Unknown. Final rule; notice of public availability of final management plan/final environmental impact statement and record of decision
21,627 words·~98 min read·
/register/2006/10/12/06-8655A research copy — for the controlling text, always check the official state or federal source. Not legal advice.
--- schema: federal-register doc_type: fedreg source_file: FR-2006-10-12.xml --- 71 197 Thursday, October 12, 2006 Contents Agriculture Agriculture Department See Forest Service Army Army Department RULES Acquisition regulations: Contractor personnel deployment, 60076 06-8563 Centers Centers for Medicare & Medicaid Services NOTICES Privacy Act; systems of records, 60153-60157 E6-16852 Coast Guard Coast Guard RULES Organization, functions, and authority delegations: Atlantic Area Command;
Activities Europe operational and administrative control Correction, 60066-60067 E6-16904 Regattas and marine parades: Red Bull Flugtag Baltimore, 60064-60066 E6-16907 PROPOSED RULES Ports and waterways safety; regulated navigation areas, safety zones, security zones, etc.: Great Lakes; Coast Guard water training areas, 60094-60095 E6-16903 Commerce Commerce Department See International Trade Administration See National Oceanic and Atmospheric Administration Corporation Corporation for National and Community Service NOTICES Agency information collection activities; proposals, submissions, and approvals, 60110-60112 E6-16834 E6-16837 E6-16839 Defense Defense Department See Army Department PROPOSED RULES Personnel, military and civilian:
Organizations seeking to represent or organize Armed Forces members in negotiation or collective bargaining; policies, 60092-60094 E6-16926 NOTICES Civilian health and medical program of uniformed services (CHAMPUS): TRICARE program— Diagnosis related group updates; 2007 FY rates and weights, 60112-60114 06-8624 Mental health rate updates (2007 FY), 60114-60116 06-8628 Meetings: Defense Advisory Board, 60116-60120 E6-16898 Privacy Act; computer matching programs, 60120-60121 06-8627 Privacy Act; systems of records, 60121-60122 E6-16899 Senior Executive Service Performance Review Board; membership, 60122-60123 06-8625 Education Education Department NOTICES Grants and cooperative agreements; availability, etc.:
Postsecondary education— Undergraduate International Studies and Foreign Language Program, 60123-60126 E6-16932 Energy Energy Department See Southwestern Power Administration EPA Environmental Protection Agency PROPOSED RULES Air quality implementation plans; approval and promulgation; various States: New York, 60098-60102 E6-16931 NOTICES Grants and cooperative agreements; availability, etc.: Compliance Assistance Centers; candidates for development, 60144-60145 E6-16927 Reports and guidance documents; availability, etc.:
Carcinogenicity of ethylene oxide; evaluation, 60143-60144 E6-16921 Hazardous chemicals; acute exposure guideline levels; values and technical support documents, 60141-60143 E6-16908 Toxic and hazardous substances control: Integrated Risk Information System— Dichlorobenzenes; toxicological review, 60139-60141 E6-16925 Water supply: Public water system supervision program— Utah, 60145-60146 E6-16929 FAA Federal Aviation Administration PROPOSED RULES Airworthiness directives: Airbus, 60087-60092 E6-16880 E6-16882 Bombardier, 60083-60085 E6-16881 Fokker, 60085-60087 E6-16894 McDonnell Douglas, 60080-60083 E6-16891 NOTICES Agency information collection activities; proposals, submissions, and approvals, 60223-60224 06-8616 Environmental statements; availability, etc.:
Wayne County Airport, MI; runway; hearing, 60225-60226 06-8615 Grants and cooperative agreements; availability, etc.: Runway Incursion Information Evaluation Program, 60226-60228 06-8619 Meetings: Aviation Weather Technology Transfer Board; user input, 60224-60225 06-8614 RTCA, Inc., 60228 06-8617 FCC Federal Communications Commission RULES Radio services, special: Maritime communications; Automatic Identification Systems; equipment certification requirements; reconsideration petition denied, 60075-60076 E6-16844 Maritime communications;
Automatic Identification Systems; station assignments, 60067-60075 06-8655 PROPOSED RULES Radio services, special: Maritime communications; Automatic Identification Systems; channels designation for exclusive use, etc., 60102-60106 E6-16832 NOTICES Agency information collection activities; proposals, submissions, and approvals, 60146 E6-16935 Federal Highway Federal Highway Administration NOTICES Environmental statements; notice of intent: Billings County, ND, 60228-60229 E6-16887 FMC Federal Maritime Commission NOTICES Agreements filed, etc., 60147 E6-16914 Ocean transportation intermediary licenses:
A&C Import Export Services, Inc., et al., 60147 E6-16890 Customs Brokers International, et al., 60147 E6-16918 Raylink Shipping Inc. et al., 60147-60148 E6-16916 Wastaki Freight International, Inc., 60148 E6-16917 Federal Railroad Federal Railroad Administration PROPOSED RULES Railroad operating rules and practices: Operational tests and inspections program; equipment, switches, and derails handling, 60372-60412 06-8568 NOTICES Agency information collection activities; proposals, submissions, and approvals, 60229-60230 E6-16835 Federal Retirement Federal Retirement Thrift Investment Board NOTICES Meetings;
Sunshine Act, 60148 06-8650 FTC Federal Trade Commission NOTICES Prohibited trade practices: Boeing Co. et al., 60148-60152 E6-16862 Fish Fish and Wildlife Service RULES Endangered and threatened species: Critical habitat designations— Perdido Key beach mouse, etc., 60238-60370 06-8481 PROPOSED RULES Alaska National Interest Lands Conservation Act; Title VIII implementation (subsistence priority): Federal Subsistence Regional Advisory Councils; membership qualifications, 60095-60098 06-8594 Food Food and Drug Administration NOTICES Agency information collection activities; proposals, submissions, and approvals, 60157-60158 E6-16840 Reports and guidance documents; availability, etc.:
Pharmaceutical production; out-of-specification test results investigation, 60158-60159 E6-16838 Forest Forest Service PROPOSED RULES Alaska National Interest Lands Conservation Act; Title VIII implementation (subsistence priority): Federal Subsistence Regional Advisory Councils; membership qualifications, 60095-60098 06-8594 NOTICES Meetings: Land Between the Lakes Advisory Board, 60107 E6-16879 Health Health and Human Services Department See Centers for Medicare & Medicaid Services See Food and Drug Administration See National Institutes of Health NOTICES Meetings:
American Health Information Community, 60152 06-8620 Vital and Health Statistics National Committee, 60152-60153 06-8621 Homeland Homeland Security Department See Coast Guard NOTICES Agency information collection activities; proposals, submissions, and approvals, 60160-60161 E6-16919 Housing Housing and Urban Development Department NOTICES Agency information collection activities; proposals, submissions, and approvals, E6-16859 60161-60163 E6-16900 E6-16902 Grant and cooperative agreement awards:
Tribal Colleges and Universities Program, 60163 E6-16856 Organization, functions, and authority delegations: Assistant Secretary for Housing-Federal Housing Commissioner, 60173-60184 E6-16861 E6-16863 Assistant Secretary for Housing-Federal Housing Commissioner et al., 60169-60173 E6-16857 Deputy Assistant Secretary for Finance and Budget Office, 60165-60168 E6-16901 General Deputy Assistant Secretary for Housing-Deputy Federal Housing Commissioner et al., 60163-60165 E6-16896 HUD officials in HUD offices other than Housing Office, et al., 60168 E6-16893 Interior Interior Department See Fish and Wildlife Service See Land Management Bureau See National Park Service International International Trade Administration NOTICES Meetings:
European Union Metric Labeling Directive; public forum, 60107 E6-16930 Justice Justice Department NOTICES Pollution control; consent judgments: E.I Du Pont De Nemours & Co., Inc., et al., 60193-60194 06-8631 Land Land Management Bureau NOTICES Agency information collection activities; proposals, submissions, and approvals, 60185 06-8632 Meetings: Resource Advisory Councils— Central Montana, 60185-60186 E6-16877 Western Montana, 60186 E6-16884 Oil and gas leases: Michigan, 60186 E6-16889 Survey plat filings:
Montana, 60186-60187 E6-16885 E6-16886 Withdrawal and reservation of lands: California, 60187-60188 E6-16842 Maritime Maritime Administration NOTICES Agency information collection activities; proposals, submissions, and approvals, 60230 E6-16906 NASA National Aeronautics and Space Administration NOTICES Agency information collection activities; proposals, submissions, and approvals, E6-16854 60194-60195 E6-16855 National Highway National Highway Traffic Safety Administration NOTICES Motor vehicle safety standards; exemption petitions, etc.:
Michelin North America, Inc., 60230-60231 E6-16836 NIH National Institutes of Health NOTICES Meetings: Genes and Environment Initiative; Exposure Biology Program, 60159-60160 E6-16858 NOAA National Oceanic and Atmospheric Administration RULES Fishery conservation and management: Alaska; fisheries of Exclusive Economic Zone— Atka mackerel, 60077-60078 06-8637 Caribbean, Gulf, and South Atlantic fisheries— Gulf of Mexico reef fish, 60076-60077 E6-16934 Fishery conservation management:
Alaska; fisheries of Exclusive Economic Zone— Atka mackerel, 60078-60079 06-8636 Groundfish, 60078 06-8638 Ocean and coastal resource management: Marine sanctuaries— Gray's Reef National Marine Sactuary, GA; anchoring prohibition and fishing restrictions, 60055-60064 E6-16841 NOTICES Committees; establishment, renewal, termination, etc.: Fagatele Bay National Marine Sanctuary Advisory Council, 60107-60108 06-8618 Gray's Reef National Marine Sanctuary Advisory Council, 60108 06-8635 Endangered and threatened species:
Johnson's seagrass; 5-year review, 60108-60109 E6-16933 Meetings: Gulf of Mexico Fishery Management Council, 60109 E6-16850 New England Fishery Management Council, 60109-60110 E6-16851 National Park National Park Service NOTICES Agency information collection activities; proposals, submissions, and approvals, 60188 06-8629 Environmental statements; availability, etc.: Ebey's Landing National Historical Reserve, WA, 60188-60190 06-8626 Meetings: Native American Graves Protection and Repatriation Review Committee, 60190-60191 E6-16922 Native American human remains, funerary objects; inventory, repatriation, etc.:
Saint Martin's Waynick Museum, Lacey, WA; correction, 60192-60193 E6-16920 Thomas Burke Memorial Museum, University of Washington, Seattle, WA, 60191-60192 E6-16923 E6-16924 Nuclear Nuclear Regulatory Commission NOTICES Meetings: Nuclear Waste Advisory Committee, 60196-60198 E6-16870 Reports and guidance documents; availability, etc.: Abnormal occurrence criteria; revised policy statement, 60198-60200 E6-16871 Operator manual actions; feasibility and reliability in response to fire; demonstration, 60200-60201 E6-16872 *Applications, hearings, determinations, etc.:* Southern Nuclear Operating Co., 60195-60196 E6-16868 Pipeline Pipeline and Hazardous Materials Safety Administration NOTICES Hazardous materials:
Exemption applications delayed; list, 60231-60232 06-8613 SEC Securities and Exchange Commission NOTICES Agency information collection activities; proposals, submissions, and approvals, 60201 E6-16849 Self-regulatory organizations; proposed rule changes: American Stock Exchange LLC, 60201-60203 E6-16848 Chicago Board Options Exchange, Inc., 60203-60204 E6-16853 New York Stock Exchange LLC, 60204-60220 E6-16846 E6-16888 E6-16897 SBA Small Business Administration NOTICES Disaster loan areas:
United States and U.S. Territories, 60220 E6-16869 Small business size standards: Nonmanufacturer rule; waivers— Personal computers, 60220-60221 E6-16845 Southwestern Southwestern Power Administration NOTICES Reports and guidance documents; availability, etc.: Integrated system power rates, 60126-60139 E6-16912 State State Department NOTICES Culturally significant objects imported for exhibition: Albers and Moholy-Nagy: From the Bauhaus to the New World; correction, 60221 E6-16937 Meetings:
U.S.-Chile Environmental Affairs Council et al., 60221-60222 06-8662 Senior Executive Service Performance Review Board; membership, 60222 06-8537 TVA Tennessee Valley Authority NOTICES Meetings; Sunshine Act, 60222 06-8660 Transportation Transportation Department See Federal Aviation Administration See Federal Highway Administration See Federal Railroad Administration See Maritime Administration See National Highway Traffic Safety Administration See Pipeline and Hazardous Materials Safety Administration NOTICES Aviation proceedings:
Agreements filed; weekly receipts, 60222-60223 E6-16873 Certificates of public convenience and necessity and foreign air carrier permits; weekly applications, E6-16874 60223 E6-16875 Treasury Treasury Department NOTICES Agency information collection activities; proposals, submissions, and approvals, 60232 E6-16883 Veterans Veterans Affairs Department NOTICES Privacy Act; systems of records, 60232-60235 E6-16843 Separate Parts In This Issue Part II Interior Department, Fish and Wildlife Service, 60238-60370 06-8481 Part III Transportation Department, Federal Railroad Administration, 60372-60412 06-8568 Reader Aids Consult the Reader Aids section at the end of this issue for phone numbers, online resources, finding aids, reminders, and notice of recently enacted public laws.
