic shark closed area (alternative 4), and transferring the entire Gulf of Mexico region underharvest to the South Atlantic region (alternative 5). Closing the South Atlantic region during the first trimester and opening the mid Atlantic shark closed area in July is the preferred alternative (alternative 3). Alternative 1 is considered the status quo alternative since it would maintain existing procedures for addressing regional trimester over- and underharvests when establishing the regional quotas and seasons for the first trimester of 2007 and it would also maintain the existing mid-Atlantic shark closure. The Gulf of Mexico and North Atlantic regions would maintain similar economic levels as previous years because those regions are proposed to be open, with ample quota, throughout the entire first trimester 2007. This alternative is not preferred, as it would result in negative economic impacts for the South Atlantic region, compared to the preferred alternative. By itself, the status quo alternative does not create any new economic burdens on the shark commercial industry. Regardless, the unexpected magnitude of the 2006 first trimester overharvest would result in no commercial fishing for LCS in the entire South Atlantic region from January 1 to July 31, 2007, and there would be no fishing with bottom longline
(BLL)gear permitted in the Mid-Atlantic shark closure until August 1, 2007. If not for the overharvest in 2006, the first trimester quota available would have been 137.6 mt of LCS. Using a median ex-vessel price of $0.51 for LCS and $12.61 for shark fin reported HMS Dealer reports from 2002 to 2005 for the South Atlantic and adjusted for inflation, the value of this harvest would have been approximately $146,976 for LCS fresh (95 percent of the quota weight) and $191,266 for shark fins (based on the 5 percent shark fin to carcass regulation). Therefore, the 2006 overharvest is estimated to have an estimated direct revenue impact on South Atlantic commercial shark fishing activity of approximately $338,242. There will also be continued economic hardship compared to the preferred alternative for fishing operations using BLL gear that are dependant on LCS in the vicinity of the Mid-Atlantic shark closure since they would not be permitted to fish until August 1, 2007. However, it should be noted that fishermen received revenue sooner under the 2006 first trimester overharvest than they normally would have received. However, a closure during the first trimester of 2007 would result in disrupted revenue flows and negative economic impacts. Using the median ex-vessel prices for the first trimester of 2006 of $0.45 and $14.00 for LCS flesh and shark fins, respectively, the estimated revenue for the first trimester in 2006 from the 184.3 mt in overharvest was $458,116. Maintaining the Mid-Atlantic shark closed area would result in no fishing with BLL gear permitted in the mid-Atlantic shark closure until August 1, 2007. This could impact some of the vessels dependant on fishing with BLL gear in this region. Alternative 2 would adjust the South Atlantic regional LCS quota for the first trimester by transferring up to 10 percent of the 2006 first trimester quota from the Gulf of Mexico. This would likely result in the same economic effects as the status quo alternative, since the transferred amount is not likely to be sufficient to allow for an LCS season in the first trimester in the South Atlantic region while still allowing for a full season in the Gulf of Mexico region. Before implementing this alternative, it would be necessary to review the annual regional landings for 2006 for both regions before determining whether the South Atlantic and Gulf of Mexico regions have corresponding annual over- and underharvests, respectively. This alternative is not preferred, as it would result in negative economic impacts for the South Atlantic region, similar to alternative 1 (status quo), compared to the preferred alternative. Alternative 3, the preferred alternative, would close the entire South Atlantic region for LCS during the first trimester of 2007 and open the entire area including the mid-Atlantic shark closed area region in July 2007, pending availability of quota. This alternative could minimize the economic costs associated with the South Atlantic overharvest. As described above for Alternative 1, the 2006 overharvest is estimated to have an estimated direct revenue impact on South Atlantic commercial shark fishing activity of approximately $338,242. In 2005, 46 vessels reported landings in the South Atlantic region, indicating that the LCS closure could result in a loss of revenue of approximately $7,353/vessel. However, this alternative might provide an additional month of fishing opportunities for vessels that may not be able to participate in the South Atlantic fishery during the first six months of 2007. Compared to pre-closure landings (2002-2004), landings in 2005 of LCS decreased by 13.9 mt dw which may have been a result of the closed area. This additional month of access to the mid-Atlantic shark closed area region during the month of July is estimated to potentially result in an additional $34,188 in gross shark revenues based on the difference in landings that may occur as a result of reopening the mid-Atlantic shark closed area. Alternative 4 would open the mid-Atlantic shark closed area on January 1, 2007, through July 31, 2007, dependant on available quota for LCS during the first and second trimester seasons of 2007. Given the preliminary landings data as of August 24, 2006, it is likely quota will not be available. Therefore, it is likely that this alternative would result in economic impacts identical to Alternative 3. The impacts of this alternative would be similar to the preferred alternative or the status quo alternative as lack of available quota would prevent fishing in the South Atlantic region during the first trimester. This alternative is not preferred because the preferred alternative achieves similar objectives, yet ensures that the ecological benefits of maintaining the mid-Atlantic shark closed area are maintained through June of 2007. Furthermore, if fishing were allowed in the first trimester of 2007 by transferring quota from the Gulf of Mexico region (alternative 5) this alternative would result in negative ecological impacts because it does not account for the overharvest that occurred in 2006. Alternative 5 would distribute a portion of the LCS underharvest from the Gulf of Mexico's landings from the first trimester of 2006 to the South Atlantic first trimester of 2007 thus providing a first trimester season for 2007 in the South Atlantic. Transferring all of the Gulf of Mexico region's under harvest to the South Atlantic could provide for 74.3 mt dw of quota that would provide for an approximately 3-week long season. This 3-week season would generate approximately $182,641 (95 percent at $0.51/lb dw LCS and 5 percent at $12.61/lb dw shark fins) in revenue in the South Atlantic region. However, the estimated revenue generated during the 3-week season would still be about $155,601 less than the potential revenue associated with the annual quota allocation. This alternative was not selected as it would not account for the overharvest experienced in the South Atlantic region during the first trimester of 2006, resulting in additional fishing mortality in 2007 and negative ecological impacts as a consequence. Furthermore, the potential exists for the South Atlantic region to exceed its 2007 first trimester quota, exacerbating future potential economic and ecological impacts as a result. Overall, underharvests from 2006 that would be transferred to the first trimester season quota for 2007 under this alternative may result in economic benefits for the Gulf of Mexico that may potentially offset some of the negative economic impacts to the South Atlantic region. Increases in possible revenue as a result of transferring the underharvests are only potential amounts that may or may not be realized. If revenues are not realized then there would be no economic impact because the fishermen did not receive any benefit from the transfer of underharvests. If revenues are realized, it may result in a positive economic impacts. These proposed regulations are not expected to increase endangered species or marine mammal interaction rates. A Biological Opinion
(BiOp)issued October 29, 2003, concluded that the continued operation of the Atlantic shark fisheries was not likely to jeopardize the continued existence of any listed species under NMFS purview. An analysis of the anticipated incidental takes of sea turtles (primarily loggerhead and leatherback sea turtles) and smalltooth sawfish resulted in a “non-jeopardy” determination in the BiOp. This proposed rule would adjust LCS quotas for the first trimester of 2007 based on over- and underharvests that occurred in the first trimester of 2006. Furthermore, this proposed rule would not alter fishing practices or fishing effort significantly and therefore should not have any further impacts on endangered species or marine mammals beyond those considered in the October 29, 2003, BiOp for Atlantic shark fisheries. Between 1994-2004, there have been 5 loggerhead sea turtles observed caught on BLL gear in the mid-Atlantic shark closed area, two of which were released alive. Only one of these interactions occurred during the moth of July (1998). Re-opening the mid-Atlantic shark closure in July would likely have slightly negative ecological impacts because the likelihood of interactions with protected resources and other bycatch would be increased due to the displacement of fishing effort to an area that had been previously closed. The modification to the mid-Atlantic shark closure area is not expected to significantly impact interactions with protected resources, because the South Atlantic region would be closed to targeted LCS fishing from January through June of 2007. The preferred alternative of opening the mid-Atlantic shark closed area in July 2007, dependent upon available quota, would likely increase fishing mortality of juvenile sandbar sharks. This area is considered an Habitat Area of Particular Concern
(HAPC)for sandbar sharks. However, the impacts on Essential Fish Habitat (EFH), and specifically, the HAPC are considered to be negligible because of the short duration of the opening. A status quo alternative was considered that would have reduced ecological impacts on the HAPC and EFH in general, however, that alternative would result in more extensive negative social and economic impacts because the South Atlantic region will be closed for the first seven months of 2007, rather than six months as preferred. List of Subjects in 50 CFR Part 635 Fisheries, Fishing, Fishing vessels, Foreign relations, Imports, Penalties, Reporting and recordkeeping requirements, Treaties. Dated: September 28, 2006. William T. Hogarth, Assistant Administrator for Fisheries, National Marine Fisheries Service. For reasons set out in the preamble, 50 CFR part 635 is proposed to be amended as follows: PART 635—ATLANTIC HIGHLY MIGRATORY SPECIES 1. The authority citation for part 635 continues to read as follows: Authority: 16 U.S.C. *et seq.* ; 16 U.S.C. 1801 *et seq.* 2. In § 635.21, paragraph (d)(1) is revised to read as follows: § 635.21 Gear operation and deployment restrictions.
(d)* * *
(1)If bottom longline gear is on board a vessel issued a permit under this part, persons on board that vessel may not fish or deploy any type of fishing gear in the mid-Atlantic shark closed area from January 1 through July 31 each calendar year, except that in 2007 the mid-Atlantic shark closed area will be closed from January 1 through June 30 and may open in July, contingent upon available quota. [FR Doc. E6-16408 Filed 10-4-06; 8:45 am] BILLING CODE 3510-22-S 71 193 Thursday, October 5, 2006 Notices DEPARTMENT OF AGRICULTURE Animal and Plant Health Inspection Service [Docket No. APHIS-2006-0087] General Conference Committee of the National Poultry Improvement Plan; Solicitation for Membership AGENCY: Animal and Plant Health Inspection Service, USDA. ACTION: Notice of solicitation for membership. SUMMARY: We are giving notice that the Secretary of Agriculture is soliciting nominations for the election of regional membership and a member-at-large for the General Conference Committee of the National Poultry Improvement Plan. DATES: Consideration will be given to nominations received on or before November 20, 2006. ADDRESSES: Nominations should be addressed to Mr. Andrew R. Rhorer, Senior Coordinator, National Poultry Improvement Plan, VS, APHIS, 1498 Klondike Road, Suite 101, Conyers, GA 30094-5104. FOR FURTHER INFORMATION CONTACT: Mr. Andrew R. Rhorer at the above address or telephone
(770)922-3496. SUPPLEMENTARY INFORMATION: The General Conference Committee (the Committee) of the National Poultry Improvement Plan
(NPIP)is the Secretary's Advisory Committee on poultry health. The Committee serves as a forum for the study of problems relating to poultry health and, as necessary, makes specific recommendations to the Secretary concerning ways the U.S. Department of Agriculture may assist the industry in addressing these problems. The Committee assists the Department in planning, organizing, and conducting the Biennial Conference of the NPIP. The Committee recommends whether new proposals should be considered by the delegates to the Biennial Conference and serves as a direct liaison between the NPIP and the United States Animal Health Association. Terms will expire for current regional members of the Committee and a member-at-large in September 2006. We are soliciting nominations from interested organizations and individuals to replace members on the Committee for the East North Central Region (Illinois, Indiana, Michigan, Ohio, and Wisconsin), the North Atlantic Region (Connecticut, Maine, Massachusetts, New Hampshire, New Jersey, New York, Pennsylvania, Rhode Island, and Vermont), the South Atlantic Region (Delaware, Florida, Georgia, Maryland, North Carolina, South Carolina, Virginia, and West Virginia), and the Western Region (Alaska, Arizona, California, Colorado, Hawaii, Idaho, Montana, New Mexico, Nevada, Oregon, Utah, Washington, and Wyoming), as well as a member-at-large. There must be at least two nominees for each position. To ensure the recommendations of the Committee have taken into account the needs of the diverse groups served by the Department, membership should include, to the extent practicable, individuals with demonstrated ability to represent underrepresented groups (minorities, women, and persons with disabilities). At least one nominee from each of the four regions must be from such an underrepresented group. The voting will be by secret ballot of official delegates from the respective region, and the results will be recorded. The member-at-large will represent all of the regions. Done in Washington, DC, this 29th day of September 2006. Kevin Shea, Acting Administrator, Animal and Plant Health Inspection Service. [FR Doc. E6-16458 Filed 10-4-06; 8:45 am] BILLING CODE 3410-34-P DEPARTMENT OF AGRICULTURE Animal and Plant Health Inspection Service [Docket No. APHIS-2006-0097] General Conference Committee of the National Poultry Improvement Plan; Reestablishment AGENCY: Animal and Plant Health Inspection Service, USDA. ACTION: Notice of reestablishment. SUMMARY: We are giving notice that the Secretary of Agriculture has reestablished the General Conference Committee of the National Poultry Improvement Plan (Committee) for a 2-year period. The Secretary of Agriculture has determined that the Committee is necessary and in the public interest. FOR FURTHER INFORMATION CONTACT: Mr. Andrew Rhorer, Senior Coordinator, National Poultry Improvement Plan, VS, APHIS, USDA, Suite 101, 1498 Klondike Road, Conyers, GA 30094;
(770)922-3496. SUPPLEMENTARY INFORMATION: The purpose of the General Conference Committee of the National Poultry Improvement Plan (Committee) is to maintain and ensure industry involvement in Federal administration of matters pertaining to poultry health. The Committee Chairperson and the Vice Chairperson shall be elected by the Committee from among its members. There are seven members on the Committee. This Committee differs somewhat from other advisory committees in the selection process and composition of its membership. The poultry industry elects the members of the Committee. The members represent six geographic areas with one member-at-large. The membership is not subject to the U.S. Department of Agriculture's review. A formal request for nominations for membership is published in the **Federal Register** . Done in Washington, DC, this 29th day of September 2006. Boyd K. Rutherford, Assistant Secretary for Administration. [FR Doc. E6-16463 Filed 10-4-06; 8:45 am] BILLING CODE 3410-34-P DEPARTMENT OF COMMERCE Economic Development Administration Notice of Petitions by Firms for Determination of Eligibility To Apply for Trade Adjustment Assistance AGENCY: Economic Development Administration, Department of Commerce. ACTION: Notice and opportunity for public comment. Pursuant to Section 251 of the Trade Act of 1974 (19 U.S.C. 2341 *et seq.* ), the Economic Development Administration
(EDA)has received petitions for certification of eligibility to apply for Trade Adjustment Assistance from the firms listed below. EDA has initiated separate investigations to determine whether increased imports into the United States of articles like or directly competitive with those produced by each firm contributed importantly to the total or partial separation of the firm's workers, or threat thereof, and to a decrease in sales or production of each petitioning firm. List of Petitions Received by EDA for Certification of Eligibility To Apply for Trade Adjustment Assistance for the Period September 9, 2006 Through September 29, 2006 Firm Address Date petition accepted Product Boehringer Laboratories, Inc. 500 E. Washington Street, Norristown, PA 19401 9/6/06 Medical instruments, surgical appliances and supplies. BMCO Architectural Millwork, Ltd. 2727 Coombsville, Dallas, TX 75212 9/6/06 Custom millwork, including kitchen cabinets, doors, moldings and windows. Alpha Electronics International, Inc. 767 Edgewood Avenue, Wood Dale, IL 60191 9/6/06 Plastic printed circuit board design, fabrication and complete turn-key manufacturing. Austin-Westran, LLC 602 East Blackhawk Drive, Byron, IL 61010 9/18/06 Metal trailer support legs for original equipment manufacturers of semi trailers, for transportation fleets and for service parts markets. FXP Marketing International, Inc. dba Novelcrafts Manufacturing Company, Inc 5309 Rogue River Highway, Rogue River, OR 97537 9/18/06 Wire display racks. Mrs. Wheat's Fabulous Foods, Inc. 4532 Marais Street, New Orleans, LA 70117 9/18/06 Meat pies. R&D Tool & Engineering Co. 1009 Browning Street, Lee's Summit, MO 64084 9/18/06 Precision molds for packaging industry. American Ink Jet Corporation 13 Alexander Road, Billerica, MA 01821 9/18/06 Inks for the inkjet printer industry. Judy Havelka Enterprises, Inc. 4913 Airport Freeway, Fort Worth, TX 76117 9/28/06 Botanicals, perfume oils and candles. GSC Chipotle Texas Ltd. 101 Port of Entry Road, P.O. Box 158, Ft. Hancock, TX 79839 9/28/06 Anaheim peppers. Westerbeke Corporation 150 John Hancock Road, Taunton, MA 02780 9/28/06 Marine engines and air-conditioning products. Pastry House, Inc.
(The)94 Kean Street, West Babylon, NY 11704 9/28/06 Baked goods. Reynolds & Reynolds Electronics, Inc. 521 E. Fourth Street, Bethlehem, PA 18015 9/28/06 Electric emergency energy equipment for elevators. Any party having a substantial interest in these proceedings may request a public hearing on the matter. A written request for a hearing must be submitted to the Office of Chief Counsel, Room 7005, Economic Development Administration, U.S. Department of Commerce, Washington, DC 20230, no later than ten
(10)calendar days following publication of this notice. Please follow the procedures set forth in Section 315.9 of EDA's final rule (71 FR 56704) for procedures for requesting a public hearing. The Catalog of Federal Domestic Assistance official program number and title of the program under which these petitions are submitted is 11.313, Trade Adjustment Assistance. Dated: September 29, 2006. Barry Bird, Chief Counsel. [FR Doc. E6-16451 Filed 10-4-06; 8:45 am] BILLING CODE 3510-24-P DEPARTMENT OF COMMERCE International Trade Administration Export Trade Certificate of Review ACTION: Notice of Issuance of an Amended Export Trade Certificate of Review, Application No. 84-17A12. SUMMARY: On September 28, 2006, The U.S. Department of Commerce issued an amended Export Trade Certificate of Review to Northwest Fruit Exporters (“NFE”). FOR FURTHER INFORMATION CONTACT: Jeffrey C. Anspacher, Director, Export Trading Company Affairs, International Trade Administration,
(202)482-5131 (this is not a toll-free number) or E-mail at *oetca@ita.doc.gov.* SUPPLEMENTARY INFORMATION: Title III of the Export Trading Company Act of 1982 (15 U.S.C. Sections 4001-21) authorizes the Secretary of Commerce to issue Export Trade Certificates of Review. The regulations implementing Title III are found at 15 CFR part 325 (2004). Export Trading Company Affairs (“ETCA”) is issuing this notice pursuant to 15 CFR 325.6(b), which requires the U.S. Department of Commerce to publish a summary of the certification in the **Federal Register** . Under Section 305(a) of the Act and 15 CFR 325.11(a), any person aggrieved by the Secretary's determination may, within 30 days of the date of this notice, bring an action in any appropriate district court of the United States to set aside the determination on the ground that the determination is erroneous. *Description of Amended Certificate:* The original NFE Certificate (No. 84-00012) was issued on June 11, 1984 (49 FR 24581, June 14, 1984), and last amended on December 2, 2005 (70 FR 73731, December 13, 2005). NFE's Export Trade Certificate of Review has been amended to: 1. Add each of the following companies as a new “Member” of the Certificate within the meaning of section 325.2(1) of the Regulations (15 C.F.R. 325.2(1)): Fox Orchards, Mattawa, Washington; Prentice Packing & Storage, Inc., Yakima, Washington; and Yakima Fresh, Yakima, Washington; 2. Delete the following companies as “Members” of the Certificate: Bardin Farms Corp., Monitor, Washington; Bertha's Marketing Inc., Wenatchee, Washington; Bolinger & Sons, Wenatchee, Washington; Cervantes Packing and Storage, L.L.C., Sunnyside, Washington; SST Growers and Packers L.L.C., Granger, Washington; and Yakima-Roche Fruit Sales L.L.C., Yakima, Washington; and 3. Change the listing of the following “Member”: Sage Marketing L.L.C., Yakima Washington to the new listing Sage Fruit Company, L.L.C., Yakima, Washington. The effective date of the amended certificate is June 30, 2006. A copy of the amended certificate will be kept in the International Trade Administration's Freedom of Information Records Inspection Facility, Room 4100, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230. Dated: September 28, 2006. Jeffrey Anspacher, Director, Export Trading Company Affairs. [FR Doc. E6-16410 Filed 10-4-06; 8:45 am] BILLING CODE 3510-DR-P DEPARTMENT OF COMMERCE International Trade Administration [Docket No. 060920244-6244-01] Solicitation of Applications for United States Destination Web Site Research, Development, Implementation and Marketing AGENCY: International Trade Administration (ITA), Department of Commerce (DOC). ACTION: Notice and request for applications. SUMMARY: The International Trade Administration's
(ITA)Office of Travel and Tourism Industries
(OTTI)announces the availability of funds for a cooperative agreement for the purpose of providing content and information, through a newly designed and implemented Web site, or by enhancing an existing Web site, on the United States as a premier destination to international inbound travelers from five key markets: United Kingdom, Japan, Canada, Mexico, and Germany. It is envisioned that the award recipient will use funding to conduct market research for each country on the site's international target audience. It is envisioned that this Web site will be the benchmark U.S. travel and tourism information portal for international travelers to the United States. The Web site will encompass information on all components of the U.S. travel and tourism industry, which include, but is not limited to, destinations, attractions, natural resources, dining and lodging facilities, and transportation companies. ITA will make one award, in the form of a cooperative agreement, in the amount of approximately $3,600,000. DATES: Applications must be received by 4 p.m. eastern Daylight Saving Time on November 14, 2006. Applications received after the closing date and time will not be considered. ADDRESSES: Proposals must be submitted to International Trade Administration, Office of Travel and Tourism Industries, U.S. Department of Commerce, HCHB 1003, Washington, DC 20230 attn: Julie Heizer or via e-mail to: *julie.heizer@mail.doc.gov.* The full funding opportunity announcement and the application kit for this request for applications are available at *http://grants.gov,* or by contacting Brian Beall on 202-482-5634 or Julie Heizer on 202-482-4904. FOR FURTHER INFORMATION CONTACT: Interested parties who are unable to access information via Internet or who have questions may contact Mr. Brian Beall by mail (see Addresses ), by phone at 202-482-5634, by fax at 202-482-4279 or via e-mail at *Brian.Beall@mail.doc.gov,* or Ms. Julie Heizer by mail (see ADDRESSES ), by phone at 202-482-4904, by fax at 202-482-2997, or via e-mail at *julie.heizer@mail.doc.gov.* SUPPLEMENTARY INFORMATION: *Electronic Access:* The full funding opportunity announcement is available at *http://grants.gov* or by contacting Brian Beall, see FOR FURTHER INFORMATION CONTACT . *Funding Availability:* In fiscal year 2007, approximately $3,600,000 will be available through this announcement for a two-year award period. ITA envisions one award. *Statutory Authority:* Pursuant to Section 210 of Public Law 108-7, and Public Law 109-108. *Program Information:* The International Trade Administration
(ITA)is soliciting applications from organizations to design and implement a consumer Web site (or enhancement to an existing site), which is based on primary and secondary consumer research, that provides content and information on the United States as a premier destination to international inbound travelers. The overall objective of the Web site is to represent the United States as a travel and tourism destination by increasing awareness and positive perception from five identified markets. The five markets represent the largest originating countries for inbound international travelers to the United States and include the United Kingdom, Japan, Canada, Mexico, and Germany. It is envisioned that this Web site will be the benchmark U.S. travel and tourism information portal for international travelers to the United States. The Web site will encompass information on all components of the U.S. travel and tourism industry. This will include, but is not limited to, destinations, attractions, natural resources, dining and lodging facilities, and transportation companies. The Web site will provide accurate and timely information regarding the United States as a travel and tourism destination and deliver a coordinated message that communicates the diversity of the American travel product. It will reflect the brand value of the United States, as determined through consumer market research in the target markets, and benefit all regions of the country. Funding provided by the ITA cooperative agreement is intended to serve the four distinct functions of research, development, implementation, and marketing. Prior to the implementation of the Web site, the grantee will use funding to conduct in-depth market research for each country on the site's international target audience. This will provide insight into the Internet usage habits of the Web site's identified consumers. Through initial market research, the grantee will familiarize itself with consumer demographics and psychographics in the identified international target markets. Because the funding provided by the cooperative agreement is for a specified period of time only, each applicant must include a detailed plan to maintain and market the Web site once Federal monies are no longer available. Cooperative marketing partnerships are encouraged as one means by which to generate the resources to sustain the Web site into the future once the cooperative agreement period with the Department expires, as well as during the grant period. *Eligibility:* Eligible applicants for the program include all for-profit or non-profit, U.S. corporations, associations, organizations, and Native American Tribal Governments (Federally recognized) and state and local Governments. *Award Period:* The recipient will have two years from the date listed on the Financial Assistance Award form, CD-450 to expend all funds. *Type of Funding Instrument:* Cooperative Agreement. *Cost Share/Matching Requirements:* The amount of Federal funds awarded for this cooperative agreement will be approximately $3,600,000 to be disbursed over a two-year period. It is a requisite that the grantee match at least 25% of the awarded Federal funds. The total of the awarded Federal funds plus the amount of the grantee's match will be the project cost. The cost share must be provided by either the applicant or by a third party in the form of cash or in-kind contributions and they must be spent on eligible expenses and are required to be from eligible sources. Applicants must verify and demonstrate in their applications that matching funds are available during the time period of the agreement as the matching funds are required to complete the project. *Intergovernmental Review:* Applications under this program are not subject to Executive Order 12372, “Intergovernmental Review of Federal Programs.” *Evaluation and Selection Procedures:* After receiving the applications, ITA will screen each one to determine the applicant's eligibility to receive an award. After receiving all eligible applications, a review panel composed of at least three
(3)ITA and Industry Representative(s) will individually review the applications applying the Evaluation Criteria below, score them, and forward a ranking to the Deputy Assistant Secretary for Services (DAS). There will be no consensus advice provided by the evaluation panel. From the ranked applications forwarded by the selection panel, the DAS selects the application that will receive funding. In making her decision, the DAS will consider the review panel's evaluations and take into consideration the review panel's ranking. The DAS may deviate from the selection panel's ranked recommendation only based on the following factors:
(1)Funding Priorities (see below) and
(2)the availability of funds. *Evaluation Criteria:* ITA is interested in projects that demonstrate the possibility of both significant results during the award period and lasting benefits extending beyond the award period. All eligible and complete applications will be evaluated based on the following criteria and maximum point allowances. Failure to address any one of the following criteria by the application deadline will result in an application being determined incomplete and the application will not be considered. The total points available are 100. 1. *Quality of Work Plan (30%):* The evaluation of work plan quality will be based on whether the proposal demonstrates a sound plan that will meet the objectives in a timely and efficient manner. The evaluation will take into consideration how well the steps for executing the plan are defined, the soundness of the proposed steps, the likelihood that they will achieve the intended result, and the soundness and realism of the proposed milestones/timelines. Applicants that propose to enhance an existing website will be evaluated on the same criteria. Factors to be considered include:
(a)The soundness of the research methodology for all markets, to include: Primary and secondary consumer research that tests brand identity for the United States as a travel destination; cultural differences present in individual markets with respect to language and receipt of brand messages; and technical proficiencies and preferences.
(b)The Web site's development and implementation, to include: The overall concept for Web site: the applicant's team past experience in developing and launching international websites in multiple languages; scalability ( *i.e.* , the ability to maintain a Web site's availability, reliability, and performance as the amount of simultaneous Web traffic, or load, demands of the host server increases); expandability; approach for correcting faults; improving performance or adapting to changed environments; and content (to include approach for ensuring information is accurate and updated regularly).
(c)The proposed marketing approach for all markets, to include: Past performance and buying power of the identified media company(s) in all markets; the soundness of the approach; and the ability to leverage media buying dollars.
(d)The metrics proposed to evaluate performance, to include: Unique visitors; the part of site that is being visited; the number of linking sites; the identities of referring sites; the number and extent of joint promotions; and data provided by Internet consumer surveys to gauge user satisfaction with areas such as, but not limited to, usability, content, and functionality. All data provided should include performance analysis and insight, both of which would assist in making adjustments, if appropriate.
(e)The proposed timelines and milestones for the website's required research, development, design, implementation, marketing, and success measurement.
(f)The plan for securing and reflecting input from the U.S. Department of Commerce in the development of brand identify, Web site look and feel, policy regarding content and on-going content review and revisions. 2. *Management Plan, Capabilities and Experience, and Personnel Qualifications (40%):* The quality of the management plan, the qualifications of the proposed personnel, and the applicant's capabilities and past performance relevant to this project will be evaluated in terms of:
(a)The overall organizational capabilities and experience of the applicant and its identified partners.
(b)An assessment of the relevancy and adequacy of the number, qualifications, past experience and staffing mix, and proposed roles for staff that will be involved (note that resumes for proposed personnel will facilitate in the evaluation of the relevancy, competency and experience of proposed staff).
(c)The management control approach, progress measurements, reporting system, and the project plan that reflects milestones and deliverables needed to meet the objectives of the project.
(d)The ability to mobilize industry partners for content, offers, and future investment.
(e)The demonstration of prior experience managing international marketing campaigns that promote travel and tourism and previous experience with multi-language execution.
(f)An assessment of the applicants' previous performance/experience and success with similar programs, including an assessment of previous website design, development, and implementation.