To subscribe to the Federal Register Table of Contents LISTSERV electronic mailing list, go to http://listserv.access.gpo.gov and select Online mailing list archives, FEDREGTOC-L, Join or leave the list (or change settings); then follow the instructions. 71 197 Thursday, October 12, 2006 Rules and Regulations DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 15 CFR Part 922 [Docket No. 031001243-6227-02] RIN 0648-AQ41 Gray's Reef National Marine Sanctuary Regulations AGENCY:
National Marine Sanctuary Program (NMSP), National Ocean Service (NOS), National Oceanic and Atmospheric Administration (NOAA), Department of Commerce (DOC). ACTION: Final rule; notice of public availability of final management plan/final environmental impact statement and record of decision. SUMMARY: The National Oceanic and Atmospheric Administration
(NOAA)is issuing a final revised management plan and revised regulations for the Gray's Reef National Marine Sanctuary (GRNMS or sanctuary). The revised regulations prohibit anchoring in the sanctuary, restrict all fishing except that conducted by rod and reel, handline, or spearfishing gear without powerheads, and requires all other forms of fishing gear to be stowed and not available for immediate use when a vessel with such gear is in the sanctuary. DATES: *Effective Date:* Pursuant to section 304(b) of the National Marine Sanctuaries Act
(NMSA)(16 U.S.C. 1434(b)), the revised designation and regulations shall take effect and become final after the close of a review period of forty-five days of continuous session of Congress beginning on October 12, 2006. Announcement of the effective date of the final regulations will be published in the **Federal Register** . ADDRESSES: Copies of the final management plan/final environmental impact statement and the record of decision are available upon request to the Gray's Reef National Marine Sanctuary, 10 Ocean Science Circle, Savannah, Georgia 31411; 912/598-2381. FOR FURTHER INFORMATION CONTACT: Greg McFall, Acting Sanctuary Superintendent, Gray's Reef National Marine Sanctuary, 10 Ocean Science Circle, Savannah, Georgia 31411; 912/598-2345. SUPPLEMENTARY INFORMATION: Introduction Pursuant to section 304(e) of the National Marine Sanctuaries Act (16 U.S.C. 1434(e)) the National Marine Sanctuary Program
(NMSP)issues a revised management plan for GRNMS. The plan includes several revisions to existing regulations and several new regulations for the sanctuary. The new regulations restrict fishing at GRNMS to use of rod and reel, handline, and spearfishing gear without powerheads, by prohibiting the injuring, catching, harvesting, or collecting of any marine organism or part thereof in the sanctuary except by these gear types. All other forms of fishing gear must be stowed when a vessel is in the sanctuary. The regulations also prohibit anchoring vessels in the sanctuary. These measures will afford better protection to the nationally significant marine resources and habitats at GRNMS. In the Draft Management Plan/Draft Environmental Impact Statement (68 FR 62033, October 31, 2003), Alternative “a” was identified as the preferred alternative for fishing, which would have prohibited spearfishing as well as all other types of fishing except with rod and reel and handline gear. However, NOAA has decided to adopt fishing alternative “c”, which continues to allow use of spearfishing gear without powerheads. While it has been effectively demonstrated in other areas that selective removal of large individual fish by spearfishing can adversely affect the reproductive viability of a given population, the sanctuary has little data on the actual level of spearfishing at GRNMS. In order to assess socioeconomic factors of spearfishing activities at the sanctuary, a focused study will be initiated to determine the level of spearfishing and other fishing activities. The sanctuary will also use the ongoing, long-term biological data collected through the Marine Resources Monitoring, Assessment, and Prediction Program (MARMAP) and diver census methods to evaluate fish populations at GRNMS. NOAA therefore defers taking action on spearfishing as was proposed in the DMP/DEIS for a period of two years while additional information is collected on this activity in GRNMS. The issue will be reviewed again with the benefit of additional socioeconomic and biological analyses. NOAA will then determine what action to take, if any, given the additional data. NOAA has also determined that establishing hook limits on rod and reel and handline gear, as described in the proposed rule and the DMP/DEIS, would complicate compliance and law enforcement. Law enforcement officials noted that the hook limitations would be extremely difficult to enforce. The preferred alternative, therefore, does not impose hook limits in the regulations. Existing regulations are revised to address placing or abandoning structures on the submerged lands; using underwater explosives or devices generating electrical current; and moving or damaging historical resources. The permit regulations for the sanctuary are revised and clarified. Prior to permit issuance, the Director of the NMSP is required to consider and make certain findings regarding, among other things, the duration of the activity and its effects; the cumulative effects; and whether it is necessary to conduct the proposed activity in the sanctuary. Permit holders are required to display a copy of the permit on board any vessel or aircraft used in the permitted activity. The final management plan details the goals and objectives and management responsibilities for the Sanctuary, as well as a series of action plans that outline marine resource protection, administration, research and monitoring, exploration, outreach and education, and performance evaluation activities that are planned for the next five years. The activities are designed to address specific issues facing the sanctuary and in doing so, help achieve the management objectives of the GRNMS and the larger mandates of the NMSP. This document provides the final regulations and the revised Designation Document for the sanctuary; and announces the availability of the final management plan and the final environmental impact statement (FMP/FEIS). Background Gray's Reef National Marine Sanctuary, which was designated on January 16, 1981 (46 FR 7942), consists of approximately 16.68 square nautical miles of ocean waters and hard bottom located 17.5 nautical miles off Sapelo Island, Georgia. It is one of the largest nearshore rocky reefs off the southeastern United States and is in a transition zone between temperate and tropical waters. Some reef fish populations and plant communities change seasonally, while others are year-round residents. Migratory fish move through the sanctuary, using the reef for food and shelter. Loggerhead sea turtles, a threatened species, use GRNMS for foraging and resting. The reef is also close to the only known calving ground for the highly endangered Northern right whale. The hard bottom habitat at the sanctuary is composed of marine sediments (mud, sand, and shells) that were deposited between 2-3,000,000 years ago. These marine sediments were consolidated into rock during subsequent glacial periods by numerous changes in sea level that repeatedly exposed and then submerged the areas of GRNMS as the coastline advanced and retreated across the continental shelf. Recent bottom mapping indicates that the area is a single rock unit. It is made of calcareous sandstone that formed as a result of the compacting marine sediments and aerial exposure. The irregularities of the bathymetry can be attributed to the easily erodable sandstone that has dissolved and pitted, creating the appearance of isolated ledges and patches of hard bottom. The exposed rock offers moderate relief (0.5 to 10 feet in height) with sandy, flat-bottomed troughs between. The series of rock ledges and sand expanses has produced a complex habitat of caves, burrows, troughs, and overhangs that provide a solid base on which temperate and tropical marine flora and fauna attach and grow. This rocky platform with its rich carpet of remarkable attached organisms is known locally as a “live bottom” habitat. The sanctuary is a small but very important part of the broad continental shelf off the southeastern coast sometimes known as the South Atlantic Bight (SAB). The SAB extends from Cape Hatteras, North Carolina to Cape Canaveral, Florida. The outer reaches are dominated by the Gulf Stream flowing northeastward. The inner area is defined by the curve of the coastline between the two capes and is dominated by tidal currents, river runoff, local winds, seasonal storms, hurricanes, and atmospheric changes. While GRNMS lies in the inner-shelf zone of the SAB—which causes great seasonal variations in temperature, salinity, and water clarity—it is also influenced by the Gulf Stream. The Gulf Stream draws deep nutrient-rich water to the region, and carries and supports many of the tropical fish species and other animals found in the sanctuary. Ocean currents transport fish and invertebrate eggs and larvae from other areas, linking the Sanctuary to reefs both north and south. GRNMS is the only protected natural reef area in the SAB. The sanctuary's area constitutes a tiny percentage of the ocean space off the coast, yet the sanctuary's value as a natural marine habitat is recognized nationally and internationally. The live bottom is a flourishing ecosystem that attracts mackerel, grouper, black sea bass, angelfish, and a variety of other fishes. GRNMS is one of the most popular recreational fishing and sport diving destinations along the Georgia coast. Sport fishing occurs year-round but intensifies in warmer months and with the migration of pelagic game fish. The sanctuary is located near an area of Georgia coastline that has experienced a dramatic increase in population. Aerial and on-water surveys indicate that visitation to GRNMS has increased significantly since 1981. With continued technological innovations such as global positioning systems (GPS), electronic fish finders, and improved watercraft design, it is likely that there will be increasing pressure on the resources of the sanctuary. With its new management plan and regulations, NOAA hopes to continue to protect GRNMS for the continued appreciation and use by the current and future generations. Because this action includes changes to the sanctuary's Designation Document, the FMP/FEIS is developed pursuant to section 304(a)(2) of the NMSA (16 U.S.C. 1434(a)(2)) consistent with, and in fulfillment of, the requirements of the National Environmental Policy Act of 1969. Revised Designation Document NOAA specifies in the Designation Document that the submerged lands at GRNMS are legally part of the sanctuary and are included in the boundary description. At the time the sanctuary was designated in 1981, Title III of the Marine Protection, Research, and Sanctuaries Act (now also known as the National Marine Sanctuaries Act) characterized national marine sanctuaries as consisting of coastal and ocean waters but did not expressly mention the submerged lands thereunder. NOAA has consistently interpreted its authority under the NMSA as extending to submerged lands, and amendments to the NMSA in 1984 (Pub. L. 98-498) clarified that submerged lands may be designated by the Secretary of Commerce as part of a national marine sanctuary (16 U.S.C. 1432(3)). Therefore, to be consistent with the NMSA, NOAA is updating the Designation Document and the boundary description, and is replacing the term “seabed” with “submerged lands.” Although certain fishing activities have been regulated at GRNMS since 1981, terms are being added to the Designation Document to authorize regulations for use of allowable fishing gear and to prohibit the possession of non-allowed gear. This allows sanctuary fishing regulations for GRNMS, recommended by the South Atlantic Fishery Management Council (SAFMC), to be issued for the sanctuary. The Designation Document is also updated to authorize regulating drilling into the submerged lands of the sanctuary; constructing, placing or abandoning material or matter; discharging or depositing material or matter outside the sanctuary that subsequently enters and injures a sanctuary resource or quality; using explosives or devices that produce electric current underwater; and moving, removing, injuring, or possessing historical resources. Language in Article 4 Section 2 providing authority for temporary emergency regulations has been revised to provide NOAA greater discretion to act in emergency situations to protect sanctuary resources on a temporary basis, and is now more consistent with the NMSA's primary objective of resource protection. Rather than show that ecosystem damage would be immediate, serious and irreversible before it could promulgate emergency regulations, NOAA must now show an actual or imminent risk of destruction, loss of, or injury to a sanctuary resource or quality. In addition, while emergency regulations must still be issued on a temporary basis, the 120-day limit has been removed. Article 6 of the Designation Document is also updated regarding the process to modify the Designation. The requirement that modifications to the Designation must be approved by the President is deleted and replaced with the requirement that modifications be approved by the Secretary of Commerce or his or her designee. This is consistent with amendments to the NMSA that were enacted after the Sanctuary was designated in 1981 and which removed Presidential approval as a requirement for designation. Revised Designation Document for the Gray's Reef National Marine Sanctuary Preamble Under the Authority of Title III of the Marine Protection, Research and Sanctuaries Act of 1972, as amended, (the Act), the waters and the submerged lands thereunder at Gray's Reef in the South Atlantic Bight off the coast of Georgia are hereby designated a National Marine Sanctuary for the purposes of:
(1)Protecting the quality of this unique and fragile ecological community;
(2)promoting scientific understanding of this live bottom ecosystem; and