(g)An assessment of the applicant's previous performance/experience with primary and secondary consumer market research. 3. *Budget and Sustainability (30%):* The factors of budget and sustainability include the reasonableness of the itemized budget for project activities, the amount of cost share/matching requirements that is available, the applicant's plan to maintain the Web site after the award period, and the probability that the project can be continued on a self-sustained basis after the completion of the cooperative agreement. The three criteria together constitute the application score. The total possible points are 100. *Funding Priorities:* Preference may be given to applications during the selection process which address the following: 1. Applicants with the ability to expand the positive affects of the Web site to industries that directly benefit from increased travel to the United States. These include, but are not limited to, retail, sports, and entertainment. 2. Knowledge and understanding of the U.S. and global travel and tourism industry and its direct and indirect sectors. 3. Applicants that provide more than 25 percent cost share/match. *The Department of Commerce Pre-Award Notification Requirements for Grants and Cooperative Agreements:* The Department of Commerce Pre-Award Notification for Grants and Cooperative Agreements contained in the **Federal Register** notice of December 30, 2004 (69 FR 78389) are applicable to this solicitation. *Paperwork Reduction Act:* This document contains collection-of-information requirements subject to the Paperwork Reduction Act (PRA). The use of Standard Forms 424, 424A, 424B, SF-LLL and CD 346 have been approved by the Office of Management and Budget
(OMB)under the respective control numbers 0348-0043, 0348-0044, 0348-0040, 0348-0046, and 0605-0001. Notwithstanding any other provision of law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the PRA unless that collection of information displays a currently valid OMB control number. *Executive Order 12866:* This notice has been determined to be not significant for purposes of Executive Order 12866. *Executive Order 13132 (Federalism):* It has been determined that this notice does not contain policies with Federalism implications as that term is defined in Executive Order 13132. *Administrative Procedure Act/Regulatory Flexibility Act:* Prior notice and an opportunity for public comments are not required by the Administrative Procedure Act or any other law for this notice concerning grants, benefits, and contracts (5 U.S.C. 553(a)(2)). Because notice and opportunity for comments are not required pursuant to 5 U.S.C. 553 or any other law, the analytical requirements for the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) are inapplicable. Therefore, a regulatory flexibility analysis has not been done. Dated: September 29, 2006. Helen N. Marano, Director, Office of Travel & Tourism Industries. [FR Doc. E6-16491 Filed 10-4-06; 8:45 am] BILLING CODE 3510-DR-P DEPARTMENT OF COMMERCE Minority Business Development Agency [Docket No. 000724217-6248-14] Solicitation of Applications for the Minority Business Enterprise Center (MBEC); (Formerly Minority Business Development Center (MBDC)) AGENCY: Minority Business Development Agency, Department of Commerce. ACTION: Notice; re-open competition solicitation. SUMMARY: The Minority Business Development Agency publishes this notice to re-open the competitive solicitation for the Minority Business Enterprise Center program for the Louisiana MBEC, covering the geographic service area of the State of Louisiana, and the Detroit MBEC, covering the geographic service area of the State of Michigan. DATES: The new deadline for the receipt of proposals is October 18, 2006 for both electronic and paper applications. ADDRESSES: The address for submitting Proposals electronically is: *http://www.grants.gov/.* (Electronic submission is encouraged). Paper submissions should be sent to: *If Mailed:* If the application is mailed/shipped overnight by the applicant or its representative, one
(1)signed original plus two copies of the application must be submitted. Completed application packages must be mailed to: Office of Business Development—MBEC Program, Office of Executive Secretariat, Herbert C. Hoover Building, Room 5063, Minority Business Development Agency, U.S. Department of Commerce, 14th and Constitution Avenue, NW., Washington, DC 20230 (Between Pennsylvania and Constitution Avenues). U.S. Department of Commerce delivery policies for Federal Express, UPS and DHL overnight services require the packages to be sent to the address above. *If Hand-Delivered:* U.S. Department of Commerce, Minority Business Development Agency, Office of Business Development—MBEC Program (Extension 1940), Herbert C. Hoover Building, Room 1874, Entrance No. 10, 15th Street, NW., Washington, DC (Between Pennsylvania and Constitution Avenues). U.S. Department of Commerce hand-delivery policies state that Federal Express, UPS and DHL overnight services submitted to the address above (Entrance No. 10) cannot be accepted. These policies should be taken into consideration when utilizing their services. MBDA will not accept applications that are submitted by the deadline, but are rejected due to Departmental hand-delivery policies. The applicant must adhere to these policies in order for his/her application to receive consideration for the award. FOR FURTHER INFORMATION CONTACT: For further information, contact Efrain Gonzalez, Program Manager, at
(202)482-1940 or via e-mail at *egonzalez@mbda.gov.* SUPPLEMENTARY INFORMATION: The Minority Business Development Agency publishes this notice to re-open the competitive solicitation for the Minority Business Enterprise Center program for the Louisiana MBEC, covering the geographic service area of the State of Louisiana, and the Detroit MBEC, covering the geographic service area of the State of Michigan. This program was originally solicited in the **Federal Register** on June 26, 2006 (71 FR 42351). The original deadline for receipt of proposals was 5 p.m., Eastern Daylight Time, on September 20, 2006. MBDA re-opens the solicitation period to provide the public additional time to submit proposals for Louisiana MBEC, covering the geographic service area of the State of Louisiana, and the Detroit MBEC, covering the geographic service area of the State of Michigan. MBDA is re-opening the solicitation period for these two locations as no timely applications were received for these areas under the requirements of the original competition. The new deadline for the receipt of proposals for the Louisiana and Detroit MBECs is 5 p.m. EDT, October 18, 2006, for both electronic and paper applications. Applicants who submitted or attempted to submit applications under the original competition for these two geographic service areas should consider re-submitting their applications during this period of re-opened competition to ensure that their applications are complete. All applications that are submitted between September 20, 2006 and October 18, 2006, will be considered timely. All other requirements for this solicitation remain the same. Limitation of Liability Funding for programs listed in this notice is contingent upon the availability of Fiscal Year 2007 appropriations. Applicants are hereby given notice that funds have not yet been appropriated for the programs listed in this notice. In no event will MBDA or the Department of Commerce be responsible for proposal preparation costs if these programs fail to receive funding or are cancelled because of other agency priorities. Publication of this announcement does not oblige MBDA to award any specific project or to obligate any available funds. Universal Identifier Applicants should be aware that they are required to provide a Dun and Bradstreet Data Universal Numbering System
(DUNS)number during the application process. See the October 30, 2002 **Federal Register** , Vol. 67, No. 210, pp. 66177B66178, for additional information. Organizations can receive a DUNS number at no cost by calling the dedicated toll-free DUNS Number request line at 1-866-705-5711 or via the Internet ( *http://www.dunandbradstreet.com* ). Department of Commerce Pre-Award Notification Requirements for Grants and Cooperative Agreements The Department of Commerce Pre-Award Notification Requirements for Grants and Cooperative Agreements contained in the **Federal Register** notice of December 30, 2004 (69 FR 78389), are applicable to this solicitation. Paperwork Reduction Act This document contains collection-of-information requirements subject to the Paperwork Reduction Act (PRA). The use of Standard Forms 424, 424A, 424B, SF-LLL, and CD-346 has been approved by the Office of Management and Budget
(OMB)under the respective control numbers 0348-0043, 0348-0044, 0348-0040, 0348-0046, and 0605-0001. Notwithstanding any other provision of law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the PRA unless that collection of information displays a currently valid OMB control number. Executive Order 12866 This notice has been determined to be not significant for purposes of Executive Order 12866. Executive Order 13132 (Federalism) It has been determined that this notice does not contain policies with Federalism implications as that term is defined in Executive Order 13132. Administrative Procedure Act/Regulatory Flexibility Act Prior notice and an opportunity for public comment are not required by the Administrative Procedure Act or any other law for rules concerning public property, loans, grants, benefits, and contracts (5 U.S.C. 553(a)(2)). Because notice and opportunity for comment are not required pursuant to 5 U.S.C. 553 or any other law, the analytical requirements of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) are inapplicable. Therefore, a regulatory flexibility analysis has not been prepared. Dated: September 29, 2006. Ronald N. Langston, National Director, Minority Business Development Agency. [FR Doc. E6-16503 Filed 10-4-06; 8:45 am] BILLING CODE 3510-21-P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration [I.D. 092706A] Nominations to the Marine Fisheries Advisory Committee AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Notice; request for nominations. SUMMARY: The Marine Fisheries Advisory Committee (MAFAC or Committee) is the only Federal advisory committee with the responsibility to advise the Secretary of Commerce (Secretary) on all matters concerning living marine resources that are the responsibility of the Department of Commerce. The Committee makes recommendations to the Secretary to assist in the development and implementation of Departmental regulations, policies and programs critical to the mission and goals of the NMFS. Nominations are encouraged from all interested parties involved with or representing interests affected by NMFS actions in managing living marine resources. Nominees should possess demonstrable expertise in a field related to the management of living marine resources and be able to fulfill the time commitments required for two annual meetings. Individuals serve for a term of three years for no more than two consecutive terms if re-appointed. NMFS is seeking qualified nominees to fill a vacancy and bring the Committee to its full compliment of 21 members. DATES: Nominations must be postmarked on or before November 20, 2006. ADDRESSES: Nominations should be sent to Laurel Bryant, Executive Director, MAFAC, Office of Constituent Services, NMFS, 1315 East-West Highway #9508, Silver Spring, MD 20910. FOR FURTHER INFORMATION CONTACT: Laurel Bryant, MAFAC Executive Director;
(301)713-2379 x171; e-mail: *Laurel.Bryant@noaa.gov* . SUPPLEMENTARY INFORMATION: The establishment of MAFAC was approved by the Secretary on December 28, 1970, and initially chartered under the Federal Advisory Committee Act, 5, U.S.C. App.2, on February 17, 1971. The Committee meets twice a year with supplementary subcommittee meetings as determined necessary by the Secretary. No less that 15 and no more than 21 individuals may serve on the Committee. Membership is comprised of highly qualified individuals representing commercial and recreational fisheries interests, environmental organizations, academic institutions, governmental, tribal and consumer groups from a balance of geographical regions, including the Hawaiian, Pacific and the U.S. Virgin Islands. A MAFAC member cannot be a Federal employee or a member of a Regional Fishery Management Council. Selected candidates must pass security checks and submit financial disclosure forms. Membership is voluntary, and except for reimbursable travel and related expenses, service is without pay. Each submission should include the submitting person or organization's name and affiliation, a cover letter describing the nominee's qualifications and interest in serving on the Committee, a curriculum vitae and or resume of nominee, and no more than three supporting letters describing the nominee's qualifications and interest in serving on the Committee. Self-nominations are acceptable. The following contact information should accompany each nominee's submission: name, address, phone number, fax number, and e-mail address (if available). Nominations should be sent to (see ADDRESSES ) and must be received by (see DATES ). The full text of the Committee Charter and its current membership can be viewed at the NMFS's web page at *www.nmfs.noaa.gov/mafac.htm* . Dated: October 2, 2006. William T. Hogarth, Assistant Administrator for Fisheries, National Marine Fisheries Service. [FR Doc. E6-16486 Filed 10-4-06; 8:45 am] BILLING CODE 3510-22-S DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration [I.D. 090706B] Incidental Takes of Marine Mammals During Specified Activities; Seismic Testing and Calibration in the Northern Gulf of Mexico, Fall 2006 AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Notice; proposed incidental take authorization; request for comments. SUMMARY: NMFS has received an application from the Lamont-Doherty Earth Observatory (L-DEO) for an Incidental Harassment Authorization
(IHA)to take small numbers of marine mammals, by harassment, incidental to conducting an acoustic calibration and seismic testing program in the northern Gulf of Mexico in Fall, 2006. Under the Marine Mammal Protection Act (MMPA), NMFS is requesting comments on its proposed IHA for these activities. DATES: Comments and information must be received no later than November 6, 2006. ADDRESSES: Comments on the application should be addressed to Michael Payne, Chief, Permits, Conservation and Education Division, Office of Protected Resources, National Marine Fisheries Service, 1315 East-West Highway, Silver Spring, MD 20910-3225. The mailbox address for providing email comments is *PR1.090706B@noaa.gov* . NMFS is not responsible for e-mail comments sent to addresses other than the one provided here. Comments sent via e-mail, including all attachments, must not exceed a 10-megabyte file size. A copy of the application containing a list of the references used in this document may be obtained by writing to the address specified above, telephoning the contact listed below (see FOR FURTHER INFORMATION CONTACT ), or visiting the internet at: *http://www.nmfs.noaa.gov/pr/permits/incidental.htm* . Documents cited in this notice may be viewed, by appointment, during regular business hours, at the aforementioned address. FOR FURTHER INFORMATION CONTACT: Jolie Harrison, Office of Protected Resources, NMFS,
(301)713-2289, ext 166. SUPPLEMENTARY INFORMATION: Background Sections 101(a)(5)(A) and
(D)of the MMPA (16 U.S.C. 1361 *et seq.* ) direct the Secretary of Commerce to allow, upon request, the incidental, but not intentional, taking of marine mammals by U.S. citizens who engage in a specified activity (other than commercial fishing) within a specified geographical region if certain findings are made and either regulations are issued or, if the taking is limited to harassment, a notice of a proposed authorization is provided to the public for review. Authorization shall be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s), will not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses, and that the permissible methods of taking and requirements pertaining to the mitigation, monitoring and reporting of such takings are set forth. NMFS has defined “negligible impact” in 50 CFR 216.103 as ”...an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.” Section 101(a)(5)(D) of the MMPA established an expedited process by which citizens of the United States can apply for an authorization to incidentally take small numbers of marine mammals by harassment. Except with respect to certain activities not pertinent here, the MMPA defines “harassment” as: any act of pursuit, torment, or annoyance which
(i)has the potential to injure a marine mammal or marine mammal stock in the wild [Level A harassment]; or
(ii)has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering [Level B harassment]. Section 101(a)(5)(D) establishes a 45-day time limit for NMFS review of an application followed by a 30-day public notice and comment period on any proposed authorizations for the incidental harassment of marine mammals. Within 45 days of the close of the comment period, NMFS must either issue or deny issuance of the authorization. Summary of Request On June 2, 2006, NMFS received an application from L-DEO for the taking, by Level B harassment, of several species of marine mammals incidental to conducting, with research funding from the National Science Foundation (NSF), an acoustic calibration and seismic testing program in the northern Gulf of Mexico in Fall, 2006. This project will be conducted with L-DEO's new seismic vessel, the *R/V Marcus G. Langseth* ( *Langseth* ), which will deploy different configurations of airguns and a different bottom-mapping sonar than used previously by L-DEO. L-DEO requests that it be issued an IHA allowing Level B Harassment takes of marine mammals incidental to the planned seismic surveys in the Gulf of Mexico. The primary purpose of the calibration program is to obtain measurement data to better understand the sound fields around various configurations of the 36-airgun array and the GI guns, during seismic operations in different water depths. The data will be used to verify and refine model-based estimates of “safety radii” for different configurations of the 36-airgun array and the GI guns that will be used during future seismic surveys to be conducted by L-DEO. Such data are important to better define the distances within which mitigation may be necessary in order to avoid exposing marine mammals to received sound levels above those believed to have adverse effects, as well as to develop a better general understanding of the impact of man-made acoustic sources on marine mammals. Description of the Specified Activity The *Langseth* is expected to depart Mobile, AL in late October 2006 (at the earliest) and will transit to the survey area in the northern Gulf of Mexico. The survey will encompass an area between 24oN. and 31oN. and between 83°W. and 96°W., which is within the Exclusive Economic Zone
(EEZ)of the U.S.A. The proposed study will consist of three phases:
(1)an initial testing/ shakedown phase,
(2)measurements of the sounds produced by various airgun arrays to be used by the *Langseth* (calibration), and
(3)a three-dimensional
(3D)seismic testing phase. The entire survey, calibration and testing included, will take approximately 25 days and include approximately 1420 km (174 hours) of airgun operation. Measurements will be made during seismic operations in three categories of water depth: shallow (<100 m or <328 ft), intermediate/slope (100-1000 m or 328-3281 ft), and deep (>1000 m or >3281 ft). The vessel will transit to Miami after the study is completed. The exact dates of the activities will depend on logistics and weather conditions. Vessel Specifications The *Langseth* is owned by NSF and operated by L-DEO. The *Langseth* will tow the airgun array and, at times, up to four 6-km (3.7-mi) streamers containing hydrophones along predetermined lines. The *Langseth* will also deploy a floating spar buoy and a bottom-moored hydrophone array. The *Langseth* has a length of 71.5 m (235 ft), a beam of 17.0 m (56 ft), and a maximum draft of 5.9 m (19 ft). The gross tonnage is 2925 and the *Langseth* can accommodate 55 people. The ship is powered by two Bergen BRG-6 engines each producing 3550 hp; the vessel also has an 800-hp bowthruster. The operation speed during seismic acquisition is typically 7.4-9.3 km/h (4-5 kt). When not towing seismic survey gear, the *Langseth* can cruise at 20-24 km/h (11-13 kt). The *Langseth* has a range of 25,000 km (13,500 nm). Given the presence of the airgun array (and at times streamer(s)) behind the vessel, the turning rate of the ship while the gear is deployed is limited to five degrees per minute. Thus, the maneuverability of the vessel is limited during operations. Acoustic Source Specifications Airguns The full airgun array on the *Langseth* consists of 36 airguns, with a total discharge volume of 6600 in 3 . The array is made up of four identical linear arrays or strings, with 10 airguns on each string. For each operating string, nine airguns will be fired simultaneously, while the tenth is kept in reserve as a spare, to be turned on in case of failure of another airgun. The calibration phase will use the full 36-airgun array and subsets thereof. The subsets will consist of either 1 string (9 airguns, 1650 in 3 ) or 2 strings (18 airguns, 3300 in 3 ). In addition, sounds from a single 45 in 3 GI gun and 2 GI guns (210 in 3 ) will be measured. During the seismic testing phase, the 2-string array will be used at most times, although the full 36-airgun array may also be used. The 36-airgun array will consist of a mixture of Bolt 1500LL and 1900LLX airguns, ranging in size from 40 to 360 in 3 . The airguns will fire for a brief (0.1 s) pulse every 30 s and will be silent during the intervening periods. The airgun array will be towed approximately 50-100 m (164-328 ft) behind the seismic vessel at a depth of 6-12 m (20-39 ft). The dominant frequency component is 0-188 Hz. The specifications of each source planned for use are described in Table 1. 1 GI Gun 2 GI Guns 1 Single Airgun 9-Airgun Array (1 String) 18-Airgun Array (2 Strings) 36-Airgun Array (4 Strings) Airgun Specifications Energy Source One 45 in 3 GI Airgun Two 105 in 3 GI Airguns One 2000 psi Bolt Airgun Nine 2000 psi Bolt Airguns of 40-360 in 3 Eighteen 2000 psi Bolt Airguns of 40-360 in 3 Thirty-six 2000 psi Bolt Airguns of 40-360 in 3 Air Discharge Volume (in 3 ) 45 in3 210 in 3 40 in 3 1650 in 3 3300 in 3 6600 in 3 Towing Depth of Source 2.5m 3m 6 m 6m 6m 6m or 12m Source Output (dB re 1 miPa m) 0-pk (pk.pk)* 225.3 (230.7) 237
(243)246
(253)252
(259)259
(265)Proposed Approximate Airgun Use Calibration Phase Shallow Site (30-60m) 10km 10km 34km 34km 34km Intermediate/Slope Site
(475m)34km 34km> 34km Deep Site (1500m) 10km 10km 45km 45km 45km Testing Phase Shallow Site (<100m) 89km 24km 175km 58km Intermediate/Slope (100-1000 m) 89km 24km 175km 58km Deep (>1000 m) 89km 24km 175km 58km Table 1. L-DEO airgun configurations and proposed approximate use for each configuration by depth and phase. * The root mean square values (typically discussed in biological literature) for these sources will generally be about 10-15 dB lower than those reflected here Multibeam Sonar The ocean floor will be mapped with the 12-kHz Simrad EM120 MBB sonar. This sonar will be operated from the *Langseth* simultaneous with the airgun array during the seismic testing program, but will likely be operated on its own during the acoustic calibration study. The Simrad EM120 operates at 11.25-12.6 kHz and will be hull-mounted on the *Langseth* . The beamwidth is 1° fore-aft and 150° athwartship. The maximum source level is 242 dB re 1 μPa. The pressure level is expected to drop to 180 dB at a distance of 1 km or 0.5 nm (this distance is the maximum estimate for on-axis and with no defocusing); pressure level does not vary with water depth. Each “ping” consists of nine successive fan-shaped transmissions, each ensonifying a sector that extends 1° fore-aft and 16° in the cross-track direction. The transmission length varies with water depth; each of the nine transmissions is approximately 2 ms in shallow water, 5 ms at intermediate water depths, and 15 ms in deep water. The nine successive transmissions span an overall cross-track angular extent of about 150°, with 16 ms gaps between the pulses for successive sectors. A receiver in the overlap area between two sectors would receive two pulses separated by a 16-ms gap. The “ping” interval varies with water depth and ranges from 0.2 s in really shallow water, to approximately 5 s at 1000 m (3281 ft) and 20 s at 4000 m (13,124 ft). Airgun Operations Acoustic Calibration Study *Location of Sites* - L-DEO will work together with Texas A&M University to choose the exact study sites at the three depths, however, the approximate locations are indicated in Figure 1 of L-DEO's application. Site locations will depend on currents, surface ducts, and concentrations of marine mammals. Sites will be chosen to avoid high currents with large vertical shear, as were encountered during the 2003 study. Conductivity/Temperature/Depth
(CTDs)and Expendable Bathythermograph
(XBTs)measurements will be taken at each site to confirm local water column properties. Near-surface ducts may play a significant role in the propagation of sound, so a deep site with and without a surface duct will be surveyed if practical. Areas with concentrations of marine mammals will be avoided. L-DEO proposes to start with the shallow site, where the instrument redundancy will allow some flexibility in gain settings to ensure that signals will not be clipped. This information will be used to optimize gain settings at the slope and deep sites. The water depths at the three different depth sites are expected to be 30-60 m (98-197 ft) at the shallow site, approximately 475 m (1,558 ft) at the intermediate/slope site, and approximately1500 m (4922 ft) at the deep site. This phase of the study will take approximately 14 days. *Acoustic Measurements* - The 2006 program is designed to document the received levels of the airgun sounds, relative to distance, during operation of the *Langseth* 's 36-airgun 4-string array and subsets thereof, and up to 2 GI guns. During the calibration study, three configurations (1, 2, and 4 strings in equal amounts) of the 36-airgun array will be measured in three different water depths (deep, intermediate/slope, and shallow). A single and two GI guns will be measured in deep and shallow water only. Measurements will be made at varying distances from the guns using suitable electronics installed in the spar buoy and a bottom-moored hydrophone array. In addition, one 6-km (3.7-mi) long hydrophone streamer will be used at times for calibrations of shallow-water safety radii. The hydrophones will be deployed and retrieved by the *Langseth* . At each of the three sites, the *Langseth* , towing various configurations of the 36-airgun array at a depth of 6 m (20 ft), will travel toward the spar buoy and/or moored hydrophone array from a distance of approximately10-15 km (5.4-8.1 nm) away and will pass over the receiving system. The *Langseth* will then continue out to a distance of approximately 10-15 km beyond the hydrophones. The approximate 15 km distance will be used at the shallow and slope sites (total line length of 30 km or 16 nm), and the approximate 10 km distance will be used at the deep-water site (total line length of 20 km or 11 nm). Longer lines are planned at the shallow and slope sites than at the deep site because in 2003, received sound levels diminished below 160 dB re 1 μPa
(rms)well within 10 km at the deep site, but not at the shallow site (Tolstoy *et al.* , 2004a,b). After completing the straight line, the airgun array will then be towed in a spiral fashion towards the hydrophones in order to measure received levels as a function of distance when the receiving hydrophones are to the side of the trackline. The spirals are designed such that the radius will decrease linearly with time. At each site, the *Langseth* will make one straight line pass over the receiving hydrophones with the 36-airgun array, followed by the spiral pattern towards the hydrophones. At the deep site, two additional 20-km (11-nm) straight lines will be shot, for a total of three 20-km straight lines at that site:
(a)with the airgun array at 6 m (20 ft) tow depth,
(b)with the array at a tow depth of 12 m (39 ft), and
(c)in waters with/without a surface duct [whichever was not the case in
(a)and (b)]. In addition, two 10-km (5.4-nm) straight line passes will be made at the deep as well as the shallow-water sites; one pass at each site will be made with a single GI gun, and one pass will be made using 2 GI guns. The total number of kilometers and hours of airgun shooting during the calibration phase of the project are indicated in Table 1. However, operations at each site will require approximately 36 hours, allowing for the time needed to deploy and recover the hydrophones as well as the time to shoot the survey. Although the lines will be longer for the slope and shallow sites, the deep site is likely to take the longest, because of the increased drop and surfacing time for the instruments plus the plans to shoot three 20 km (11 nm) lines. Airguns will fire every 30 s, and operations are proposed to occur 24 hours per day to maximize effective and economic use of the limited ship time and to maximize the amount of calibration data collected. Operating airguns over 24-hour periods will also reduce the overall duration of airgun operations at each site, thus reducing the span of time when marine mammals in those areas will be exposed to airgun sounds. Systematic Testing Phase The exact site of the seismic testing phase has not yet been chosen, but is planned to range from shallow (approximately 30 m or 98 ft) to deep (>1000 m or 3281 ft) water and will fall within the general area described earlier. During the testing phase, the *Langseth* will deploy the 2-string 18-airgun array (and at times the 36-airgun array) as an energy source; a single 40 in3 airgun will be fired during turns. The *Langseth* will also deploy a receiving system consisting of up to four 6-km (3.7-mi) towed hydrophone streamers. There will be 200 m (656 ft) separation between adjacent pairs of the four streamers. As the airgun array is towed along the survey lines, the receiving system will receive the returning acoustic signals and transfer the data to the on-board processing system. The airgun array will be towed at a depth of 9 m (30 ft). The testing phase will consist of a series of tracklines in a racetrack-type configuration. This racetrack will consist of 17 loops, with a total of 35 tracklines. Each trackline will be approximately 20 km (10.8 nm) long, for a total of approximately 700 km (378 nm) of shooting along tracklines. The spacing between adjacent tracklines will be 400 m (1312 ft). An additional 10 km (5.4 nm) of seismic will be shot during each turn between lines and during the ensuing run-in (the distance from the end of the turn to the start of the line during which the airgun array will be ramped up). In total, this will account for an additional 340 km (183 nm). Of this 340 km, approximately 73 km (39.4 nm) will consist of ramp ups, and 267 km (144.2 nm) will be shot with a 40 in 3 airgun during turns. These numbers are also presented in Table 1. In total, 1040 km (562 nm) of seismic will be shot. The seismic testing program will take approximately 4 to 7 days. Characteristics of Airgun Pulses Discussion of the characteristics of airgun pulses has been provided in Appendix B of L-DEO's application and in previous **Federal Register** notices (see 69 FR 31792 (June 7, 2004) or 69 FR 34996 (June 23, 2004)). Reviewers are referred to those documents for additional information. Safety Radii To aid in determining at what point during exposure to seismic airguns (and other acoustic sources) marine mammals are harassed, pursuant to the MMPA, and in developing effective mitigation measures, NMFS applies certain acoustic thresholds. The distance from the sound source at which an animal would be exposed to these different received sound levels may be estimated and is typically referred to as a safety radii. These safety radii are specifically used to help NMFS estimate the number of marine mammals likely to be harassed by the proposed activity and in deciding how close a marine mammal may approach an operating sound source before the applicant will be required to power-down or shut down the sound source. L-DEO has estimated the safety radii around their proposed operations using a model, but also by adjusting the model results based on empirical data gathered in the Gulf of Mexico in 2003. Additional information regarding how the safety radii were calculated and how the empirical measurements were used to correct the modeled numbers may be found in Section I and Appendix A of L-DEO's application. Using the modeled distances and various correction factors, Table 2 shows the distances at which three rms sound levels (190 dB, 180 dB, and 160 dB) are expected to be received from the various airgun configurations in shallow, intermediate, and deep water depths. Source and Volume Tow Depth
(m)Water Depth Predicted RMS Radii
(m)190 dB 180 dB 160 dB Deep 9 25 236 Single GI gun 2.5 Intermediate/Slope 13.5 38 354 45 in 3 Shallow 113 185 645 Deep 20 69 670 2 GI guns 3 Intermediate/Slope 30 104 1005 210 in 3 Shallow 294 511 1970 Deep 12 36 360 Single Bolt 6 Intermediate/Slope 18 54 540 40 in 3 Shallow 150 267 983 1 string Deep 200 650 6200 9 airguns 6 Intermediate/Slope 300 975 7880 1650 in 3 Shallow 1450 2360 8590 2 strings/ENT> Deep 250 820 6700 18 airguns 6 Intermediate/Slope 375 1230 7370 3300 in 3 Shallow 1820 3190 8930 4 strings Deep 410 1320 8000 36 airguns 6 Intermediate/Slope 615 1980 8800 6600 in 3 Shallow 2980 5130 10670 4 strings Deep 620 1980 12000 36 airguns 12 Intermediate/Slope 930 2970 13200 6600 in 3 Shallow 4500 7700 16000 Table 2. Modeled distances towhich sound levels 190,180, and 160 dB re 1uPa
(rms)might be received in shallow (>100 m), intermediate/slope (100-1000 m), and deep (<1000 m) water from the various sources planned for use during the Gulf of Mexico study, fall 2006. Description of Marine Mammals in the Activity Area In the Gulf of Mexico, 28 cetacean species and one species of manatee are known to occur (Jefferson and Schiro, 1997; Wursig *et al.* , 2000; Table 3). In the U.S., manatees are managed by the U.S. Fish & Wildlife Service (USFWS), are unlikely to be encountered in or near the open waters of the Gulf of Mexico where seismic operations will occur, and are, therefore, not addressed further in this document. Most of these species of cetaceans occur in oceanic waters (>200 m or 656 ft deep) of the Gulf, whereas the continental shelf waters (<200 m) are primarily inhabited by bottlenose dolphins and Atlantic spotted dolphins (Mullin and Fulling 2004). Species Habitat Occurrence in GOM Abundance in GOM and/or North Atlantic BEST Estimated Exposures Approx. % of Population MAXIMUM Est. Exposures Prop. IHA** Approx. % of Population Odontocetes Sperm whale Usually pelagic and deep seas Common 1349/13190
(add)22 0.2 27 0.2 Pygmy sperm whale Deeper waters off the shelf Common 742/695
(add)56 3.9 4.1 Dwarf sperm whale Deeper waters off the shelf Common Cuvier's beaked whale Pelagic Rare 159/3196
(add)10 0.3 21 0.7 Sowerby's beaked whale Pelagic Extralimital 5 0.8 8 1.2 Gervais' beaked whale Pelagic Uncommon 106/541
(add)5 0.8 8 1.2 Blainville's beaked whale Pelagic Rare 5 0.8 8 1.2 Rough-toothed dolphin Mostly pelagic Common 2223/274