(3)enhancing public awareness and wise use of this significant regional resource. Article 1. Designation and Effect The Gray's Reef National Marine Sanctuary was designated on January 16, 1981 (46 FR 7942). The Act authorizes the Secretary of Commerce to issue such regulations as are necessary to implement the designation, including managing and protecting the conservation, recreational, ecological, historical, cultural, archaeological, scientific, educational or aesthetic resources and qualities of a national marine sanctuary. Section 1 of Article 4 of this Designation Document lists activities of the type that are presently being regulated or may need to be regulated in the future, in order to protect sanctuary resources and qualities. Listing in Section 1 does not mean a type of activity is currently regulated or would be regulated in the future. If a type of activity is not listed, however, it may not be regulated except on an emergency basis, unless section 1 is amended to include the type of activity following the same procedures by which the original designation was made. Nothing in this Designation Document is intended to restrict activities that do not cause an adverse effect on the resources or qualities of the sanctuary or on sanctuary property or that do not pose a threat of harm to users of the sanctuary. Article 2. Description of the Area The sanctuary consists of an area of ocean waters and the submerged lands thereunder located 17.5 nautical miles due east of Sapelo Island, Georgia. The exact coordinates are defined by regulation (15 CFR 922.90). Article 3. Characteristics of the Area The sanctuary consists of submerged calcareous sandstone rock reefs with contiguous shallow-buried hard layer and soft sedimentary regime which supports rich and diverse marine plants, invertebrates, finfish, turtles, and occasional marine mammals in an otherwise sparsely populated expanse of ocean seabed. The area attracts multiple human uses, including recreational fishing and diving, scientific research, and educational activities. Article 4. Scope of Regulation Section 1. Activities Subject to Regulation The following activities are subject to regulation under the NMSA. Such regulation may include prohibitions to ensure the protection and management of the conservation, recreational, ecological, historical, scientific, educational, cultural, archaeological or aesthetic resources and qualities of the area. Because an activity is listed here does not mean that such activity is being or would be regulated. If an activity is listed, however, the activity can be regulated, after compliance with all applicable regulatory laws, without going through the designation procedures required by paragraphs
(a)and
(b)of section 304 of the NMSA (16 U.S.C. 1434(a) and (b)). 1. Dredging, drilling into, or otherwise altering the submerged lands of the sanctuary; 2. Within the boundary of the sanctuary, discharging or depositing any material or other matter or constructing, placing, or abandoning any structure, material or other matter; or discharging or depositing any material or other matter outside the boundary of the sanctuary that subsequently enters the sanctuary and injures a sanctuary resource or quality; 3. Vessel operations, including anchoring; 4. Injuring, catching, harvesting, or collecting any marine organism or any part thereof, living or dead, or attempting any of these activities, by any means except by use of rod and reel, and handline gear; 5. Possessing fishing gear that is not allowed to be used in the sanctuary; 6. Using explosives, or devices that produce electric charges underwater; and 7. Moving, removing, injuring, or possessing a historical resource, or attempting to move, remove, injure, or possess a historical resource. Section 2. Emergency Regulation Where necessary to prevent or minimize the destruction of, loss of, or injury to a sanctuary resource or quality; or to minimize the imminent risk of such destruction, loss or injury, any activity, including any not listed in Section 1 of this Article, is subject to immediate temporary regulation, including prohibition. Article 5. Relation to Other Regulatory Programs Section 1. Defense Activities The regulation of activities listed in Article 4 shall not prohibit any Department of Defense activity that is essential for national defense or because of emergency. Such activities shall be consistent with the regulations to the maximum extent practical. Section 2. Other Programs All applicable regulatory programs will remain in effect, and all permits, licenses and other authorizations issued pursuant thereto shall be valid within the sanctuary unless authorizing any activity prohibited by a regulation implementing Article 4. Article 6. Alteration of This Designation The terms of designation, as defined under section 304(a) of the Act, may be modified only by the procedures outlined in paragraphs
(a)and
(b)of section 304 of the Act including public hearings, consultation with interested Federal, State, and local government agencies, and the South Atlantic Fishery Management Council, review by the appropriate congressional committees, and approval by the Secretary of Commerce or designee. [End of designation document] Summary of the Regulatory Amendment The regulatory changes clarify that “submerged lands” are within the boundary and are part of the sanctuary. This updates the boundary regulation to make it consistent with the NMSA and its definition of areas of the “marine environment” that may be designated as a sanctuary. The regulations also modify the sanctuary fishing regulations that have been in effect since 1981. The original regulations prohibited the use of specific fishing gear within the sanctuary, particularly wire fish traps and bottom trawls. The new regulation prohibits the injuring, catching, harvesting, or collecting of any marine organism by any means except by rod and reel, handline, or spearfishing gear without powerheads. This establishes a clearer, more enforceable approach for the sanctuary fishing regulations than those currently in effect. Rod and reel gear is the predominant fishing gear now in use at GRNMS and continues to be allowed under the regulations. To facilitate enforcement of the gear restriction, a related regulation requires that all forms of fishing gear other than rod and reel, handline, or spearfishing gear without powerheads be stowed when vessels are in the sanctuary. The final regulations also prohibit anchoring vessels within the sanctuary. The unique bottom formations and habitats at GRNMS are vulnerable to the effects of anchoring. The documented increases of population in the region and of visitor use at GRNMS suggest that the risk from vessel anchoring will also increase and that prohibiting anchoring helps protect the live bottom habitat and the associated living marine resources that GRNMS was designated to protect. This regulation has little impact on current users of the sanctuary. Based on findings of a socioeconomic study (Ehler and Leeworthy) conducted in 2002, virtually none of the activities that occur at GRNMS require anchoring. Fishermen routinely allow their boats to drift during bottomfishing or are trolling for migratory species, and divers frequently use a “live-boat” for drift diving, due to the strong currents. There is overall support for the ban on anchoring among users surveyed during the socioeconomic study. In an emergency situation, boaters are allowed to anchor in the sanctuary and existing boundary marker buoys provide a place for a boat to moor in an emergency as well. Finally, the regulations for the issuance of permits adds a new permit category for assisting in managing the sanctuary. This authorizes the NMSP to issue a permit to the sanctuary manager and qualified individuals outside the NMSP for activities that otherwise would be prohibited, if the activities assist in sanctuary management and if they satisfy permit criteria. The permit criteria require the NMSP or the Superintendent to consider, and make certain findings regarding, factors including the duration of a proposed activity, its cumulative effects, and whether it is necessary to conduct the proposed activity in the sanctuary. A permit holder is required to display a copy of the permit in any vessel or aircraft being used in the permitted activity. The following regulatory changes are also included in this document: The term “seabed” is replaced with “submerged lands of the sanctuary” to be consistent with usage in the NMSA. The prohibition against dredging, drilling into or altering submerged lands of the sanctuary specifically includes bottom formations to call attention to one of the critical elements of the ecosystem at GRNMS. The original prohibition against constructing any structure other than a navigation aid is revised to include constructing, placing, or abandoning any structure or material on the sanctuary submerged lands. This change, among other things, prohibits activities that have been identified in the Florida Keys National Marine Sanctuary, where materials are placed on the submerged lands to create lobster habitat. The prohibition against using poisons, electric charges, explosives, or similar methods to take any marine animal not otherwise prohibited from being taken is revised to prohibit the use underwater of explosives and devices producing electric current, while the reference to poisons is removed because it is already addressed by the prohibition against discharges. Use of these items is prohibited regardless of whether marine animals are being taken. The regulation prohibiting tampering with, damaging or removing historic or cultural resources is revised to prohibit moving, removing, damaging, or possessing any sanctuary historical resource, or attempting any of these. This change better protects these resources from being removed and facilitates enforcement by prohibiting their possession. Comments and Responses During the public comment period, 144 written comments were received. Seven
(7)public hearings were also held with approximately 125 individuals in attendance. Comment during the public hearings was derived out of round table discussions and recorded on flip charts at each of the small group tables. Written and verbal comments were compiled and grouped by general topics into a 10-page summary, which was reviewed and considered by the GRNMS Advisory Council on January 28, 2004. Substantive comments received are summarized below, followed by NOAA's response. Multiple but similar comments have been treated as one comment for purposes of response. Comments beyond the scope of the proposed action are neither summarized nor responded to. *Comment 1:* Many members of the public that have an interest in spearfishing commented that spearfishing at Gray's Reef should not be prohibited as proposed in the draft plan. The sanctuary does not have specific data on the number of people who spearfish and the amount of fish they take. If spearfishing is prohibited, then all bottom fishing at the sanctuary should be prohibited too. Bottom fishing takes far more fish and leaves far more debris on the reef than spearfishing does. *Response:* Spearfishing was considered for regulation during the original 1981 GRNMS designation. No regulations, however, were adopted at that time, except the prohibition of powerheads (explosives) for spearfishing. While the number of recreational divers spearfishing at GRNMS appears to be small, spearfishing typically targets the larger individual fish among the reef-dependent species. Large fish are important to the reproductive health of species. Some fish populations are overfished or approaching overfished status. Some researchers have commented on the lack of large snapper-grouper individuals at GRNMS (Bohnsack pers. comm.). Research has shown significantly reduced populations of larger predatory fishes where spearfishing occurs (SAFMC, 1990; Bohnsack, 1982; Chapman and Kramer, 1999; Jouvenel and Pollard, 2001). Larger predators are favored targets of spearfishermen. Reduction in the larger predatory fishes can have a “top-down” effect on fish populations by allowing other fish populations to increase, altering the composition of the overall natural communities including invertebrates. Although the use of powerheads is prohibited at GRNMS, powerhead cartridges found on site indicate that this gear is still in use. Law enforcement officials have expressed concerns that some commercial spearfishing operations may be harvesting large numbers of undersized fish from the region. NOAA recognizes that while it has been effectively demonstrated in other areas that selective removal of large individual fish by spearfishing can adversely affect the reproductive viability of a given population, the sanctuary has little data on the actual level of spearfishing at GRNMS. The sanctuary will, therefore, gather additional socioeconomic information on this activity in GRNMS and review the issue again in two years. The additional socioeconomic information coupled with ongoing biological studies of fish populations will enable management to better evaluate the impact of current and potentially future levels of spearfishing at GRNMS. NOAA therefore defers taking action on spearfishing as was proposed in the draft management plan for a period of two years while additional information is collected on this activity in GRNMS. NOAA will then determine what action to take, if any, given the additional information. *Comment 2:* (U.S. Environmental Protection Agency, Region IV) The language used in the Preferred Alternative could be strengthened to expressly prohibit the use or possession of spearguns, nets, bandit gear, buoy gear, traps, pots, etc., in the GRNMS. The distinction between permitted activities and prohibited activities should be made unambiguously clear. *Response:* NOAA has determined that prohibiting specific gear types could add more complication and confusion for fishermen by lengthening the list of restricted fishing methods and gear, versus clearly identifying what gear is allowed in GRNMS. The allowable gear regulation approach was endorsed by the GRNMS Advisory Council and the SAFMC as the best approach. *Comment 3:* (South Atlantic Fishery Management Council) The SAFMC voted to support the DMP/DEIS and proposed fishing regulatory language contained in the November 2003 public hearing document. Prohibiting anchoring and the other proposed actions are consistent with the SAFMC's Essential Fish Habitat
(EFH)and EFH-Habitat Area of Particular Concern
(HAPC)designations and with the SAFMC's habitat policies. The SAFMC did, however, request that GRNMS reconsider the proposed 3-hook limit. *Response:* NOAA has adopted Alternative “c” of the proposed allowable gear regulation, to permit only rod and reel, handline, and spearfishing gear without powerheads in the sanctuary. NOAA has determined that the 3-hook limit on rod and reel and handline gear, as defined in the draft proposed rule, complicates law enforcement and compliance. Hooks vary significantly in size and identification since hooks are made by different manufactures in different countries. Uses are also varied, making compliance difficult for users and interpretation of the regulations difficult for law enforcement. Therefore, NOAA defines the gear allowance without a limit on the number of hooks. The process of developing fishing regulations for GRNMS has complied with the NMSA, including Section 304(a)(5), and the Memorandum of Understanding executed by the SAFMC, NOAA Fisheries Service, and the NMSP. *Comment 4:* (Georgia Department of Natural Resources, Coastal Resources Division, Marine Fisheries Section) Prohibiting anchoring and the other proposed actions are consistent with the SAFMC's EFH and EFH-HAPC designations and with the Council's habitat policies. The anchoring prohibition and similar marine resource action plan strategies to protect the live bottom habitat are appropriate and consistent not only with the SAFMC's EFH definitions/policies, but also with the goals and objectives of the NMSP. *Response:* See response to comment 3 above. The prohibition of anchoring is consistent with the SAFMC's EFH and EFH-HAPC designations of GRNMS, as well as the goals and objectives of the NMSP. *Comment 5:* (U.S. Navy, Commander Navy Region Southeast) The Navy requested that the document expand the statements regarding military activities to specifically indicate that the sanctuary designation did not limit or restrict ongoing or future military use for training and operations. *Response:* Existing regulations governing national defense exemptions for current activities have not changed. Current Department of Defense activities are essential for national defense and are not subject to the regulatory prohibitions. The exemption of additional activities having significant impacts will be determined in consultation between the Director and the Department of Defense. *Comment 6:* (U.S. Navy, Commander Navy Region Southeast) The Navy recommended modification of the next to last sentence in the section on Military Activities on page 53 of the FEIS to read “Military aircraft do not routinely fly below 1500 feet or within a one nautical mile radius of the Sanctuary.” *Response:* NOAA acknowledges the Navy's comment and has determined that the language as it exists in the FMP/FEIS (already published), coupled with the regulations governing national defense activities, will adequately address this concern. *Comment 7:* (U.S. Coast Guard, Commander (OLE), 7th Coast Guard District) Section 922.92(5)(ii) of the regulations states that “There shall be a rebuttable presumption that any marine organism or part thereof found in the possession of a person within the sanctuary has been collected or removed from the Sanctuary.” A “rebuttable presumption” places the burden of proving that any organism in possession of an alleged violator was actually caught in the sanctuary on the enforcement entity, something that is very difficult to do unless directly observed. Section 5