(add)58 2.3 92 3.7 Bottlenose dolphin Cont. shelf, coastal and offshore Common 25,320/2239/29774
(add)773 1.3 1713 5.0 Pantropical spotted dolphin Mainly pelagic Common 91,321/13117
(add)1282 1.2 1587 1.5 Atlantic spotted dolphin Mainly coastal waters Common 30,947/52279
(add)876 1.1 1755 0.2 Spinner dolphin Pelagic in Gulf of Mexico Common 11,971 168 1.4 921 7.7 Clymene dolphin Pelagic Common 17,355/6086
(add)244 1.0 311 1.3 Stripped dolphin Off the continental shelf Common 6505/61546
(add)91 0.1 134 0.2 Short-beaked common dolphin Cont. shelf and pelagic waters Possible 30,768 0 0.0 0(5)** <0.1 Long-beaked common dolphin Coastal Possible N.A. 0 0.0 0(5)** 0.0 Praser's dolphin Water>l000m Common 726 10 1.4 60 8.3 Risso's dolphin Waters 400-1000 m Common 2169/29110
(add)54 0.2 81 0.3 Mellon-headed whale Oceanic Common 3451 49 1.4 142 4.1 Pygmy killer whale Oceanic Uncommon 408 10 2.6 21 5.1 False killer whale Pelagic Uncommon 1038 14 1.4 28 2.7 Killer whale Widely distributed Uncommon 133/6600
(add)3 <0.1 5 0.1 Short-finned pilot whale Mostly pelagic Common 2388/780000/14524 34 <0.1 98 <0.1 Long-finned pilot whale Mostly pelagic Possible N.A. 0 0(5)** Mysticetes North Atlantic right whale* Coastal and shelf waters Extralimital 291 0 0 Humpback whale* Mainly near-shore waters/banks Rare 11,570/10400 0 0 Minke whale Coastal waters Rare 149,000 0 0 Bryde's whale Pelagic and coastal Uncommon 40/90000 1 2.5 2 5.0 Sei whale* Primarily offshore, pelagic Rare 12-13,000 0 0 Fin whale* Cont. slope, mostly pelagic Rare 2814/47300 0 0 Blue whale* Coastal, shelf, and oceanic waters Extralimital 308 0 0 Pinnipeds Hooded seal Coastal Vagrant 400,000 z 0 0(2)** <0.1 Total 3770 7096 Table 3. Abundance, preferred habitat, and commonness of the marine mammal species found in the survey area. The far right columns indicate the estimated number each species that will be exposed to 160 dB based on best and maximum density estimates. NMFS believes that, when mitigation measures are taken into consideration, the activity is likely to result in take of numbers of animals less than those indicated by the best column, however, L-DEO has asked for authorization of the maximum. *Federally listed endangered, ** Parenthetical number indicates take authorization, though exposure estimate is 0 Seven species that may occur in the Gulf of Mexico are listed as endangered under provisions of the U.S. Endangered Species Act (ESA), including the sperm, North Atlantic right, humpback, sei, fin, and blue whale, as well as the West Indian manatee. However, of those species, only sperm whales are likely to be encountered. In addition to the 28 species known to occur in the Gulf of Mexico, another three species of cetaceans could potentially occur there: the long-finned pilot whale, the long-beaked common dolphin, and the short-beaked common dolphin (Table 3). Though any pinnipeds sighted in the study area would be extralimital, hooded seals have been reported in Florida and L-DEO has requested authorization for the take of 2 animals. During the 2003 acoustical calibration study in the Gulf of Mexico from 28 May to 2 June, a total of seven visual sightings of marine mammals were documented from the *Maurice Ewing* ; these included a total of approximately 38-40 individuals (LGL Ltd. 2003). In addition, three sea turtles were sighted. These totals include times when airguns were not operating as well as times when airguns were firing. Visual monitoring effort consisted of 60.9 hours of observations (all in daylight) along 891.5 km of vessel trackline on seven days, and passive acoustic monitoring
(PAM)occurred for approximately 32 hours. Most of the monitoring effort (visual as well as acoustic) occurred when airguns were not operating, since airgun operations were limited during the 2003 study. No marine mammals were detected during acoustic monitoring. Marine mammal and sea turtle sightings and locations during the 2003 calibration study are summarized in Appendix C of L-DEOs application. Detailed information regarding the status and distribution of these marine mammals may be found in sections III and IV of L-DEOs application. Potential Effects of the Proposed Activity on Marine Mammals Summary of Potential Effects of Airgun Sounds on Marine Mammals The effects of sounds from airguns might include one or more of the following: tolerance, masking of natural sounds, behavioral disturbance, and at least in theory, temporary or permanent hearing impairment, or non-auditory physical or physiological effects (Richardson *et al.* , 1995). These effects are discussed below, but also in further detail in Appendix B of L-DEO's application. The potential effects of airguns discussed below are presented without consideration of the mitigation measures that L-DEO has presented and that will be required by NMFS. When these measures are taken into account, it is unlikely that this project would result in temporary, or especially, permanent hearing impairment or any significant non-auditory physical or physiological effects. Tolerance Numerous studies have shown that pulsed sounds from airguns are often readily detectable in the water at distances of many kilometers. A summary of the characteristics of airgun pulses is provided in Appendix B of L-DEO's application. Studies have also shown that marine mammals at distances more than a few kilometers from operating seismic vessels often show no apparent response (tolerance) (Appendix B (e)). That is often true even in cases when the pulsed sounds must be readily audible to the animals based on measured received levels and the hearing sensitivity of that mammal group. Although various baleen whales, toothed whales, and (less frequently) pinnipeds have been shown to react behaviorally to airgun pulses under some conditions, at other times mammals of all three types have shown no overt reactions. In general, pinnipeds, small odontocetes, and sea otters seem to be more tolerant of exposure to airgun pulses than are baleen whales. Pinnipeds and sea otters are not found in the Gulf of Mexico; small odontocetes of numerous species are the predominant marine mammals in the area. Masking Masking effects of pulsed sounds (even from large arrays of airguns) on marine mammal calls and other natural sounds are expected to be limited, although there are very few specific data of relevance. Some whales are known to continue calling in the presence of seismic pulses. Their calls can be heard between the seismic pulses (e.g., Richardson *et al.* , 1986; McDonald *et al.* , 1995; Greene *et al.* , 1999; Nieukirk *et al.* , 2004). Although there has been one report that sperm whales cease calling when exposed to pulses from a very distant seismic ship (Bowles *et al.* , 1994), a more recent study reports that sperm whales off northern Norway continued calling in the presence of seismic pulses (Madsen *et al.* , 2002). That has also been shown during recent work in the Gulf of Mexico (Tyack *et al.* , 2003). Masking effects of seismic pulses are expected to be negligible in the case of the smaller odontocete cetaceans, given the intermittent nature of seismic pulses. Also, the sounds important to small odontocetes are predominantly at much higher frequencies than are airgun sounds. Masking effects, in general, are discussed further in Appendix B (d). Disturbance Reactions Disturbance includes a variety of effects, including subtle changes in behavior, more conspicuous changes in activities, and displacement. Simple exposure to sound, or brief reactions that do not disrupt behavioral patterns in a potentially significant manner, do not constitute harassment or “taking”. By potentially significant, we mean “in a manner that might have deleterious effects to the well-being of individual marine mammals or their populations”. Reactions to sound, if any, depend on species, state of maturity, experience, current activity, reproductive state, time of day, and many other factors. If a marine mammal does react briefly to an underwater sound by minorly changing its behavior or moving a small distance, the impacts of the change are unlikely to be significant to the individual, let alone the stock or the species as a whole. However, if a sound source displaces marine mammals from an important feeding or breeding area for a prolonged period, impacts on the animals could be significant. There are many uncertainties in predicting the quantity and types of impacts of noise on marine mammals. As mentioned earlier in this document, NMFS applies acoustic criteria developed to help estimate the number of animals likely to be harassed by a particular sound source in a given area and for use in the development of shutdown zones for mitigation. The sound criteria used to estimate how many marine mammals might be disturbed to some biologically-important degree by a seismic program are based on behavioral observations during studies of several species. However, information is lacking for many species. Detailed studies have been done on humpback, gray, and bowhead whales, and on ringed seals. Less detailed data are available for some other species of baleen whales, sperm whales, small toothed whales, and sea otters. Baleen Whales Baleen whales generally tend to avoid operating airguns, but avoidance radii are quite variable. There is no specific information about reactions of Bryde's whales-the baleen whales most likely to be encountered in the Gulf of Mexico-to seismic pulses. Whales are often reported to show no overt reactions to pulses from large arrays of airguns at distances beyond a few kilometers, even though the airgun pulses remain well above ambient noise levels out to much longer distances. However, baleen whales exposed to strong noise pulses from airguns often react by deviating from their normal migration route and/or interrupting their feeding and moving away. In the case of the migrating gray and bowhead whales, the observed changes in behavior appeared to be of little or no biological consequence to the animals. They simply avoided the sound source by displacing their migration route to varying degrees, but within the natural boundaries of the migration corridors. Studies of gray, bowhead, and humpback whales have determined that received levels of pulses in the 160-170 dB re 1 μPa rms range seem to cause obvious avoidance behavior in a substantial fraction of the animals exposed. In many areas, seismic pulses from large arrays of airguns diminish to those levels at distances ranging from 4.5 to 14.5 km (2.4-7.8 nm) from the source. A substantial proportion of the baleen whales within those distances may show avoidance or other strong disturbance reactions to the airgun array. Subtle behavioral changes sometimes become evident at somewhat lower received levels, and recent studies have shown that some species of baleen whales, notably bowhead and humpback whales, at times show strong avoidance at received levels lower than 160-170 dB re 1 μPa rms. Bowhead whales migrating west across the Alaskan Beaufort Sea in autumn, in particular, are unusually responsive. Substantial avoidance occurred out to distances of 20-30 km (11-16 nm) from a medium-sized airgun source, where received sound levels were on the order of 130 dB re 1 μPa rms (Miller *et al.* , 1999; Richardson *et al.* , 1999; see Appendix B (e)). More recent research on bowhead whales (Miller *et al.* , 2005), however, suggests that during the summer feeding season, bowheads are not nearly as sensitive to seismic sources, with onset of avoidance at the more typical level of 160-170 dB re 1 μPa rms. Malme *et al.* , (1986, 1988) studied the responses of feeding eastern gray whales to pulses from a single 100 in3 airgun off St. Lawrence Island in the northern Bering Sea. They estimated, based on small sample sizes, that 50 percent of feeding gray whales ceased feeding at an average received pressure level of 173 dB re 1 μPa on an (approximate) rms basis, and that 10 percent of feeding whales interrupted feeding at received levels of 163 dB. Those findings were generally consistent with the results of experiments conducted on larger numbers of gray whales that were migrating along the California coast. Blue, sei, fin, and minke whales have occasionally been reported in areas ensonified by airgun pulses. Sightings by observers on seismic vessels off the U.K. from 1997 to 2000 suggest that, at times of good sightability, numbers of rorquals seen are similar when airguns are shooting and not shooting (Stone 2003). Although individual species did not show any significant displacement in relation to seismic activity, all baleen whales combined were found to remain significantly further from the airguns during shooting compared with periods without shooting (Stone 2003). Data on short-term reactions (or lack of reactions) of cetaceans to impulsive noises do not necessarily provide information about long-term effects. It is not known whether impulsive noises affect reproductive rate or distribution and habitat use in subsequent days or years. However, gray whales continued to migrate annually along the west coast of North America despite intermittent seismic exploration and much ship traffic in that area for decades (Appendix A in Malme *et al.* , 1984). Bowhead whales continued to travel to the eastern Beaufort Sea each summer despite seismic exploration in their summer and autumn range for many years (Richardson *et al.* , 1987). Populations of both gray and bowhead whales grew substantially during this time. In any event, the brief exposures to sound pulses from the proposed airgun source are highly unlikely to result in prolonged effects. Toothed Whales Little systematic information is available about reactions of toothed whales to noise pulses. Few studies similar to the more extensive baleen whale/seismic pulse work summarized above and in Appendix B have been reported for toothed whales. However, systematic work on sperm whales is underway (Tyack *et al.* , 2003), and there is an increasing amount of information about responses of various odontocetes to seismic surveys based on monitoring studies (e.g., Stone, 2003; Haley and Koski, 2004; Smultea *et al.* , 2004; Holst *et al.* , 2005a,b; MacLean and Koski, 2005). Seismic operators sometimes see dolphins and other small toothed whales near operating airgun arrays, but in general there seems to be a tendency for most delphinids to show some limited avoidance of seismic vessels operating large airgun systems. However, some dolphins seem to be attracted to the seismic vessel and floats, and some ride the bow wave of the seismic vessel even when large arrays of airguns are firing. Nonetheless, there have been indications that small toothed whales sometimes move away, or maintain a somewhat greater distance from the vessel, when a large array of airguns is operating than when it is silent (e.g., Goold, 1996a,b,c; Calambokidis and Osmek, 1998; Stone, 2003). In most cases the avoidance radii for delphinids appear to be small, on the order of 1 km (0.5 nm) or less. However, aerial surveys during seismic operations in the southeastern Beaufort Sea recorded much lower sighting rates of beluga whales within 10-20 km (5-11 nm) of an active seismic vessel. These results were consistent with the low number of beluga sightings reported by observers aboard the seismic vessel, suggesting that some belugas might be avoiding the seismic operations at distances of 10-20 km (Miller *et al.* , 2005). Captive bottlenose dolphins and beluga whales exhibit changes in behavior when exposed to strong pulsed sounds similar in duration to those typically used in seismic surveys (Finneran *et al.* , 2000, 2002; Finneran and Schlundt 2004). The animals tolerated high received levels of sound before exhibiting aversive behaviors. For pooled data at 3, 10, and 20 kHz, sound exposure levels during sessions with 25, 50, and 75 percent altered behavior were 180, 190, and 199 dB re 1 μPa 2 . s, respectively (Finneran and Schlundt, 2004). Pinnipeds No pinnipeds are expected to be encountered in the Gulf of Mexico, and thus it is most likely that none will be affected by the proposed activity. At most, up to two extralimital hooded seals might be encountered and potentially be behaviorally disturbed or have a low-level physiological response to the seismic exposure. Hearing Impairment and Other Physical Effects Temporary or permanent hearing impairment is a possibility when marine mammals are exposed to very strong sounds, but there has been no specific documentation of this for marine mammals exposed to sequences of airgun pulses. Current NMFS policy regarding exposure of marine mammals to high-level sounds is that cetaceans and pinnipeds exposed to impulsive sounds of 180 and 190 dB re 1 μPa
(rms)or above, respectively, are considered to have been incidentally taken by Level A Harassment. These levels are precautionary. Several aspects of the planned monitoring and mitigation measures for this project are designed to detect marine mammals occurring near the airguns, and to avoid exposing them to sound pulses that could potentially cause hearing impairment. In addition, many cetaceans are likely to show some avoidance of the area with high received levels of airgun sound. In those cases, the avoidance responses of the animals themselves will reduce or (most likely) avoid any possibility of hearing impairment. Non-auditory physical effects might also occur in marine mammals exposed to strong underwater pulsed sound. Possible types of non-auditory physiological effects or injuries that theoretically might occur in mammals close to a strong sound source include stress, neurological effects, bubble formation, and other types of organ or tissue damage. It is possible that some marine mammal species (i.e., beaked whales) may be especially susceptible to injury and/or stranding when exposed to strong pulsed sounds. However, as discussed below, there is no definitive evidence that any of these effects occur even for marine mammals in close proximity to large arrays of airguns. It is unlikely that any effects of these types would occur during the present project given the brief duration of exposure of any given mammal, and the planned monitoring and mitigation measures (see below). The following subsections discuss in somewhat more detail the possibilities of TTS, permanent threshold shift (PTS), and non-auditory physical effects. Temporary Threshold Shift
(TTS)TTS is the mildest form of hearing impairment that can occur during exposure to a strong sound (Kryter, 1985). While experiencing TTS, the hearing threshold rises and a sound must be stronger in order to be heard. TTS can last from minutes or hours to (in cases of strong TTS) days. For sound exposures at or somewhat above the TTS threshold, hearing sensitivity recovers rapidly after exposure to the noise ends. Few data on sound levels and durations necessary to elicit mild TTS have been obtained for marine mammals, and none of the published data concern TTS elicited by exposure to multiple pulses of sound. For toothed whales exposed to single short pulses, the TTS threshold appears to be, to a first approximation, a function of the energy content of the pulse (Finneran *et al.* , 2002, 2005). Sound exposure level (SEL), which takes into account the duration of the sound, is the metric used to measure energy and uses the units dB re 1 μPa2 . s, as opposed to sound pressure level (SPL), which is the pressure metric used in the rest of this document (units - dB re 1 μPa). Given the available data, the received energy level of a single seismic pulse might need to be approximately 186 dB re 1 μPa 2 . s (i.e., 186 dB SEL or approximately 221-226 dB pk-pk) in order to produce brief, mild TTS. Exposure to several strong seismic pulses at received levels near 175-180 dB SEL might result in slight TTS in a small odontocete, assuming the TTS threshold is (to a first approximation) a function of the total received pulse energy. The distances from the *Langseth* 's airguns at which the received energy level would be expected to be 175 dB SEL are the distances shown in the 190 dB rms column in Table 2 (given that the rms level is approximately 15 dB higher than the SEL value for the same pulse). In deep water, where L DEO's model is directly applicable, seismic pulses with received energy levels 175 dB SEL (190 dB rms) are expected to be restricted to radii no more than 200-620 m (656-2034 ft) around the airguns. The specific radius would depend on number of operating airguns (9-36) and their operating depth (6 vs. 12 m). The depth associated with the above radii ranges from about 125 m (410 ft) for a 9-airgun array to =500 m (=1640 ft) for the 36-airgun array. For an odontocete closer to the surface, the maximum radius with 175 dB SEL or 190 dB rms would be smaller. In intermediate-depth and shallow water, the 175 dB SEL or 190 dB rms radius would be larger. For baleen whales, there are no data, direct or indirect, on levels or properties of sound that are required to induce TTS. However, no cases of TTS are expected given two considerations:
(1)the low abundance of baleen whales in the planned study area, and
(2)the strong likelihood that baleen whales would avoid the approaching airguns (or vessel) before being exposed to levels high enough for there to be any possibility of TTS. In pinnipeds, TTS thresholds associated with exposure to brief pulses (single or multiple) of underwater sound have not been measured. Initial evidence from prolonged exposures suggested that some pinnipeds may incur TTS at somewhat lower received levels than do small odontocetes exposed for similar durations (Kastak *et al.* , 1999; Ketten *et al.* , 2001; cf. Au *et al.* , 2000). However, pinnipeds are not expected to occur in or near the planned study area. Permanent Threshold Shift
(PTS)When PTS occurs, there is physical damage to the sound receptors in the ear. In some cases, there can be total or partial deafness, whereas in other cases, the animal has an impaired ability to hear sounds in specific frequency ranges. There is no specific evidence that exposure to pulses of airgun sound can cause PTS in any marine mammal, even with large arrays of airguns. However, given the possibility that mammals close to an airgun array might incur TTS, there has been further speculation about the possibility that some individuals occurring very close to airguns might incur PTS. Single or occasional occurrences of mild TTS are not indicative of permanent auditory damage in terrestrial mammals. Relationships between TTS and PTS thresholds have not been studied in marine mammals, but are assumed to be similar to those in humans and other terrestrial mammals. PTS might occur at a received sound level at least several decibels above that inducing mild TTS if the animal were exposed to strong sound pulses with rapid rise. Given the higher level of sound necessary to cause PTS as compared with TTS, it is even less likely that PTS could occur. In fact, even the levels immediately adjacent to the airguns may not be sufficient to induce PTS, especially because a mammal would not be exposed to more than one strong pulse unless it swam immediately alongside the airgun for a period longer than the inter-pulse interval. Baleen whales generally avoid the immediate area around operating seismic vessels. The planned monitoring and mitigation measures, including visual monitoring, PAM, power-downs, and shut downs of the airguns when mammals are seen within the “safety radii”, will minimize the probability of exposure of marine mammals to sounds strong enough to induce PTS. Non-auditory Physiological Effects Non-auditory physiological effects or injuries that theoretically might occur in marine mammals exposed to strong underwater sound include stress, neurological effects, bubble formation, and other types of organ or tissue damage. However, studies examining such effects are very limited. If any such effects do occur, they probably would be limited to unusual situations when animals might be exposed at close range for unusually long periods. It is doubtful that any single marine mammal would be exposed to strong seismic sounds for sufficiently long that significant physiological stress would develop. Until recently, it was assumed that diving marine mammals are not subject to the bends or air embolism. This possibility was first explored at a workshop (Gentry [ed.] 2002) held to discuss whether the stranding of beaked whales in the Bahamas in 2000 (Balcomb and Claridge 2001; NOAA and USN 2001) might have been related to bubble formation in tissues caused by exposure to noise from naval sonar. However, the opinions were inconclusive. Jepson *et al.*
(2003)first suggested a possible link between mid-frequency sonar activity and acute and chronic tissue damage that results from the formation in vivo of gas bubbles, based on the beaked whale stranding in the Canary Islands in 2002 during naval exercises. Fernandez *et al.* (2005a) showed those beaked whales did indeed have gas bubble-associated lesions as well as fat embolisms. Fernandez *et al.* (2005b) also found evidence of fat embolism in three beaked whales that stranded 100 km (54 nm) north of the Canaries in 2004 during naval exercises. Examinations of several other stranded species have also revealed evidence of gas and fat embolisms (e.g., Arbelo *et al.* , 2005; Jepson *et al.* , 2005a; Mendez *et al.* , 2005). Most of the afflicted species were deep divers. There is speculation that gas and fat embolisms may occur if cetaceans ascend unusually quickly when exposed to aversive sounds, or if sound in the environment causes the destabilization of existing bubble nuclei (Potter, 2004; Arbelo *et al.* , 2005; Fernandez *et al.* , 2005a; Jepson *et al.* , 2005b). Even if gas and fat embolisms can occur during exposure to mid-frequency sonar, there is no evidence that that type of effect occurs in response to airgun sounds. In general, little is known about the potential for seismic survey sounds to cause auditory impairment or other physical effects in marine mammals. Available data suggest that such effects, if they occur at all, would be limited to short distances and probably to projects involving large arrays of airguns. However, the available data do not allow for meaningful quantitative predictions of the numbers (if any) of marine mammals that might be affected in those ways. Marine mammals that show behavioral avoidance of seismic vessels, including most baleen whales and some odontocetes, are especially unlikely to incur auditory impairment or other physical effects. Also, the planned monitoring and mitigation measures include shut downs of the airguns, which will reduce any such effects that might otherwise occur. Strandings and Mortality Marine mammals close to underwater detonations of high explosive can be killed or severely injured, and the auditory organs are especially susceptible to injury (Ketten *et al.* , 1993; Ketten, 1995). Airgun pulses are less energetic and have slower rise times, and there is no proof that they can cause serious injury, death, or stranding even in the case of large airgun arrays. However, the association of mass strandings of beaked whales with naval exercises and, in one case, an L-DEO seismic survey, has raised the possibility that beaked whales exposed to strong pulsed sounds may be especially susceptible to injury and/or behavioral reactions that can lead to stranding. Seismic pulses and mid-frequency sonar pulses are quite different. Sounds produced by airgun arrays are broadband with most of the energy below 1 kHz. Typical military mid-frequency sonars operate at frequencies of 2-10 kHz, generally with a relatively narrow bandwidth at any one time. Thus, it is not appropriate to assume that there is a direct connection between the effects of military sonar and seismic surveys on marine mammals. However, evidence that sonar pulses can, in special circumstances, lead to physical damage and mortality (NOAA and USN 2001; Jepson *et al.* , 2003; Fernandez *et al.* , 2005a), even if only indirectly, suggests that caution is warranted when dealing with exposure of marine mammals to any high-intensity pulsed sound. In May 1996, 12 Cuvier's beaked whales stranded along the coasts of Kyparissiakos Gulf in the Mediterranean Sea. That stranding was subsequently linked to the use of low- and medium-frequency active sonar by a North Atlantic Treaty Organization
(NATO)research vessel in the region (Frantzis 1998). In March 2000, a population of Cuvier's beaked whales being studied in the Bahamas disappeared after a U.S. Navy task force using mid-frequency tactical sonars passed through the area; some beaked whales stranded (Balcomb and Claridge, 2001; NOAA and USN 2001). In September 2002, a total of 14 beaked whales of various species stranded coincident with naval exercises in the Canary Islands (Martel n.d.; Jepson *et al.* , 2003; Fernandez *et al.* , 2004). Some additional related incidents have also been reported, e.g., Southall *et al.* (2006). Also in Sept. 2002, there was a stranding of two Cuvier's beaked whales in the Gulf of California, Mexico, when the L-DEO vessel Maurice Ewing was operating a 20 airgun, 8490 in3 airgun array in the general area. The link between the stranding and the seismic surveys was inconclusive and not based on any physical evidence (Hogarth, 2002; Yoder, 2002). Nonetheless, that plus the incidents involving beaked whale strandings near naval exercises suggests a need for caution in conducting seismic surveys in areas occupied by beaked whales. No injuries of beaked whales are anticipated during the proposed study, due to the proposed monitoring and mitigation measures. Possible Effects of Multibeam Bathymetric
(MBB)Sonar Signals The Simrad EM120 12-kHz sonar will be operated from the source vessel at some times during the planned study. Sounds from the MBB sonar are very short pulses, occurring for 15 ms once every 5 to 20 s, depending on water depth. Most of the energy in the sound pulses emitted by this MBB sonar is at frequencies centered at 12 kHz. The beam is narrow (1°) in fore-aft extent and wide (150°) in the cross-track extent. Each ping consists of nine successive fan-shaped transmissions (segments) at different cross-track angles. Any given mammal at depth near the trackline would be in the main beam for only one or two of the nine segments. Also, marine mammals that encounter the Simrad EM120 are unlikely to be subjected to repeated pulses because of the narrow fore-aft width of the beam and will receive only limited amounts of pulse energy because of the short pulses. Animals close to the ship (where the beam is narrowest) are especially unlikely to be ensonified for more than one 15 ms pulse (or two pulses if in the overlap area). Similarly, Kremser *et al.*
(2005)noted that the probability of a cetacean swimming through the area of exposure when an MBB sonar emits a pulse is small. The animal would have to pass the transducer at close range and be swimming at speeds similar to the vessel in order to be subjected to sound levels that could cause TTS. Navy sonars that have been linked to avoidance reactions and stranding of cetaceans
(1)generally have a longer pulse duration than the Simrad EM120, and
(2)are often directed close to horizontally vs. downward for the Simrad EM120. The area of possible influence of the Simrad EM120 is much smaller-a narrow band below the source vessel. The duration of exposure for a given marine mammal can be much longer for a Navy sonar. Because of the unlikelihood of an animal being exposed to more than one or two pulses and the low energy the animal would most likely be exposed to due to the short pulses, NMFS does not expect the operation of the MBB sonar to result in the harassment of any marine mammals. Proposed Monitoring and Mitigation Measures Monitoring L-DEO proposes to sponsor marine mammal monitoring of its seismic program, in order to implement the planned mitigation measures and to satisfy the requirements of the IHA. The monitoring work described here has been planned as a self-contained project independent of any other related monitoring projects that may be occurring simultaneously in the same regions. L-DEO is prepared to discuss coordination of its monitoring program with any related work that might be done by other groups insofar as this is practical and desirable. Vessel Based Monitoring Vessel-based marine mammal observers
(MMOs)will watch for marine mammals and turtles near the seismic source vessel during all daytime airgun operations and during any start ups of the airguns at night. Airgun operations will be suspended when marine mammals or turtles are observed within, or about to enter, designated safety radii where there is concern about effects on hearing or other physical effects. MMOs also will watch for marine mammals and turtles near the seismic vessel for at least 30 min prior to the planned start of airgun operations after an extended shut down of the airguns. When feasible, observations will also be made during daytime periods without seismic operations (e.g., during transits). During seismic operations in the Gulf of Mexico, five observers will be based aboard the vessel. MMOs will be appointed by L-DEO with NMFS concurrence. At least one MMO, and when practical two MMOs, will watch for marine mammals and turtles near the seismic vessel during ongoing daytime operations and nighttime start ups of the airguns. Use of two simultaneous observers will increase the proportion of the animals present near the source vessel that are detected. MMO(s) will be on duty in shifts of duration no longer than 4 h. The crew will also be instructed to assist in detecting marine mammals and turtles and implementing mitigation requirements (if practical). Before the start of the seismic survey the crew will be given additional instruction in how to do so. The *Langseth* is a suitable platform for marine mammal and turtle observations. When stationed on the observation platform, the eye level will be approximately 17.8 m (58.4 ft) above sea level, and the observer will have a good view around the entire vessel. However, neither the actual bow of the vessel nor the stern will be visible from the observation platform, although it will be possible to see the airguns. To monitor the areas immediately at the bow and stern of the vessel, two video cameras will be installed at the bow (one on the starboard and one on the port side), and a wide-angle camera will be installed at the stern. Real-time footage from these cameras will be played on the observation platform, so that the MMO(s) are able to monitor those areas. In addition a high-power video camera will be mounted on the observation platform to assist with species identification. During daytime, the MMO(s) will scan the area around the vessel systematically with reticle binoculars (e.g., 7 50 Fujinon), Big-eye binoculars (25 150), and with the naked eye. At night, Night Vision Devices
(NVDs)will be available (ITT F500 Series Generation 3 binocular-image intensifier or equivalent), when required. Laser rangefinding binoculars (Leica LRF 1200 laser rangefinder or equivalent) will be available to assist with distance estimation. Those are useful in training observers to estimate distances visually, but are generally not useful in measuring distances to animals directly. MMOs will not be on duty during ongoing seismic operations at night. At night, bridge personnel will watch for marine mammals and turtles (insofar as practical at night) and will call for the airguns to be shut down if marine mammals or turtles are observed in or about to enter the safety radii. If the airguns are started up at night, two MMOs will watch for marine mammals and turtles near the source vessel for 30 min prior to start up of the airguns using NVDs, if the proper conditions for nighttime start up exist (see Mitigation below). The vessel-based monitoring will provide data to estimate the numbers of marine mammals exposed to various received sound levels, to document any apparent disturbance reactions or lack thereof, and thus to estimate the numbers of mammals potentially “taken” by harassment. It will also provide the information needed in order to power down or shut down the airguns at times when mammals and turtles are present in or near the safety radii. When a sighting is made, the following information about the sighting will be recorded: 1. Species, group size, age/size/sex categories (if determinable), behavior when first sighted and after initial sighting, heading (if consistent), bearing and distance from seismic vessel, sighting cue, apparent reaction to the airguns or vessel (e.g., none, avoidance, approach, paralleling, etc.), and behavioral pace. 2. Time, location, heading, speed, activity of the vessel, sea state, visibility, and sun glare. The data listed under