(ii)as written would be extremely difficult to enforce. The Coast Guard recommended changing this text to simply prohibit possession of any marine organism or part thereof when within the sanctuary and when in possession of any fishing gear or means except rod and reel and handline gear that is available for use. The prohibition text should also ensure that it is illegal to possess any species caught with a gear type prohibited in the sanctuary. *Response:* The U.S. Coast Guard is a key enforcement partner to NOAA in the protection of sanctuary resources and NOAA appreciates its comment to improve the regulation. The rebuttable presumption does not place any additional burden on the enforcement entity; rather it operates such that any person located inside the sanctuary and found in possession of a marine organism is presumed to have taken that organism from the sanctuary. Thus, no actual observation of a violation is required—it is presumed—and the burden is shifted to the alleged violator to provide some evidence proving the organism was in fact not taken from the sanctuary. Although the presumption can be overcome by the introduction of contrary evidence, NOAA regards the rebuttable presumption as generally useful to enforcement of the sanctuary regulations and, therefore, believes it should be retained in the final regulations. Language in the text of the allowable gear regulation addresses possession of species caught in the sanctuary with prohibited gear types. *Comment 8:* (U.S. Coast Guard, Commander (OLE), 7th Coast Guard District) Section 922.92(6) of the DMP/DEIS prohibits gear other than rod and reel and handline gear unless “stowed and not available for use.” This term is later defined as “stowed and not available for immediate use.” This disparity between prohibition and definition will cause confusion and may make this prohibition unenforceable. The definition and prohibition language should be aligned. *Response:* NOAA has corrected this typographical error in the FMP/FEIS by adding the word “immediate” in Section (6). *Comment 9:* (U.S. Coast Guard, Commander (OLE), 7th Coast Guard District) Rod and reel gear is defined in the definitions section, and the definition includes a limit on the number of hooks per line to capture baitfish and a limit on the size and type of hooks that can be used. This limitation should be removed, as it is extremely difficult to enforce. However, if this limit is retained these prohibitions should be moved from the definition section and be included under the new regulation section. This will help simplify the regulations, a key component of an enforceable regulation. *Response:* NOAA has changed the regulation. See response to comment 3 above. *Comment 10:* (U.S. Coast Guard, Commander (OLE), 7th Coast Guard District) Prior to implementing a final rule, GRNMS should coordinate with NOAA General Counsel for Enforcement and Litigation to update GRNMS' penalty schedule. The current penalty schedule was last revised in January 1997, and a proposed revision drafted in 2002 has not gone into effect. Unfortunately, the proposed revision is not adequate and does not address the proposed regulation changes in the DMP/DEIS. In addition, the majority of potential violations within GRNMS are likely to be small and perpetrated by recreational fishermen. Any penalty schedule update should reflect this. *Response:* NOAA has developed a national penalty schedule for the NMSP. Penalty schedules, however, are not established by rulemaking; they are for internal guidance and have no binding effect on the amount of a penalty that may be assessed for a violation. Rather they are intended for consistency across a national system. The NMSA remains the authority for, and the source of, penalties that NOAA may assess. *Comment 11:* The South Carolina Aquarium fully supports the increased protection proposed in the DMP/DEIS. Limits placed on spearfishing and anchoring would help to minimize damage due to human activities on Gray's Reef. *Response:* NOAA has chosen the prohibition on anchoring (alternative “a”). Regarding spearfishing, see response to comment 1 above. *Comment 12:* The Coastal Group, Georgia Chapter, Sierra Club strongly supports the two major regulatory changes in the management plan: the prohibition of dropping anchor except in an emergency and the elimination of spearfishing from the sanctuary. *Response:* NOAA has chosen the prohibition on anchoring (alternative “a”). Regarding spearfishing, see response to comment 1 above. *Comment 13:* The Center for a Sustainable Coast believes that to truly serve as a sanctuary for marine life, GRNMS must ultimately be managed as a reserve to protect all species within its bounds against fishing and any other activities that disturb natural resources. To strengthen the capacity of efforts to improve water resource management, the GRNMS Management Plan should include analysis of the relationship of watersheds, water use, and water quality with the inter-tidal and marine areas. GRNMS must work to enhance and support greater awareness about these issues, and work to build a lasting intergovernmental management structure capable of resolving the complex water issues that may impact Gray's Reef and other marine resources. *Response:* During the scoping process for the revised management plan, many comments received asked that GRNMS consider marine reserve status (no-take) for the sanctuary. As noted in the FMP/FEIS (pages 29 and 69-70), GRNMS determined that marine reserves are best addressed through our partnership with SAFMC as they continue deliberations on a network of reserves in the region. NOAA agrees that water quality is critical to the continued sustainability of the protected resources at GRNMS. Therefore an extensive water quality monitoring program has been implemented at GRNMS. Education programs, such as the Rivers to Reef module, are also bringing awareness to students and teachers. *Comment 14:* Many commenters expressed general support for increased protection of marine resources in the sanctuary and/or that NOAA adopt the preferred fishing alternative “a.” *Response:* See responses to comments 11 through 13 above. *Comment 15:* One member of the public commented that GRNMS should be managed as a “sanctuary;” and/or allow only dive activities; and/or allow only transit through the sanctuary with fishing gear stowed. *Response:* GRNMS is managed as a “national marine sanctuary,” which is defined in the NMSA as “an area of the marine environment of special national significance due to its resource or human-use values, which is designated as such to ensure its conservation and management.” As such, all uses are evaluated as to whether they are compatible with the primary objective of resource protection. Ongoing research and monitoring are conducted to support that objective. *Comment 16:* One commenter suggested that GRNMS should consider designating 25-50 percent of the sanctuary as a reserve for non-extractive uses. Protect Gray's Reef NMS as representative hard-ground live bottom habitat in the South Atlantic Bight. *Response:* See response to comment 13 above. *Comment 17:* Several members of the public commented that non-extractive diving as a compatible use at GRNMS is growing; more divers prefer recreational diving for wildlife observation and photography. Conflicts are arising due to spearfishing at GRNMS because the fish, particularly larger fish, are either killed or scared away. Most spearfishermen do not use GRNMS, but prefer other offshore sites. *Response:* See response to comment 1 above. *Comment 18:* Several members of the public asked if the proposed regulations restrict use of commonly used equipment such as downriggers and marker buoys? *Response:* The FMP/FEIS does not propose restrictions on commonly used equipment such as downriggers and marker buoys. The document specifically states on page 65: “Items that are deployed and subsequently retrieved the same day, such as fishing line and small marker buoys, are not considered ‘deposited' in the Sanctuary.” *Comment 19:* A member of the public commented that GRNMS should reduce all commercial and recreational fish harvest to “sustainable levels.” GRNMS should ban all commercial fishing and charter/head boats in order to achieve sustainable levels of harvest. *Response:* NOAA is responsible for the conservation and management of fish stocks within the Federal 200-mile limit exclusive economic zone of the Atlantic Ocean off the southeastern U.S. under the Magnuson-Stevens Fishery Conservation and Management Act. Under this mandate, sustainable levels of fish harvest are an objective for a wide range of fish species. Achieving sustainable fishing levels can be done better on a regional level well beyond the boundaries of GRNMS. However, the allowable fishing gear approach to GRNMS regulation does restrict certain types of fishing gear that have a negative impact on sustainable levels of many fish species. *Comment 20:* One member of the public commented that GRNMS should regulate fishing gear by prohibiting specific gear instead of allowing specific gear. *Response:* NOAA believes that fishing alternative “b” would not be in the best interest of the sanctuary or its users. The allowable gear approach is simple, clear, and easily understood by the fishing community and by the public generally. It means that gear identified as allowable is the only gear that may be used in the sanctuary; use of all other gear types is prohibited. This is a simpler, clearer approach than attempting to list all possible gear types that are prohibited. It also simplifies and facilitates monitoring and law enforcement, and eliminates the costs to users who develop and utilize fishing gear in the sanctuary that may have to be prohibited in the future due to damage to the resources. *Comment 21:* One commenter was concerned that all diving activities will be eliminated at GRNMS. *Response:* This plan does not propose eliminating diving at GRNMS. Although impacts on bottom resources from diving activities are a concern, GRNMS will establish a comprehensive outreach and education program to address these concerns. The revised regulations for GRNMS are very clear that only specific fishing gear is allowed and any other form of collection, harvest, or injury to marine organisms is prohibited. *Comment 22:* The National Marine Manufacturers Association has strong reservations about NMSP's proposal to prohibit anchoring in the sanctuary because there is no evidence that at any point NMSP considered the effect this proposal would have on boater safety. NMSP should formally consult with the U.S. Coast Guard
(USCG)Office of Boating Safety for recommendations on how to make NMSP's management policies consistent with proper boater safety procedures. NMMA also urges NMSP to adopt anchoring alternative “b” and establish and maintain a mooring buoy system in the appropriate places to enhance boater safety. *Response:* NOAA involved the USCG, area boaters, fishermen, and divers on many occasions in the development of the FMP/FEIS through GRNMS Advisory Council meetings, scoping, and workshops. A representative of the 7th USCG District sits on the Advisory Council, along with a recreational angler and a recreational dive operator. The USCG's comment in its formal consultation letter response on the DMP/DEIS stated that: “There are no objectionable vessel safety concerns contained within this proposal.” Regarding anchoring alternative “b,” NOAA has concluded that a mooring buoy system is not needed, in part because the proposed regulation allows for use of anchors in emergency situations. The GRNMS Advisory Council, and other users surveyed in the socioeconomic studies cited in the FMP/FEIS, also consistently advised that a mooring buoy system was not needed in the sanctuary because boaters (fishermen and divers) prefer to drift or troll. The potential negative impacts from concentrated use around mooring buoys is also a concern for the sanctuary. GRNMS will continue to monitor use in the sanctuary and may reconsider mooring buoys in the next management plan review if the sanctuary finds that they are needed. *Comment 23:* A couple members of the public commented that NOAA should install mooring buoys in the sanctuary to enhance fishing, diving and research activities if anchoring is prohibited; consider 25-30 moorings and moveable moorings to minimize the negative impacts of concentrated activities. *Response:* See response to comment 22 above. *Comment 24:* Several commenters expressed that NOAA should choose the preferred alternative “a” for anchoring. *Response:* NOAA has chosen the preferred alternative “a” for anchoring. *Comment 25:* One commenter stated that anchoring alternative “c” is not a good option because it assumes that sandy areas in GRNMS have no biological value. It makes little sense to anchor in the sandy areas away from fishing and diving locations. *Response:* NOAA acknowledges the concern about the biological importance of sandy areas in the sanctuary. Page 38 of the FMP/FEIS points out the high infaunal diversity in sandy bottom areas of the sanctuary. NOAA has chosen the preferred alternative “a” for anchoring. *Comment 26:* One member of the public commented that the prohibition on anchoring is inappropriate because there is no concrete or photographic evidence of anchor damage. *Response:* Numerous photos have documented damage from anchoring at GRNMS. Page 61 of the FMP/FEIS shows anchoring gear photographed on a live bottom area at GRNMS. Numerous studies in other locations have also definitively documented the significant damage to delicate invertebrates, corals and hard bottoms from anchoring practices. The prohibition of anchoring is not a limiting factor for visitors to be able to conduct recreational activities in GRNMS. Anchoring continues to be allowed in emergency circumstances. *Comment 27:* One member of the public commented that there is no purpose to establishing a working group to explore the concept of a marine research area because there is no such thing as a “natural process along a populated coast,” and a marine research area would have a negative impact on the fishing community. Designating a research area would open the door to closing the entire sanctuary to fishing; other live bottom areas in the region should be chosen for a research reserve instead of GRNMS. *Response:* After consideration of the public comments on the DMP/DEIS, the Advisory Council recommended that the sanctuary establish a working group to advise the Advisory Council on the development of the concept of a marine research area. The Advisory Council, with the concurrence of the sanctuary, established the Marine Research Area Concept Working Group (RAWG), which met from May 2004 until March 2005. The Working Group was comprised of representatives from education, fishing, diving, research and conservation, law enforcement, and other regional, private, State, and Federal organizations. The recommendations from the Working Group to the Advisory Council can be found in Section III under the Research and Monitoring Action Plan (RM-2). The Advisory Council deliberated on the Working Group's recommendations at its June 2005 meeting and made its recommendations to the sanctuary (also found at RM-2). NOAA has accepted the recommendations of the Advisory Council and made a decision to more formally consider the concept of a research area in the sanctuary through a public process guided by requirements of NEPA and the NMSA. *Comment 28:* Members of the public commented that GRNMS should consider an area only for research in the sanctuary; the reserve could serve as a “constant” for monitoring marine resources, and help improve information specific to Gray's Reef. *Response:* See response to Comment 27 above. The research area concept should be considered and an investigation of its benefits will move forward. *Comment 29:* Members of the public commented that GRNMS should consider a “rotational” marine research area (either geographically or temporally). *Response:* See response to comment 27 above. *Comment 30:* One member of the public noted that if the document is to follow the provisions of NEPA, it must have a List of Preparers contained within. *Response:* A full list of preparers is included in the FMP/FEIS in an appendix entitled List of Preparers. *Comment 31:* A member of the public urged GRNMS to formally incorporate a study of birds which occupy the reef as part of Goal 2 as research into the ecology of the reef. *Response:* Surveys of birds in the sanctuary have become a regular part of the monitoring program. Miscellaneous Rulemaking Requirements National Marine Sanctuaries Act Section 301(b) of the National Marine Sanctuaries Act (16 U.S.C. 1434) provides authority for comprehensive and coordinated conservation and management of national marine sanctuaries in coordination with other resource management authorities. Section 304(a)(4) of the National Marine Sanctuaries Act (16 U.S.C. 1434(a)(4)) requires that the procedures specified in section 304 for designating a national marine sanctuary be followed for modifying any term of designation. Because this action revises the sanctuary designation document ( *i.e.* , the sanctuary boundary is revised to specifically include the submerged land), NOAA must comply with the requirements of section 304. All necessary requirements have been completed. National Environmental Policy Act When changing a term of designation of a national marine sanctuary, section 304 of the NMSA (16 U.S.C. 1434) requires the preparation of a draft environmental impact statement (DEIS), as provided by the National Environmental Policy Act of 1969 (42 U.S.C. 4321 *et seq.* ) and that the DEIS be made available to the public. The DEIS, along with a draft management plan, was released on October 31, 2003 (68 FR 62033). The public comment period ended on December 31, 2003. A final environmental impact statement and final management plan were published and made available to the public on July 28, 2006. Executive Order 12866: Regulatory Impact The final rule has been determined to be not significant within the meaning of section 3(f) of Executive Order 12866 because it will not result in:
(1)An annual effect on the economy of $100 million or more or adversely affect in a material way the economy, productivity, competition, jobs, the environment, or public health and safety;
(2)A serious inconsistency or otherwise interfere with an action taken or planned by another agency;
(3)A material alteration of the budgetary impact of entitlements, grants, user fees, or loan programs or rights and obligations of such recipients; or
(4)Novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order. Executive Order 13132: Federalism Assessment NOAA has concluded that this regulatory action does not fall within the definition of “policies that have federalism implications” within the meaning of Executive Order 13132. The Sanctuary does not include State waters. Furthermore, the proposed changes will not preempt State law, but will simply complement existing State authorities. In keeping with the intent of the Executive Order, however, the NMSP consulted with the Georgia Department of Natural Resources during development of the FMP/FEIS and these regulations. Regulatory Flexibility Act The Assistant General Counsel for Legislation and Regulations of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration that the FMP/FEIS for GRNMS does not have a significant economic impact on a substantial number of small entities. We received no comment on this certification or the economic impact of the rule. While minor modifications have been made to the rule proposed, the basis for the certification has not changed. Thus, no regulatory flexibility analysis was required and none has been prepared. The factual basis for this certification follows: This final rule is associated with a FMP/FEIS that was developed for the Gray's Reef National Marine Sanctuary (GRNMS), located off Sapelo Island, Georgia. A FMP is a planning and management document that describes the objectives, policies, and activities for a sanctuary. The final rule includes:
(1)A prohibition on anchoring within the Sanctuary (except in emergencies);
(2)a revision of Sanctuary regulations to allow fishing only with rod and reel, handline gear, and spearfishing gear without powerheads; and
(3)a gear stowage requirement to facilitate enforcement. Current socioeconomic studies and on-site surveys indicate that the majority of users in GRNMS are recreational fishermen who use personal boats and rod and reel gear. There are approximately two dozen charter fishing operations along the Georgia coast that occasionally target the Sanctuary. Commercial fishing activity is negligible, as most commercial fishing gear is prohibited by existing regulations. Furthermore, nearly all users conduct their activities in a manner that complies with the final rule. Paperwork Reduction Act This proposed rule involves an existing information collection requirement currently approved by OMB (OMB approval number 0648-0141) under the Paperwork Reduction Act of 1980, 44 U.S.C. 3501 *et seq.* The proposed rule will not require any change to the currently approved OMB approval and would not result in any change in the public burden in applying for and complying with NMSP permitting requirements. The public reporting burden for these permit application requirements is estimated to average 1.00 hour per response, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. Send comments regarding this burden estimate, or any other aspect of this data collection, including suggestions for reducing the burden, to, David Bizot, National Permit Coordinator, NOAA National Marine Sanctuary Program, 1305 East-West Highway, N/ORM-6, Silver Spring, MD 20910, by e-mail to *David.Bizot@noaa.gov,* by fax to
(301)713-0404; or by e-mail to *David_Rostker@omb.eop.gov* , or fax to
(202)395-7285. The proposed revised permit regulations would require the Director of the NMSP to consider the proposed activity for which a permit application has been received. The proposed modifications to the permit procedures and criteria (15 CFR 922.113) would further refine current requirements and procedures of the general National Marine Sanctuary Program regulations (15 CFR 922.48(a) and (c)). The proposed modifications would also clarify existing requirements for permit applications found in the Office of Management and Budget approved applicant guidelines (OMB Control Number 0648-0141). The revised permit regulations would add language about: the qualifications, finances, and proposed methods of the applicant; the compatibility of the proposed method with the value of the Sanctuary and the primary objective of protection of Sanctuary resources and qualities; the necessity of the proposed activity; and the reasonably expected end value of the proposed activity. 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 Paperwork Reduction Act, unless that collection of information displays a currently valid OMB control number. List of Subjects in 15 CFR Part 922 Administrative practice and procedure, Coastal zone, Education, Environmental protection, Marine resources, Natural resources, Penalties, Recreation and recreation areas, Reporting and recordkeeping requirements, Research. (Federal Domestic Assistance Catalog Number 11.429 Marine Sanctuary Program) Dated: October 4, 2006. John H. Dunnigan, Assistant Administrator for Ocean Services and Coastal Zone Management. Accordingly, for the reasons set forth above, 15 CFR part 922 is to be amended as follows: PART 922—[AMENDED] 1. The authority citation for part 922 continues to read as follows: Authority: 16 U.S.C. 1431 *et seq.* 2. The regulations for GRNMS (15 CFR part 922, subpart I) are revised to read as follows: Subpart I—Grey's Reef National Marine Sanctuary Sec. 922.90 Boundary. 922.91 Definitions. 922.92 Prohibited or otherwise regulated activities. 922.93 Permit procedures and criteria. Subpart I—Grey's Reef National Marine Sanctuary § 922.90 Boundary. The Gray's Reef National Marine Sanctuary (Sanctuary) consists of approximately 16.68 square nautical miles of ocean waters and the submerged lands thereunder, off the coast of Georgia. The Sanctuary boundary includes all waters and submerged lands within the geodetic lines connecting the following coordinates: Datum: NAD83 Geographic Coordinate System
(1)N 31.362732 degrees W 80.921200 degrees
(2)N 31.421064 degrees W 80.921201 degrees
(3)N 31.421064 degrees W 80.828145 degrees
(4)N 31.362732 degrees W 80.828145 degrees
(5)N 31.362732 degrees W 80.921200 degrees § 922.91 Definitions. In addition to those definitions found at § 922.3, the following definitions apply to this subpart: *Handline* means fishing gear that is set and pulled by hand and consists of one vertical line to which may be attached leader lines with hooks. *Rod and reel* means a rod and reel unit that is not attached to a vessel, or, if attached, is readily removable, from which a line and attached hook(s) are deployed. The line is payed out from and retrieved on the reel manually or electrically. *Stowed and not available for immediate use* means not readily accessible for immediate use, *e.g.* , by being securely covered and lashed to a deck or bulkhead, tied down, unbaited, unloaded, partially disassembled, or stowed for transit. § 922.92 Prohibited or otherwise regulated activities.
(a)Except as may be necessary for national defense (subject to the terms and conditions of Article 5, Section 2 of the Designation Document) or to respond to an emergency threatening life, property, or the environment, or except as may be permitted by the Director in accordance with § 922.48 and § 922.93, the following activities are unlawful for any person to conduct or to cause to be conducted within the Sanctuary:
(1)Dredging, drilling into, or otherwise altering in any way the submerged lands of the Sanctuary (including bottom formations).
(2)Constructing any structure other than a navigation aid, or constructing, placing, or abandoning any structure, material, or other matter on the submerged lands of the Sanctuary.
(3)Discharging or depositing any material or other matter except:
(i)Fish or fish parts, bait, or chumming materials;
(ii)Effluent from marine sanitation devices; and
(iii)Vessel cooling water.
(4)Operating a watercraft other than in accordance with the Federal rules and regulations that would apply if there were no Sanctuary. (5)(i) Injuring, catching, harvesting, or collecting, or attempting to injure, catch, harvest, or collect, any marine organism, or any part thereof, living or dead, within the Sanctuary by any means except by use of rod and reel, handline, or spearfishing gear without powerheads.
(ii)There shall be a rebuttable presumption that any marine organism or part thereof referenced in this paragraph found in the possession of a person within the Sanctuary has been collected from the Sanctuary.
(6)Except for possessing fishing gear stowed and not available for immediate use, possessing or using within the Sanctuary any fishing gear or means except rod and reel, handline, or spearfishing gear without powerheads.
(7)Using underwater any explosives, or devices that produce electric charges underwater.
(8)Breaking, cutting, damaging, taking, or removing any bottom formation.
(9)Moving, removing, damaging, or possessing, or attempting to move, remove, damage, or possess, any Sanctuary historical resource.
(10)Anchoring any vessel in the Sanctuary, except as provided in § 922.92 when responding to an emergency threatening life, property, or the environment.
(b)All activities currently carried out by the Department of Defense within the Sanctuary are essential for the national defense and, therefore, not subject to the prohibitions in this section. The exemption of additional activities having significant impacts shall be determined in consultation between the Director and the Department of Defense. § 922.93 Permit procedures and criteria.
(a)A person may conduct an activity prohibited by § 922.92(a)(1) through
(10)if conducted in accordance within the scope, purpose, manner, terms and conditions of a permit issued under this section and § 922.48.
(b)Applications for such permits should be addressed to the Director, National Marine Sanctuary Program, ATTN: Manager, Gray's Reef National Marine Sanctuary, 10 Ocean Science Circle, Savannah, GA 31411.
(c)The Director, at his or her discretion may issue a permit, subject to such terms and conditions as he or she deems appropriate, to conduct an activity prohibited by § 922.92(a)(1) through (10). The Director must also find that the activity will:
(1)Further research related to the resources and qualities of the Sanctuary;
(2)Further the educational, natural, or historical resource value of the Sanctuary;
(3)Further salvage or recovery operations in connection with a recent air or marine casualty; or
(4)Assist in managing the Sanctuary.