(2)will also be recorded at the start and end of each observation watch, and during a watch whenever there is a change in one or more of the variables. All observations and power-downs or shut downs will be recorded in a standardized format. Data will be entered into a custom database using a notebook computer. The accuracy of the data entry will be verified by computerized validity data checks as the data are entered and by subsequent manual checking of the database. These procedures will allow initial summaries of data to be prepared during and shortly after the field program, and will facilitate transfer of the data to statistical, graphical, or other programs for further processing and archiving. Results from the vessel-based observations will provide: 1. The basis for real-time mitigation (airgun power-down or shut down). 2. Information needed to estimate the number of marine mammals potentially taken by harassment, which must be reported to NMFS. 3. Data on the occurrence, distribution, and activities of marine mammals and turtles in the area where the seismic study is conducted. 4. Information to compare the distance and distribution of marine mammals and turtles relative to the source vessel at times with and without seismic activity. 5. Data on the behavior and movement patterns of marine mammals and turtles seen at times with and without seismic activity. Passive Acoustic Monitoring Passive acoustic monitoring will take place to complement the visual monitoring program. Visual monitoring typically is less effective during periods of bad weather or at night, and even with good visibility, is unable to detect marine mammals when they are below the surface or beyond visual range. Acoustical monitoring can be used in addition to visual observations to improve detection, identification, localization, and tracking of cetaceans. The acoustic monitoring will serve to alert visual observers when vocalizing cetaceans are detected. It will be monitored in real time so that the visual observers can be advised when cetaceans are detected. SEAMAP (Houston, TX) will be used as the primary acoustic monitoring system. This system was also used during previous L-DEO seismic cruises (e.g., Smultea *et al.* , 2004, 2005; Holst *et al.* , 2004a,b). The PAM system consists of hardware (i.e., the hydrophone) and software. The “wet end” of the SEAMAP system consists of a low-noise, towed hydrophone array that is connected to the vessel by a “hairy” faired cable. The array will be deployed from a winch located on the back deck. A deck cable will connect from the winch to the main computer lab where the acoustic station and signal conditioning and processing system will be located. The lead-in from the hydrophone array is approximately 400 m (1312 ft) long, and the active part of the hydrophone array is approximately 56 m (184 ft) long. The hydrophone array is typically towed at depths of less than 20 m or 66 ft. The acoustical array will be monitored 24 hour per day while at the seismic survey area during airgun operations and during most periods when airguns are not operating. One MMO will monitor the acoustic detection system at any one time, by listening to the signals from two channels via headphones and/or speakers and watching the real-time spectrographic display for frequency ranges produced by cetaceans. MMOs monitoring the acoustical data will be on shift from 1-6 h. All MMOs are expected to rotate through the PAM position, although the most experienced with acoustics will be on PAM duty more frequently. When a vocalization is detected, the acoustic MMO will contact the visual MMO immediately (so a power-down or shut down can be initiated, if required), and the information regarding the call will be entered into a database. The data to be entered include an acoustic encounter identification number, whether it was linked with a visual sighting, GMT date, GMT time when first and last heard and whenever any additional information was recorded, GPS position and water depth when first detected, species or species group (e.g., unidentified dolphin, sperm whale), types and nature of sounds heard (e.g., clicks, continuous, sporadic, whistles, creaks, burst pulses, strength of signal, etc.), and any other notable information. The acoustic detection can also be recorded onto the hard-drive for further analysis. Mitigation For the proposed study in the northern Gulf of Mexico, L-DEO will deploy an energy source of up to 36 airguns (6600 in 3 ). The airguns comprising the array will be spread out horizontally, so that the energy will be directed mostly downward. The directional nature of the array to be used in this project is an important mitigating factor. This directionality will result in reduced sound levels at any given horizontal distance than would be expected at that distance if the source were omnidirectional with the stated nominal source level. Localized and temporally-variable areas of concentrated feeding or of special significance for marine mammals may occur within or near the planned area of operations during the season of operations. However, L-DEO will avoid conducting the proposed activities near important concentrations of marine mammals insofar as these can be identified in advance from other sources of information, or during the cruise. Safety Radii As noted earlier (Table 2), received sound levels were modeled by L-DEO for various configurations of the 36-airgun array in relation to distance and direction from the airguns, and for a single and 2 GI guns. Correction factors based on empirical measurements were applied to estimate safety radii in shallow and intermediate-depth water. The distances from the airguns where sound levels of 190, 180, and 160 dB re 1 μPa
(rms)are estimated to be received are shown Table 2. Also, the safety radii for a single (40 in3) airgun are given, as that source will be in operation when the 36-airgun array is powered down. Airguns will be powered down (or shut down if necessary) immediately when marine mammals or turtles are detected within or about to enter the appropriate radius: 180 dB
(rms)for cetaceans and turtles, and 190 dB
(rms)for pinnipeds, in the very unlikely event that pinnipeds are encountered. Mitigation During Operations Mitigation measures that will be required will include
(1)speed or course alteration, provided that doing so will not compromise operational safety requirements,
(2)power-down procedures,
(3)shut-down procedures,
(4)special shut-down procedures for any endangered baleen whales,
(5)ramp-up procedures,
(6)avoidance of areas with concentrations of marine mammal, and
(7)shut down and notification of NMFS if an injured or dead marine mammal is found and is judged likely to have resulted from the operation of the airguns. *Speed or Course Alteration* - If a marine mammal or sea turtle is detected outside the safety radius and, based on its position and the relative motion, is likely to enter the safety radius, the vessel's speed and/or direct course may be changed. This would be done if practicable while minimizing the effect to the planned science objectives. The activities and movements of the marine mammal or sea turtle (relative to the seismic vessel) will be closely monitored to determine whether the animal is approaching the applicable safety radius. If the animal appears likely to enter the safety radius, further mitigative actions will be taken, i.e., either further course alterations or a power-down or shut down of the airguns. *Power-down Procedures* - A power-down involves decreasing the number of airguns in use such that the radius of the 180-dB (or 190-dB) zone is decreased to the extent that marine mammals or turtles are no longer in or about to enter the safety zone. A power-down may also occur when the vessel is moving from one seismic line to another (i.e., during a turn). During a power-down, one airgun will be operated. The continued operation of one airgun is intended to alert marine mammals and turtles to the presence of the seismic vessel in the area. In contrast, a shut down occurs when all airgun activity is suspended. If a marine mammal or turtle is detected outside the safety zone but is likely to enter the safety radius, and if the vessel's speed and/or course cannot be changed to avoid having the animal enter the safety radius, the airguns will be powered down before the animal is within the safety radius. Likewise, if a mammal or turtle is already within the safety zone when first detected, the airguns will be powered down immediately. During a power-down of the airgun array, at least one airgun (e.g., 40 in 3 ) will be operated. If a marine mammal or turtle is detected within or near the smaller safety radius around that single airgun (Table 2), all airguns will be shut down (see next subsection). Following a power-down, airgun activity will not resume until the marine mammal or turtle has cleared the safety zone. The animal will be considered to have cleared the safety zone if it:
(1)is visually observed to have left the safety zone; or,
(2)has not been seen within the zone for 15 min in the case of small odontocetes and pinnipeds; or,
(3)has not been seen within the zone for 30 min in the case of mysticetes and large odontocetes, including sperm, pygmy sperm, dwarf sperm, and beaked whales; or,
(4)the vessel has moved outside the safety zone for turtles. During airgun operations following a power-down whose duration has exceeded specified limits, the airgun array will be ramped up gradually. Ramp-up procedures are described below. *Shut-down Procedures* - During a power-down, the operating airgun will be shut down if a marine mammal or turtle approaches within the modeled safety radius for the then-operating source, typically a single 40 in 3 gun or a GI gun (Table 2). If a marine mammal or turtle is detected within or about to enter the appropriate safety radius around the small source in use during a power-down, airgun operations will be entirely shut down. Airgun activity will not resume until the animal has cleared the safety zone, or until the MMO is confident that the marine mammal or turtle has left the vicinity of the vessel. Criteria for judging that the animal has cleared the safety zone will be as described in the preceding subsection. *Special Shut-down Provision for Highly Endangered Mysticetes* - The airguns will be shut down (not just powered down) if an endangered mysticete is sighted anywhere near the vessel, even if the whale is located outside the safety radius. In this cruise, this provision would apply in the unlikely event of sighting any of the following whales: the North Atlantic right whale; the humpback whale; the sei whale; the fin whale; or the blue whale. This measure is planned because of the assumed greater effects of seismic surveys on mysticetes in general (as compared with other marine mammals). *Ramp-up Procedures* - A ramp-up procedure will be followed when the airgun array begins operating after a specified-duration without airgun operations. It is proposed that, for the present cruise, this period would be approximately 10 min. This duration is based on provisions during previous L-DEO surveys and on the approximately 180-dB radius for the 4-string array in deep water in relation to the planned speed of the *Langseth* while shooting. Ramp up will begin with the smallest gun in the array. Airguns will be added in a sequence such that the source level of the array will increase in steps not exceeding approximately 6 dB per 5-min period over a total duration of 20-30 min. During ramp up, the safety zone for the full airgun array to be used will be maintained. If the complete safety radius has not been visible for at least 30 min prior to the start of operations in either daylight or nighttime, ramp up will not commence unless at least one airgun has been operating during the interruption of seismic survey operations. That airgun will have a source level of more than 180 dB re 1 μPa . m (rms). It is likely that the airgun array will not be ramped up from a complete shut down at night or in thick fog (the array will definitely not be ramped up from a complete shut down at night in shallow water), because the outer part of the safety zone for the array will not be visible during those conditions. If one airgun has operated during a power-down period, ramp up to full power will be permissible at night or in poor visibility, on the assumption that marine mammals will be alerted to the approaching seismic vessel by the sounds from the single airgun and could move away if they choose. Ramp up of the airguns will not be initiated if a sea turtle or marine mammal is sighted within or near the applicable safety radii during the day or close to the vessel at night. *Avoidance of Areas with Concentrations of Marine Mammals* - Beaked whales may be highly sensitive to sounds produced by airguns, based mainly on what is known about their responses to other sound sources. Beaked whales tend to concentrate in continental slope areas, and especially in areas where there are submarine canyons on the slope. Therefore, L DEO will, if possible, avoid airgun operations over or near submarine canyons within the present study area. Also, if concentrations of beaked whales are observed at the slope site just prior to or during the airgun operations there, those operations will be moved to another location along the slope based on recommendations by the lead MMO aboard the *Langseth* . Furthermore, any areas where concentrations of sperm whales are known to be present will be avoided if possible. *Shutdown if Injured or Dead Whale is Found* - In the unanticipated event that any cases of marine mammal injury or mortality are found and are judged likely to have resulted from these activities, L-DEO will cease operating seismic airguns and report the incident to the Office of Protected Resources, NMFS immediately. Reporting L-DEO will provide brief field reports on the progress of the project on a weekly basis. A report will be submitted to NMFS within 90 days after the end of the cruise. The report will describe the operations that were conducted and the marine mammals and turtles that were detected near the operations. The report will be submitted to NMFS, providing full documentation of methods, results, and interpretation pertaining to all monitoring. The 90-day report will summarize the dates and locations of seismic operations, and all marine mammal and turtle sightings (dates, times, locations, activities, associated seismic survey activities). The report will also include estimates of the amount and nature of potential “take” of marine mammals by harassment or in other ways. Estimated Take by Incidental Harassment Because of the mitigation measures that will be required and the likelihood that some cetaceans will avoid the area around the operating airguns of their own accord, NMFS does not expect any marine mammals to approach the sound source close enough to be injured (Level A harassment). All anticipated takes would be “takes by Level B harassment”, as described previously, involving temporary behavioral modifications or low level physiological effects. Estimates of the numbers of marine mammals that might be affected during the proposed seismic program in the northern Gulf of Mexico are based on consideration of the number of marine mammals that might be disturbed appreciably by approximately 1420 km (767 nm) of seismic surveys during the Gulf of Mexico program. The numbers of animals estimated below do not take into consideration the implementation of mitigation measures and, therefore, probably overestimate the take to some degree. These estimates are calculated using density estimates of marine mammals and the total area around the source vessel that is ensonified to 160 dB or more (based on the calculated safety radii, discussed previously), the received sound level at which NMFS estimates marine mammals are behaviorally disturbed to an extent that rises to Level B Harassment. The basis for estimating the densities of marine mammals in the proposed study area is discussed in section VII of L-DEO's application and the estimates are listed in Table 3, in the same section. The potential number of different individuals that might be exposed to received levels 160 dB re 1 μPa