(d)The Director shall not issue a permit unless the Director also finds that:
(1)The applicant is professionally qualified to conduct and complete the proposed activity;
(2)The applicant has adequate financial resources available to conduct and complete the proposed activity;
(3)The duration of the proposed activity is no longer than necessary to achieve its stated purpose;
(4)The methods and procedures proposed by the applicant are appropriate to achieve the proposed activity's goals in relation to the activity's impacts on Sanctuary resources and qualities;
(5)The proposed activity will be conducted in a manner compatible with the primary objective of protection of Sanctuary resources and qualities, considering the extent to which the conduct of the activity may diminish or enhance Sanctuary resources and qualities, any indirect, secondary or cumulative effects of the activity, and the duration of such effects;
(6)The proposed activity will be conducted in a manner compatible with the value of the Sanctuary as a source of recreation, or as a source of educational or scientific information considering the extent to which the conduct of the activity may result in conflicts between different users of the Sanctuary, and the duration of such effects;
(7)It is necessary to conduct the proposed activity within the Sanctuary to achieve its purposes;
(8)The reasonably expected end value of the activity to the furtherance of Sanctuary goals and purposes outweighs any potential adverse impacts on Sanctuary resources and qualities from the conduct of the activity; and
(9)There are no other factors that make the issuance of a permit for the activity inappropriate.
(e)It shall be a condition of any permit issued that the permit or a copy thereof be displayed on board all vessels or aircraft used in the conduct of the activity.
(f)The Director shall, inter alia, make it a condition of any permit issued that any data or information obtained under the permit be made available to the public.
(g)The Director may, inter alia, make it a condition of any permit issued to require the submission of one or more reports of the status and progress of such activity.
(h)The Director may, inter alia, make it a condition of any permit issued that a NOAA official be allowed to observe any activity conducted under the permit and/or that the permit holder submit one or more reports on the status, progress or results of any activity authorized by the permit. [FR Doc. E6-16841 Filed 10-11-06; 8:45 am] BILLING CODE 3510-NK-P DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 100 [CGD05-06-078] RIN 1625-AA08 Special Local Regulations for Marine Events; Patapsco River, Inner Harbor, Baltimore, MD AGENCY: Coast Guard, DHS. ACTION: Temporary final rule. SUMMARY: The Coast Guard is establishing special local regulations during the “Red Bull Flugtag Baltimore”, a marine event to be held October 21, 2006 on the waters of the Patapsco River, Inner Harbor, Baltimore, MD. These special local regulations are necessary to provide for the safety of life on navigable waters during the event. This action is intended to temporarily restrict vessel traffic in a portion of the Baltimore Inner Harbor during the event. DATES: This rule is effective from 10:30 a.m. to 5:30 p.m. on October 21, 2006. ADDRESSES: Documents indicated in this preamble as being available in the docket, are part of docket (CGD05-06-078) and are available for inspection or copying at Commander (dpi), Fifth Coast Guard District, 431 Crawford Street, Portsmouth, Virginia 23704-5004, between 9 a.m. and 2 p.m., Monday through Friday, except Federal holidays. FOR FURTHER INFORMATION CONTACT: Dennis Sens, Project Manager, Fifth Coast Guard District, Inspections and Investigations Branch, at
(757)398-6204. SUPPLEMENTARY INFORMATION: Regulatory Information On August 16, 2006, we published a Notice of proposed rulemaking
(NPRM)entitled Special Local Regulations for Marine Events; Patapsco River, Inner Harbor, Baltimore, MD in the **Federal Register** (71 FR 47159). We received no letters commenting on the proposed rule. No public meeting was requested, and none was held. Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the **Federal Register** . Delaying the effective date would be contrary to the public interest, since immediate action is needed to ensure the safety of the event participants, support craft and other vessels transiting the event area. However, advance notifications will be made to affected waterway users via marine information broadcasts, area newspapers and local radio stations. Background and Purpose On October 21, 2006, Red Bull North America will sponsor “Red Bull Flugtag Baltimore” at the Inner Harbor in Baltimore, MD. The event will consist of 30 teams who attempt to fly a human powered craft from an 80-foot long flight deck that extends over the water immediately adjacent to the southwest corner of the promenade surrounding the Baltimore Inner Harbor. The regulated area originates at the southwest corner of the Inner Harbor adjacent to the Maryland Science Center and extends outward over the water within an approximately 150 yard arc. Due to the need for vessel control during the event, the Coast Guard will temporarily restrict vessel traffic in the event area to provide for the safety of participants, spectators and other transiting vessels. Discussion of Comments and Changes The Coast Guard did not receive comments in response to the Notice of proposed rulemaking
(NPRM)published in the **Federal Register** . Accordingly, the Coast Guard is establishing temporary special local regulations on specified waters of the Patapsco River, Inner Harbor, Baltimore, Maryland. Regulatory Evaluation This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. It is not “significant” under the regulatory policies and procedures of the Department of Homeland Security (DHS). We expect the economic impact of this rule to be so minimal that a full Regulatory Evaluation under the regulatory policies and procedures of DHS is unnecessary. Although this regulation will prevent traffic from transiting a portion of the Baltimore Inner Harbor during the event, the effect of this regulation will not be significant due to the limited duration that the regulated area will be in effect and the extensive advance notifications that will be made to the maritime community via the Local Notice to Mariners, marine information broadcasts, and area newspapers, so mariners can adjust their plans accordingly. Additionally, the regulated area has been narrowly tailored to impose the least impact on general navigation yet provide the level of safety deemed necessary. Vessel traffic may be able to transit the regulated area at slow speed when event activity is halted, when the Coast Guard Patrol Commander deems it is safe to do so. Small Entities Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule would not have a significant economic impact on a substantial number of small entities. This rule would affect the following entities, some of which might be small entities: the owners or operators of vessels intending to transit or anchor in the effected portion of the Baltimore Inner Harbor during the event. Although this regulation prevents traffic from transiting a small segment of the Baltimore Inner Harbor during the event, this rule would not have a significant economic impact on a substantial number of small entities for the following reasons. This rule would be in effect for only a limited period. Vessel traffic may be able to transit the regulated area when event activity is halted, when the Coast Guard Patrol Commander deems it is safe to do so. Before the enforcement period, we will issue maritime advisories so mariners can adjust their plans accordingly. Assistance for Small Entities Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we offered to assist small entities in understanding this rule so that they can better evaluate its effects on them and participate in the rulemaking process. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the address listed under ADDRESSES . The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard. Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). Collection of Information This rule would call for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). Federalism A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this rule under that Order and have determined that it does not have implications for federalism. Unfunded Mandates Reform Act The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this rule would not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble. Taking of Private Property This rule would not effect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights. Civil Justice Reform This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden. Protection of Children We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and would not create an environmental risk to health or risk to safety that might disproportionately affect children. Indian Tribal Governments This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. Energy Effects We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211. Technical Standards The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies. This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards. Environment We have analyzed this rule under Commandant Instruction M16475.lD and Department of Homeland Security Management Directive 5100.1, which guides the Coast Guard in complying with the National Environmental Policy Act of 1969
(NEPA)(42 U.S.C. 4321-4370f), and have concluded that there are no factors in this case that would limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Therefore, this rule is categorically excluded, under figure 2-1, paragraph (34)(h), of the Instruction, from further environmental documentation. Special local regulations issued in conjunction with a regatta or marine parade permit are specifically excluded from further analysis and documentation under that section. Under figure 2-1, paragraph (34)(h), of the Instruction, an “Environmental Analysis Check List” and a “Categorical Exclusion Determination” are not required for this rule. List of Subjects in 33 CFR Part 100 Marine safety, Navigation (water), Reporting and recordkeeping requirements, Waterways. For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 100 as follows: PART 100—REGATTAS AND MARINE PARADES 1. The authority citation for part 100 continues to read as follows: Authority: 33 U.S.C. 1233; Department of Homeland Security Delegation No. 0170.1. 2. Add a temporary § 100.35-T05-078 to read as follows: § 100.35-T05-078, Patapsco River, Inner Harbor, Baltimore, MD.
(a)*Definitions:* The following definitions apply to this section;
(1)Coast Guard Patrol Commander means a commissioned, warrant, or petty officer of the Coast Guard who has been designated by the Commander, Coast Guard Sector Baltimore.
(2)*Official Patrol* means any vessel assigned or approved by Commander, Coast Guard Sector Baltimore with a commissioned, warrant, or petty officer on board and displaying a Coast Guard ensign.
(3)*Participant* includes all vessels participating in the Red Bull Flugtag Baltimore under the auspices of a Marine Event Permit issued to the event sponsor and approved by Commander, Coast Guard Sector Baltimore.
(4)*Regulated area* includes the waters of the Patapsco River, Baltimore, MD, Inner Harbor within the immediate vicinity of the southwest corner of the harbor adjacent to the Maryland Science Center. The area is bounded on the south and west by the shoreline promenade, bounded on the north by a line drawn along latitude 39°16′58″ North and bounded on the east by a line drawn along longitude 076°36′36.5″ West. All coordinates reference Datum NAD 1983.
(b)Special local regulations:
(1)Except for event participants and persons or vessels authorized by the Coast Guard Patrol Commander, no person or vessel may enter or remain in the regulated area.
(2)The operator of any vessel in the regulated area shall:
(i)Stop the vessel immediately when directed to do so by any Official Patrol.
(ii)Proceed as directed by any Official Patrol.
(iii)When authorized to transit the regulated area, all vessels shall proceed at the minimum speed necessary to maintain a safe course that minimizes wake near the event area.
(c)*Effective period.* This section will be enforced from 10:30 a.m. to 5:30 p.m. on October 21, 2006. Dated: September 27, 2006. Larry L. Hereth, Rear Admiral, U.S. Coast Guard, Commander, Fifth Coast Guard District. [FR Doc. E6-16907 Filed 10-11-06; 8:45 am] BILLING CODE 4910-15-P DEPARTMENT OF HOMELAND SECURITY Coast Guard 46 CFR Part 1 [USCG-2006-24520] RIN 1625-AB03 Coast Guard Organization; Activities Europe; Correction AGENCY: Coast Guard, DHS. ACTION: Correcting amendment. SUMMARY: Final rule USCG-2006-24520, related to the Coast Guard's organization for marine safety functions, as affected by a change in the operational and administrative control of Activities Europe, was published in the **Federal Register** of June 22, 2006 (71 FR 35816). That final rule document contained an error that unintentionally resulted in the removal of several paragraphs of text in the Code of Federal Regulations. This final rule corrects that omission. DATES: Effective on October 12, 2006. FOR FURTHER INFORMATION CONTACT: If you have questions on this rule, call Mr. D. Skewes, Coast Guard, telephone 202-267-0418 or e-mail *DSkewes@comdt.uscg.mil.* If you have questions on viewing the docket, call Renee V. Wright, Program Manager, Docket Operations, telephone 202-493-0402. SUPPLEMENTARY INFORMATION: The Coast Guard published a document in the **Federal Register** of June 22, 2006 (71 FR 35816) amending, among other sections, 46 CFR 1.01-15 (a). The amendment inadvertently deleted paragraphs (a)(1) and (a)(2), concerning the activities of Marine Safety and Boating Safety Divisions. This correction restores the inadvertently deleted paragraphs. List of Subjects in 46 CFR Part 1 Administrative practice and procedure, Organization and functions (Government agencies), Reporting and recordkeeping requirements. Accordingly, 46 CFR part 1 is corrected by making the following correcting amendment: PART 1—ORGANIZATION, GENERAL COURSE AND METHODS GOVERNING MARINE SAFETY FUNCTIONS 1. The authority citation for part 1 continues to read as follows: Authority: 5 U.S.C. 552; 14 U.S.C. 633; 46 U.S.C. 7701; 46 U.S.C. Chapter 93; Pub. L. 107-296, 116 Stat. 2135; Department of Homeland Security Delegation No. 0170.1; § 1.01-35 also issued under the authority of 44 U.S.C. 3507. 2. Revise paragraph
(a)of § 1.01-15 to read as follows: § 1.01-15 Organization; Districts; National Maritime Center.
(a)To assist the District Commander, and the Atlantic Area Commander with respect to Activities Europe, in carrying out the regulatory and enforcement aspects of marine safety, there is assigned to each District Commander and to the Atlantic Area Commander a staff officer designated as Chief, Marine Safety Division. The chain of military command is from the District Commander to each Officer in Charge, Marine Inspection, within the district and from the Atlantic Area Commander to the Officer in Charge, Activities Europe. The Chief of the Marine Safety Division is a staff officer assigned to the District Commanders and Atlantic Area Commander, and acts only on the basis of the authority and direction of the District Commanders, and the Atlantic Area Commanders with respect to Activities Europe.
(1)The Chiefs, Marine Safety Division, in the District Offices, under the supervision of their respective District Commanders, direct the activities of their district relative to vessel, factory and shipyard inspections; reports and investigations of marine casualties and accidents; processing of violations of navigation and vessel inspection laws; the licensing, certificating, shipment and discharge of seamen; the investigation and institution of proceedings looking to suspension and revocation under 46 U.S.C. chapter 77 of licenses, certificates, and documents held by persons; and all other marine safety regulatory activities except those functions related to recreational boating when under the supervision of the Chiefs, Boating Safety Division, in the District Offices.
(2)Unless otherwise provided for, the Chiefs, Boating Safety Division, in the District Offices, under the supervision of their respective District Commanders, direct the activities in their districts relative to administration of the law enforcement program applicable to uninspected vessels used for recreational purposes and the imposition and collection of penalties in connection therewith; maintain liaison with Federal and State agencies having related interests; develop and coordinate agreements and arrangements with Federal and State agencies for cooperation in the enforcement of State and Federal laws related to recreational boating; and review investigative reports of recreational boating accidents. Dated: October 5, 2006. S.G. Venckus, Chief, Office of Regulations and Administrative Law, United States Coast Guard. [FR Doc. E6-16904 Filed 10-11-06; 8:45 am] BILLING CODE 4910-15-P FEDERAL COMMUNICATIONS COMMISSION 47 CFR Parts 2 and 80 [WT Docket No. 04-344; FCC 06-108] Maritime Communications AGENCY: Federal Communications Commission. ACTION: Final rule. SUMMARY: In this document, the Commission designates VHF maritime Channels 87B (161.975 MHz) and 88B (162.025 MHz) for Automatic Identification Systems (AIS). The designation of Channels 87B and 88B for AIS in the United States is consistent with establishment of a seamless global AIS framework, and will facilitate the broad, efficient and effective implementation of AIS in U.S. territorial waters. The intended effect of this action is to maximize the benefits of AIS for United States homeland security and maritime safety. DATES: Effective November 13, 2006. FOR FURTHER INFORMATION CONTACT: Jeffrey Tobias, *Jeff.Tobias@FCC.gov,* Public Safety and Critical Infrastructure Division, Wireless Telecommunications Bureau,
(202)418-0680, or TTY
(202)418-7233. SUPPLEMENTARY INFORMATION: This is a summary of the Federal Communications Commission's *Report and Order,* FCC 06-108, adopted on July 20, 2006, and released on July 24, 2006. The full text of this document is available for inspection and copying during normal business hours in the FCC Reference Center, 445 12th Street, SW., Washington, DC 20554. The complete text may be purchased from the Commission's copy contractor, Best Copy and Printing, Inc., 445 12th Street, SW., Room CY-B402, Washington, DC 20554. The full text may also be downloaded at: *http://www.fcc.gov.* Alternative formats are available to persons with disabilities by sending an e-mail to *fcc504@fcc.gov* or by calling the Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (tty). 1. In the *Report and Order,* the Commission affirms its tentative conclusion that, in light of current circumstances, the public interest would be served by designating Channel 87B for exclusive AIS use on a wideband simplex basis. Such an approach would result in both Channel 87B and the Federal Government Channel 88B being available for AIS use in U.S. territorial waters, just as they are used for that purpose internationally. Most commenters continue to favor this approach. However, MariTEL and a few other commenters oppose the designation of Channel 87B for AIS in the wideband simplex mode. These commenters contend that the use of duplex channels for AIS in the United States is technically feasible and should be preferred over wideband simplex AIS operation on Channel 87B because it would cause less disruption to existing VPC operations, preserve the efficiency benefits of duplex channelization throughout the VPC band, maximize the spectrum available for VPC communications, facilitate the implementation of wide-area VPC systems, reduce coordination requirements, permit VPC licensees to make full use of Channel 87, and minimize AIS interference to and from VPC operations. These comments focus primarily on the comparative impact on VPC operations of the various AIS channel designation options, but the Commission believes it is at least as important, if not more so, to consider the impact its decisions herein will have on AIS, a service specifically intended to enhance maritime domain awareness and navigational safety. 2. In the *Notice of Proposed Rule Making* in this proceeding ( *AIS NPRM* ), the Commission offered a number of reasons why it believed that the designation of Channel 87B for domestic AIS use on a wideband simplex basis would best promote the widespread, efficient and effective use of AIS, and thus the public interest in promoting and enhancing homeland security and maritime safety. Neither the comments to the *AIS NPRM* nor anything else in the record of this proceeding undermine the Commission's tentative conclusion that it would serve the public interest to designate Channel 87B for wideband simplex AIS use in the United States. Of critical importance, adoption of the Commission's proposal permits seamless worldwide AIS operations. As NTIA notes, use of Channels 87B and 88B for AIS communications in U.S. territorial waters will facilitate Coast Guard coordination with other nations in tracking and monitoring vessels. 3. In addition, the Commission remains concerned about the negative consequences that would arise if it does not designate Channel 87B for AIS use in the United States, because vessels on international voyages would have to switch from Channel 87B to other channels when entering U.S. territorial waters. As the Commission explained in the *AIS NPRM,* requiring vessels to switch channels as they transit an AIS “fence” between international and U.S. waters would create a risk that AIS tracking of such vessels, by both shore stations and other ship stations, would be interrupted. This temporary disappearance of vessels from AIS screens as they transit the AIS fence increases the risk of vessel collisions and creates a potential vulnerability in the Nation's maritime domain awareness. MariTEL concedes that the resultant need of vessels to switch channels when entering U.S. waters could be “problematic,” but argues that it should not preclude use of duplex channels for AIS in the United States. The Commission continues to believe that the potential risks of “losing” vessels from AIS screens when they first enter U.S. territorial waters, especially in busy maritime areas where port security is critical, is a significant factor disfavoring the use of channels other than Channel 87B for AIS in the United States, even if, as MariTEL speculates, foreign vessels would eventually “become accustomed to switching to the U.S. AIS channels when they approach U.S. waters.” 4. Further, the record is devoid of any party disputing the Commission's determination in the *AIS NPRM* that domestic use of Channels 87B and 88B for AIS would facilitate the speedy and efficient deployment of AIS, allowing the United States to take full advantage of existing AIS standards and infrastructure. Technical standards have been established, and equipment has been built and installed, domestically and internationally, for AIS operation on Channels 87B and 88B. The Commission is concerned that the designation of narrowband duplex channels for domestic AIS use could preclude reliance on those prior standards-setting efforts, and necessitate further technical analysis and changes in equipment design, and possibly even a more extensive AIS shore infrastructure, to accommodate a unique AIS channelization scheme in the United States and the attendant need to switch AIS channels when entering U.S. waters. In addition to impeding AIS deployment in the United States as a general matter, such an approach also could discourage voluntary AIS carriage by, for example, recreational boaters, due to higher equipment costs. Moreover, the Commission believes, under the circumstances presented, that it is reasonable to consider, as part of its public interest analysis, the economic impact of a duplex approach on equipment manufacturers, ship station licensees and other stakeholders in the maritime community who have designed, manufactured, installed or are using (in most cases to comply with a statutory carriage requirement) AIS devices that operate on Channels 87B and 88B on a wideband simplex basis in reliance on the ITU standards. In this connection, the Commission notes that those standards have been in existence for several years, have been adopted for use not only in international waters but in the territorial waters of other nations, and are the only standards that have received any widespread acceptance. 5. Further, AIS operation on wideband channels will provide for effective AIS coverage at greater distances due to improved receiver sensitivity and frequency modulation discrimination capacity. In addition, requiring AIS shore station equipment and Class A AIS ship station equipment to operate in wideband mode will ensure the interoperability of such equipment with Class B devices. Although MariTEL correctly notes the inherent efficiency benefits of duplex channelization, the Commission agrees with NTIA that, under the circumstances presented, authorizing the use of Channel 87B on a simplex basis will, on balance, permit the establishment of more robust and effective AIS tracking capability in U.S. waters. 6. In sum, the Commission believes that AIS is an important tool for combating terrorism and a significant advancement in maritime navigation technology. Based on the record before us, the Commission is persuaded that its promotion and facilitation of AIS deployment will save lives, strengthen the integrity of our borders, protect port operations that are vital to the United States economy, and promote a healthy and secure marine environment. Given the importance of AIS to homeland security and maritime safety, the Commission also believes that, absent compelling reasons, it should adopt rules that will best ensure that AIS is deployed widely, quickly, reliably, and cost-effectively, and in a manner that will maximize its capabilities. On the basis of this record, the Commission believes that this goal can be most readily and best achieved by designating Channel 87B to be used for AIS on a wideband simplex basis. The Commission therefore amends its rules as proposed, and designates Channels 87B and 88B for exclusive AIS use. 7. In addition, the Commission adopts its proposal in the *AIS NPRM* to delete note US223 from the Table of Frequency Allocations if Channels 87B and 88B are designated for exclusive AIS use. Note US223 permits the authorization of maritime public correspondence operations on Channel 88 in specified areas within seventy-five miles of the Canadian border. Most of the commenters addressing this issue agree that it is no longer necessary to retain note US223 once Channel 88B has been designated exclusively for AIS in the maritime VPCSAs, inasmuch as VPCSAs 1, 5 and 7 completely encompass the areas identified in note US223. The Commission is not persuaded by MariTEL's argument that elimination of note US223 is inconsistent with MariTEL's retention of authority to use Channel 88. Under the rules the Commission adopts herein, MariTEL may use only the A side of Channel 88 for public correspondence operations, and it is unnecessary to retain note US223 to authorize such operations since Channel 88A (157.425 MHz) is allocated for non-Federal Government maritime mobile use on a primary basis. The Commission therefore deletes note US223 as proposed. The Commission agrees with MariTEL, however, that it should modify the table in § 80.371(c) of the Commission's rules only to reflect that Channels 87 and 88 may be used for radiotelephony in simplex mode, in keeping with the Commission's proposal in the *AIS NPRM* , rather than completely delete Channels 87 and 88 from the table. The Commission invited comment on the latter option as an alternative to its proposed amendment. MariTEL, the only commenter addressing this precise issue, correctly observes that eliminating Channels 87 and 88 from the table would be inconsistent with the fact that Channel 87A and, subject to the aforementioned limitations, Channel 88A can still be used for VPC service. 8. The Commission continues to believe that the interference impact of wideband simplex AIS on VPC operations can be effectively mitigated through commercially reasonable means. Accordingly, the Commission concludes that there is no need to adopt additional AIS interference abatement requirements. Even if simplex wideband AIS operations pose a greater interference challenge than duplex narrowband AIS operations, the Commission does not believe that extraordinary measures are necessary to overcome it. The record in this proceeding confirms that the use of forward error correction
(FEC)techniques with soft decision decoding mitigates interference from AIS. The Commission also continues to believe that VPF Public Coast
(VPC)station licensees would be required to employ FEC and interleaving even in the absence of AIS to correct errors due to signal fading. In support of this belief, the Commission notes that FEC and interleaving techniques are commonly used in other services and technologies, such as the Project 25 technology utilized by some public safety licensees. While the degree of error correction in the commercially available radio equipment MariTEL has thus far investigated may not meet its quality-of-service requirements, the technology is nonetheless available, as indicated in the comments. 9. In addition, while the Commission understands the desirability of limiting the amount of adjacent channel interference to VPC stations, it notes that the International Electrotechnical Commission