(rms)was calculated for each of the three water depth categories (<100 m or <328 ft, 100-1000 m or 328-3281 ft, and >1000 m or >3281 ft) by multiplying the expected species density, either “mean” (i.e., best estimate) or “maximum”, for a particular water depth, times the anticipated minimum area to be ensonified during operations with each airgun array to be used in each water depth category. The area expected to be ensonified was determined by entering the planned survey lines (including turns) into a MapInfo Geographic Information System (GIS), using the GIS to identify the relevant areas by “drawing” the applicable 160 dB buffer around each seismic line (depending on the water depth and array to be used), and then calculating the total area within the buffers. Areas where overlap occurred (due to closely spaced survey lines or repeat passes) were included only once to determine the minimum area expected to be ensonified. Due to the spiral pattern of the calibration survey, and the fact that shots from each of the three subsets (1-string, 2-string, and 4-string) of the 36-airgun array will be fired in sequence 30 s apart, the 4-string array was used for area calculations during the calibration phase; the GI guns were considered separately. For the seismic testing survey, the three different airgun configurations that will operate (single 40 in 3 airgun; 2-string and 4-string array) were used to determine the area ensonified. The area for both of those phases was then summed, and a contingency factor of 15 percent was added, because of the initial seismic testing/shakedown phase, for which line-km effort is unknown at this time. For the maximum estimates for oceanic species, the reported maximum densities were assumed to occur in intermediate and deep waters, and a density of zero was assumed for shallow waters. For species occurring in shallow water (as shown in Table 3), the maximum reported densities were used for intermediate and deep waters, whereas 2x the mean density was used for shallow water. Applying the approach described above, approximately 9045 km 2 would be within the 160 dB isopleth on one or more occasions. However, this approach does not allow for turnover in the mammal populations in the study area during the course of the study. This might somewhat underestimate actual numbers of individuals exposed, although the conservative distances used to calculate the area may offset this. In addition, the approach assumes that no cetaceans move away or toward in response to increasing sound levels prior to the time the levels reach 160 dB. Another way of interpreting the estimates that follow is that they represent the number of individuals that are expected (in the absence of a seismic program) to occur in the waters that will be exposed to 160 dB re 1 μPa (rms). To determine the mean number of times an individual might be exposed during the survey, the maximum area ensonified by sounds 160 dB during the survey was used. This area was determined by GIS, as described above, but instead of including all overlapping areas only once, the overlapping segments and areas with repeat coverage were added together. This maximum area was then multiplied by the appropriate species densities to determine the total number of exposures during the survey. The total number of exposures to sound levels 160 dB was then divided by the total number of individuals for each species. The mean number of times an individual may be exposed to levels 160 dB during the survey range from 3x (for two shallow-water species) to 4x. The “best estimate” of the number of individual marine mammals that might be exposed, absent any mitigation measures, to seismic sounds with received levels 160 dB re 1 μPa
(rms)is 3770 (Table 3). That total includes 22 endangered sperm whales, 25 beaked whales, and one Bryde's whale (Table 3). Pantropical spotted dolphins, Atlantic spotted dolphins, and bottlenose dolphins are expected to be the most common species in the study area; the best estimates for those species, absent any mitigation, are 1282, 876, and 773, respectively (Table 3). Estimates for other species are lower. The “Maximum Estimate” column in Table 3 shows estimates totaling 7082 individual marine mammals based on maximum densities, and taking into account an adjustment for small numbers of other species that might be encountered in the survey area, even though there were not recorded during previous surveys. These are the numbers for which “take authorization” is requested. NMFS does not expect the total number of marine mammal takes to be this high, however, it is appropriate to err on the cautious side to ensure that L-DEO is covered in the event that an unexpectedly large number of any particular species were exposed to >160 dB during the survey and, further, to ensure that this exposure would result in a negligible impact to the species or stock. Based on numbers of animals encountered during L-DEO's 2003 cruise in the Gulf of Mexico, the likelihood of the successful implementation of the required mitigation measure, and the likelihood that some animals will avoid the area around the operating airguns, NMFS believes that L-DEOs airgun calibration and seismic testing program may result in the Level B harassment of some lower number of individual marine mammals than is indicated by the “best estimates” in Table 3. These best estimates compose no more than 3.9 percent of any given species population in the northern Gulf of Mexico, and NMFS has preliminarily determined that these numbers are small relative to the population sizes in the specified geographic area (Table 3). L-DEO has asked for authorization for take of their “maximum estimate” of numbers for each species, which includes the take of two hooded seals. Though NMFS believes that take of the maximum numbers is unlikely, we still find these numbers small (up to 8.3 percent of the Fraser's dolphin population and 7.7 percent of the spinner dolphin population, but less than 5 percent the others) relative to the population sizes. Potential Effects on Habitat The proposed airgun operations will not result in any permanent impact on habitats used by marine mammals or to the food sources they utilize. The main impact issue associated with the proposed activity will be temporarily elevated noise levels and the associated direct effects on marine mammals. The actual area contacted temporarily by the bottom-moored hydrophone array will be an insignificant and very small fraction of the marine mammal habitat and the habitat of their food species in the area. The use of this equipment would result in no more than a negligible and highly localized short-term disturbance to sediments and benthic organisms. The area that might be disturbed is a very small fraction of the overall area. One of the reasons for the adoption of airguns as the standard energy source for marine seismic surveys was that, unlike explosives, they do not result in any appreciable fish kill. However, the existing body of information relating to the impacts of seismic on marine fish and invertebrate species is very limited. The potential effects of exposure to seismic on fish and invertebrates can be considered in three categories:
(1)Pathological,
(2)physiological, and
(3)behavioral. Pathological effects include lethal and sub-lethal damage to the animals, physiological effects include temporary primary and secondary stress responses, and behavioral effects refer to changes in exhibited behavior of the fish and invertebrates. The three categories are interrelated in complex ways. For example, it is possible that certain physiological and behavioral changes could potentially lead to the ultimate pathological effect on individual animals (i.e., mortality). The available information on the impacts of seismic surveys on marine fish and invertebrates provides limited insight on the effects only at the individual level. Ultimately, the most important knowledge in this area relates to how significantly seismic affects animal populations. However, the few available data suggest that there may be physical impacts on eggs and on larval, juvenile, and adult stages at very close range. Considering typical source levels associated with airgun arrays, close proximity to the source would result in exposure to high energy levels. Whereas egg and larval stages are not able to escape such exposures, juveniles and adults most likely would avoid them. In the cases of eggs and larvae, it is likely that the numbers adversely affected by such exposure would be small in relation to natural mortality. The limited data regarding physiological impacts on fish and invertebrates indicate that these impacts are short-term and are most apparent after exposure at close range. Exposure to seismic surveys may else cause changes in the distribution, migration patterns, and catchability of fish. There have been well-documented observations of fish and invertebrates exhibiting behaviors that appeared to be responses to exposure to seismic energy (i.e., startle response, change in swimming direction and speed, and change in vertical distribution), but the ultimate importance of those behaviors is unclear. Some studies indicate that such behavioral changes are very temporary, whereas others imply that fish might not resume pre-seismic behaviors or distributions for a number of days. There appears to be a great deal of inter- and intra-specific variability. In the case of finfish, three general types of behavioral responses have been identified: startle, alarm, and avoidance. The type of behavioral reaction appears to depend on many factors, including the type of behavior being exhibited before exposure, and proximity and energy level of the sound source. There is a need for more information on exactly what effects seismic sounds might have on the detailed behavior patterns of fish and invertebrates at different ranges. During the proposed study, only a small fraction of the available habitat would be ensonified at any given time, and fish and invertebrate species would be expected to return to their pre-disturbance behavior once the seismic activity ceased. The proposed seismic survey is predicted to have negligible to low physical and behavioral effects on the various life stages of fish and invertebrates, because of its short duration and 1420 km (767 nm) extent. More detailed information on studies of potential impacts of sounds on fish and invertebrates is provided in Appendix D of L-DEO's application. The effects of the planned activity on marine mammal habitats and food resources are expected to be negligible, as described above. A small minority of the marine mammals that are present near the proposed activity may be temporarily displaced as much as a few kilometers by the planned activity. Areas with concentrations of marine mammals will be avoided when specific study sites are selected immediately before the start of acoustic measurement activities in deep, intermediate, and shallow regions. In this manner, any major feeding area that might occur in the general vicinity of the project will be avoided. Therefore, the proposed activity is not expected to have any habitat-related effects that could cause significant or long-term consequences for individual marine mammals or their populations. Negligible Impact Determination NMFS has preliminarily determined, provided that the aforementioned mitigation and monitoring measures are implemented, that the impact of conducting an acoustic calibration and seismic testing program in the Gulf of Mexico may result, at worst, in a temporary modification in behavior and/or low-level physiological effects (Level B Harassment) of small numbers of certain species of marine mammals. While behavioral and avoidance reactions may be made by these species in response to the resultant noise from the airguns, these behavioral changes are expected to have a negligible impact on the affected species and stocks of marine mammals. While the number of potential incidental harassment takes will depend on the distribution and abundance of marine mammals in the area of seismic operations, the number of potential harassment takings is estimated to be relatively small in light of the population size (see Table 3). NMFS anticipates the actual take of individuals to be lower than the numbers depicted in the table, because those numbers do not reflect either the implementation of the mitigation numbers or the fact that some animals will avoid the sound at levels lower than those expected to result in harassment. Additionally, mitigation measures requires that the *Langseth* avoid any areas where marine mammals are concentrated. In addition, no take by death and/or serious injury is anticipated, and the potential for temporary or permanent hearing impairment will be avoided through the incorporation of the required mitigation measures described in this document. This determination is supported by
(1)the likelihood that, given sufficient notice through slow ship speed and ramp-up of the seismic array, marine mammals are expected to move away from a noise source that it is annoying prior to its becoming potentially injurious;
(2)TTS is unlikely to occur, especially in odontocetes, until levels above 180 dB re 1 μPa are reached;
(3)the fact that injurious levels of sound are only likely very close to the vessel; and
(4)the likelihood that marine mammal detection ability by trained observers is close to 100 percent during daytime (in good weather) and remains high at night close to the vessel. Endangered Species Act Under section 7 of the ESA, the National Science Foundation
(NSF)has begun consultation on this proposed seismic survey. NMFS will also consult on the issuance of an IHA under section 101(a)(5)(D) of the MMPA for this activity. Consultation will be concluded prior to a determination on the issuance of an IHA. National Environmental Policy Act
(NEPA)In 2003, NSF prepared an Environmental Assessment
(EA)for a marine seismic survey by the R/V *Maurice Ewing* in the Northern Gulf of Mexico. This EA addressed the potential effects of a different combination of airgun arrays, but with a higher total output (20 airguns, total volume 8580 in3) being operated in the same part of the ocean as is proposed for the *Langseth* in this application. NMFS will either adopt NSF's EA or prepare its own supplemental NEPA document before making a determination on the issuance of an IHA. NSF's EA has been posted on NMFS' website. Preliminary Conclusions Based on the preceding information, and provided that the proposed mitigation and monitoring are incorporated, NMFS has preliminarily concluded that the proposed activity will incidentally take, by Level B harassment only, small numbers of marine mammals. NMFS has further preliminarily determined that the proposed activity will have a negligible impact on the affected species or stocks of marine mammals. Proposed Authorization NMFS proposes to issue an IHA to L-DEO for an acoustic calibration and seismic testing program in the northern Gulf of Mexico in Fall, 2006 provided the previously mentioned mitigation, monitoring, and reporting requirements are incorporated. Dated: September 27, 2006. James H. Lecky, Director, Office of Protected Resources, National Marine Fisheries Service. [FR Doc. E6-16412 Filed 10-4-06; 8:45 am] BILLING CODE 3510-22-S DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration Publication of North American Datum of 1983 State Plane Coordinates in Feet in Idaho AGENCY: National Geodetic Survey (NGS), National Ocean Service (NOS), National Oceanic and Atmospheric Administration, Department of Commerce ACTION: Notice. SUMMARY: The National Geodetic Survey
(NGS)will publish North American Datum of 1983 (NAD 83) State Plane Coordinate
(SPC)grid values in both meters and U.S. Survey Feet (1 ft = 1200/3937 m) in Idaho, for all well-defined geodetic survey control monuments maintained by NGS in the National Spatial Reference System
(NSRS)and computed from various geodetic positioning utilities. The adoption of this standard is implemented in accordance with NGS policy and a request from the Idaho Transportation Department, the Idaho Society of Professional Land Surveyors, and the Idaho Department of Administration GIS Coordinator. DATES: Individuals or organizations wishing to submit comments on the Publication of North American Datum of 1983 State Plan Coordinates in feet in Idaho, should do by November 6, 2006. ADDRESSES: Written comments should be sent to the attention of David Doyle, Chief Geodetic Surveyor, Office of the National Geodetic Survey, National Ocean Service (N/NGS2), 1315 East-West Highway, Silver Spring, MD, 20910; fax 301-7313-4324, or via e-mail *Dave.Doyle@noaa.gov.* FOR FURTHER INFORMATION CONTACT: Requests for additional information should be directed to David Doyle, Chief Geodetic Surveyor, National Geodetic Survey (N/NGS2), 1315 East-West Highway, Silver Spring, MD, 20910; Phone:
(301)713-3178. SUPPLEMENTARY INFORMATION: Abstract In 1991, NGS adopted a policy that defines the conditions under which NAD 83 State Plane Coordinates
(SPCs)would be published in feet in addition to meters. As outlined in that policy, each State or territory must adopt NAD 83 legislation (typically referenced as Codes, Laws or Statutes), which specifically defines a conversion to either U.S. Survey or International Feet as defined by the U.S. Bureau of Standards in Federal Register notice 59-5442. To date, 48 States have adopted the NAD 83 legislation however, for various reasons, only 33 included a specific definition of the relationship between meters and feet. This lack of uniformity has led to confusion and misuse of SPCs as provided in various NGS products, services and tools, and created errors in mapping, charting and surveying programs in numerous States due to inconsistent coordinate conversions. Dated: September 29, 2006. David B. Zilkoski, Director, Office of National Geodetic Survey, National Ocean Service, National Oceanic and Atmospheric Administration. [FR Doc. 06-8512 Filed 10-4-06; 8:45 am]
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U.S. Code
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  • 25 CFR 292
  • 25 USC 2701-2721
  • Pub. L. 106-554
  • 25 CFR 290
  • Pub. L. 97-394
  • 25 CFR 83
  • 25 CFR 151
  • 25 CFR 533
  • 33 CFR 117
  • 5 USC 601-612
  • Pub. L. 104-121
  • 44 USC 3501-3520
  • 2 USC 1531-1538
  • 42 USC 4321-4370f
  • Pub. L. 102-587
  • 106 Stat. 5039
  • 50 CFR 635
  • 50 CFR 635.27(b)(1)(iii)
  • 50 CFR 635.27(b)(1)(vi)(A)
  • 50 CFR 635.27(b)(1)(iv)
  • 50 CFR 635.28(b)(2)
  • 50 CFR 635.5(b)(1)
  • 40 CFR 1508.27
  • 15 USC 4001-21
  • 15 CFR 325
  • Pub. L. 108-7
  • Pub. L. 109-108
  • 50 CFR 216.103
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