(IEC)AIS emissions mask is in fact more stringent than the emissions mask applicable to other part 80 devices. In addition, the IEC AIS mask in the 25 kHz mode is more stringent than the equivalent part 90 mask. Therefore, since the AIS emission limits already are more stringent than the normally applicable part 80 or part 90 emission limits, the Commission does not believe it necessary to impose additional technical requirements to further reduce AIS emissions under the circumstances presented. 10. The Commission continues to encourage the Coast Guard and MariTEL, as well as other VPC licensees, to cooperate on identification and implementation of effective interference mitigation measures, but it remains unconvinced that it should condition the use of Channel 87B for AIS on the Coast Guard's assumption of specific interference mitigation obligations. MariTEL propounds a number of such conditions as alternative means of allowing the use of Channel 87B for AIS in a manner that MariTEL deems sufficiently protective of its interests. MariTEL requests, for example, that the Commission require the Coast Guard to negotiate with MariTEL and incumbent licensees regarding interference protection, and to require an agreement among the parties before any rule designating Channel 87B for AIS becomes effective. The Commission thinks these approaches are both unnecessary, given its conclusions regarding the extent and remediability of AIS interference, and problematic. In this regard, the Commission is concerned that mandatory negotiations regarding interference protection would be no more successful than, and would have the same drawbacks as, mandatory negotiations over the designation of channels for AIS. It therefore declines to condition the designation of Channel 87B for AIS on the Coast Guard's successful completion of interference abatement negotiations with MariTEL and other VPC licensees for the same reasons that impelled us to reject another round of negotiations over the AIS channel designation. The Commission also declines to adopt MariTEL's alternative suggestion that any designation of Channel 87B for AIS be conditioned on demonstrating to MariTEL's satisfaction that it will be able to operate free of AIS interference. Following such an approach would give MariTEL the effective ability to veto AIS deployment on Channel 87B and could result in the same delay and uncertainty that would attend further negotiations. Moreover, even if the Commission were to agree with MariTEL's assessment of the interference threat posed by AIS, it still would be reluctant to make actions that would promote homeland security and public safety contingent upon a private entity's approbation. 11. Similarly, the Commission will not accept MariTEL's offer to forgo its objections to the reallocation of Channel 87B for AIS if the Commission adopts regulations that affirmatively require the Coast Guard to cure to MariTEL's satisfaction all interference to its VPC operations caused by the use of AIS devices on Channel 87B. MariTEL has failed to demonstrate that such extraordinary relief is warranted here and would further the public interest without adversely affecting homeland security and maritime safety. Moreover, such a requirement would be extremely difficult to craft and enforce. Most seriously, adoption of this MariTEL proposal raises the specter of shutting down AIS, thus creating a large vulnerability in our national security. 12. The Commission concludes that it would not serve the public interest to adopt the “Sharing Proposal” submitted by MariTEL because it appears that MariTEL still views a reexamination and revision of the AIS equipment certification standards as an integral component of the “Sharing Proposal.” The Commission believes, however, that it would be counterproductive to reconsider the AIS equipment standards. To do so would not only create problems for international AIS interoperability and coordination, but would also retard, possibly even freeze, AIS deployment efforts in this country, and could also necessitate retrofitting vessels that have already installed AIS equipment meeting the current international and FCC requirements. 13. The Commission affirms its tentative conclusion in the *AIS NPRM* that there is no basis in public policy or equity to compensate MariTEL in conjunction with the designation of Channels 87B and 88B for AIS on a wideband simplex basis. MariTEL contends, as it has consistently throughout this proceeding, that the Commission should require the Coast Guard to compensate it for harmful interference if the Commission adopts its AIS channel designation proposal. MariTEL asserts that failing to take such action would, for the first time, strip the winner of an FCC auction of the right to the spectrum it purchased in that auction, and that such action would be inequitable and contrary to public policy. The Commission disagrees for a number of reasons. Most importantly, the Commission do not believe that wideband simplex AIS operations on Channels 87B and 88B will unreasonably burden MariTEL's use of its licensed VPC spectrum. Even if such wideband simplex AIS operations were to present new challenges to the launch of a data network on the maritime VPCSA channels, the Commission does not believe that those challenges cannot be surmounted, and does not believe they are of such magnitude as to warrant special compensation to maritime VPCSA licensees. As the Commission indicated in the *AIS NPRM* , moreover, licensees who acquire their licenses at auction do not have a vested right to the continuation without change of the rules in effect at the time of the auction. Auction bidders are on notice, based on clear statutory language and judicial precedent, that the Commission retains the power to alter the terms of existing licenses (whether or not acquired through competitive bidding) through rulemaking, should the public interest so warrant. 14. The Commission believes that it would be beneficial and prudent to augment the record on the important question of whether to expand the exclusive use of Channel 87B for AIS beyond the nine maritime VPC service areas (VPCSAs), as initially contemplated, before taking final action on this issue. NTIA's request for a nationwide AIS allocation is now based to a significant degree on the need to protect satellite AIS systems, but NTIA advanced this justification for the first time in its comments to the *AIS NPRM* . As a result, the existing record provides almost no information regarding the technical feasibility, effectiveness or potential benefits of satellite AIS, and no studies or analysis of potential interference to and from satellite AIS. The Commission is not convinced, based on the current record, that it should depart from its earlier determinations limiting the scope of the AIS set-aside. On the other hand, neither does the Commission believe that it can affirm its tentative conclusion in the *AIS NPRM* , that the public interest would not be served by extending AIS use of Channel 87B to inland areas, without further review of this new development. It appears that satellite AIS may significantly expand the range at which vessels may be effectively identified and tracked. Such an expansion of AIS vessel tracking capabilities could promote and enhance maritime domain awareness. Accordingly, the Commission invites comment in a *Further Notice of Proposed Rule Making* on issues pertaining to satellite AIS, and further comment more generally on the geographic scope of the AIS set-aside. 15. The Commission believes, at this juncture, that Channel 87B can continue to be used for AIS on a shared basis with the limited group of site-based incumbent VPC stations in the maritime VPCSAs, but that the channel should ultimately be cleared for exclusive AIS use. The Commission is not persuaded that it is necessary to clear Channel 87B of site-based VPC stations immediately, as requested by NTIA, but neither will it require that AIS operate on a non- interference basis to such stations, as ShipCom essentially urges (unless the incumbents receive compensation). Although ShipCom contends that it is impossible for site-based VPC operations to co-exist with AIS on Channel 87B, neither ShipCom nor NTIA (nor any other party) has brought to the Commission's attention any present examples of real-world VPC/AIS interference, notwithstanding that AIS has been operating on Channel 87B for several years now. The Commission also believes that ShipCom, like MariTEL, is incorrect in asserting that it is practically impossible to overcome AIS interference, in this case co-channel as well adjacent channel interference. In addition, the Commission is likewise unaware of any actual interference to AIS transmissions from these VPC operations, and it believes that AIS will be able to operate effectively notwithstanding the continued use of Channel 87B for a limited period of time by a very few, highly localized VPC stations. 16. However, the Commission also believes that to ensure the integrity of AIS in the long run, Channel 87B should be cleared of all site-based VPC and private land mobile radio
(PLMR)operations over time through the non-renewal of any license authorizing such operation on Channel 87B in a maritime VPCSA. The Commission accordingly adds a new footnote to § 80.373(c)(1)(i) of the rules to provide that no site-based authorization to operate on Channel 87B in a maritime VPCSA will be renewed after this *Report and Order* takes effect. Operation of PLMR stations authorized to use Channel 87B on a secondary basis must cease immediately if it causes harmful interference to AIS that the licensee is unable to remedy. I. Procedural Matters A. Paperwork Reduction Act Analysis 17. The action contained herein has been analyzed with respect to the Paperwork Reduction Act of 1995
(PRA)and found to impose no new or modified reporting or recordkeeping requirements or burdens to the public, including businesses with fewer than 25 employees. B. Report to Congress 18. The Commission will send a copy of this *Report and Order* in a report to be sent to Congress and the General Accounting Office pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A). C. Final Regulatory Flexibility Analysis 19. As required by the Regulatory Flexibility Act of 1980, as amended (RFA), an Initial Regulatory Flexibility Analysis
(IRFA)was incorporated in the *Notice of Proposed Rule Making* in this proceeding ( *AIS NPRM* ). The Commission sought written public comment on the proposals in the *AIS NPRM* , including comment on the IRFA. This present Final Regulatory Flexibility Analysis
(FRFA)conforms to the RFA. Need for, and Objectives of, the Report and Order 20. The rules adopted in the *Report and Order* are intended to identify spectrum to be used for maritime Automatic Identification Systems
(AIS)in the United States and its territorial waters. AIS is an important tool for enhancing maritime safety and homeland security, and the Commission had been concerned that certain developments in recent years, such as the termination of the Memorandum of Agreement between the U.S. Coast Guard and MariTEL, Inc. regarding the set-aside of channels for AIS, and the various petitions and pleadings filed by NTIA and MariTEL following that termination, may have created uncertainty in the maritime community regarding the very high frequency
(VHF)channels to be used for AIS, and that this in turn could impede efforts to expedite the broad deployment of AIS domestically. In the *Report and Order,* we designate VHF maritime Channels 87B and 88B for AIS use domestically, in keeping with the international allocation of those channels for AIS, because we believe the use of those channels will best ensure that the United States can maximize the maritime safety and homeland security benefits of AIS. The use of VHF maritime Channels 87B and 88B for domestic AIS use will, *inter alia,* permit U.S. participation in a seamless global AIS network, avoid the problems that would inhere in requiring vessels to switch AIS channels when transiting an AIS “fence” between international and U.S. territorial waters, facilitate speedy AIS deployment using existing technical standards and infrastructure, and provide for AIS coverage at greater distances than would otherwise be possible. Summary of Significant Issues Raised by Public Comments in Response to the IRFA 21. No comments were submitted specifically in response to the IRFA. However, some commenters, including two VHF Public Coast
(VPC)station licensees, MariTEL, Inc. (MariTEL) and ShipCom LLC (ShipCom), contend that the interference impact of wideband simplex AIS operations on Channels 87B and 88B would be of such magnitude as to effectively preclude VPC licensees from being able to make commercially reasonable use of their licensed spectrum. As discussed in detail in Section E of this FRFA, we have considered the potential economic impact on small entities of these rules, and we have considered alternatives that would reduce the potential economic impact on small entities of the rules enacted herein, regardless of whether the potential economic impact was discussed in any comments. Description and Estimate of the Number of Small Entities to Which Rules Will Apply 22. The RFA directs agencies to provide a description of and, where feasible, an estimate of the number of small entities that may be affected by the proposed rules, if adopted. The RFA defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. A small business concern is one which:
(1)is independently owned and operated;
(2)is not dominant in its field of operation; and
(3)satisfies any additional criteria established by the Small Business Administration (SBA). 23. Small businesses in the aviation and marine radio services use a very high frequency
(VHF)marine or aircraft radio and, as appropriate, an emergency position-indicating radio beacon (and/or radar) or an emergency locator transmitter. The Commission has not developed a small business size standard specifically applicable to these small businesses. For purposes of this analysis, the Commission uses the SBA small business size standard for the category “Cellular and Other Wireless Telecommunications,” which is 1,500 or fewer employees. Between December 3, 1998 and December 14, 1998, the Commission held an auction of 42 VHF Public Coast
(VPC)licenses in the 157.1875-157.4500 MHz (ship transmit) and 161.775-162.0125 MHz (coast transmit) bands. For purposes of the auction, the Commission defined a “small” business as an entity that, together with controlling interests and affiliates, has average gross revenues for the preceding three years not to exceed fifteen million dollars. In addition, a “very small” business is one that, together with controlling interests and affiliates, has average gross revenues for the preceding three years not to exceed three million dollars. There are approximately 10,672 licensees in the Marine Coast Service, and the Commission estimates that almost all of them qualify as “small” businesses under the above special small business size standards. Description of Projected Reporting, Recordkeeping, and Other Compliance Requirements for Small Entities 24. There are no projected reporting, recordkeeping or other compliance requirements. However, some commenters contend that the *Report and Order* may have a significant economic impact on VPC licensees because of the potential interference impact on their operations of designating VHF maritime Channels 87B and 88B for exclusive AIS use on a wideband simplex basis within the nine maritime VPC service areas (VPCSAs). Steps Taken To Minimize the Significant Economic Impact on Small Entities, and Significant Alternatives Considered 25. The RFA requires an agency to describe any significant alternatives that it has considered in developing its approach, which may include the following four alternatives (among others): “(1) The establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities;
(2)the clarification, consolidation, or simplification of compliance and reporting requirements under the rule for such small entities;
(3)the use of performance rather than design standards; and
(4)an exemption from coverage of the rule, or any part thereof, for such small entities.” 26. In the IRFA of the *AIS NPRM,* the Commission described, and sought comment on, possible alternatives to the Commission's proposal for the designation of Channels 87B and 88B for AIS that might minimize the economic impact on small entities. First, the Commission asked commenters to consider the interference impact on MariTEL, licensee of the nine maritime VPC service areas, or on any incumbent site-based VPC licensees or any Economic Area
(EA)VPC licensees, of the proposed designation of Channels 87B and 88B for AIS exclusively. The Commission noted that it had tentatively concluded that the proposed designation of Channels 87B and 88B for AIS should not have an adverse effect on MariTEL's use of its VPC channels to a materially greater extent, if at all, than would designation of two narrowband offset channel pairs of the Commission's choosing from the 156-162 MHz VHF maritime band. The Commission noted that it had requested comment on this tentative conclusion, and had also asked commenters to consider if incumbent site-based VPC operations can co-exist on a non-interference basis with AIS and, if not, whether the Commission should require that these operations be migrated to other spectrum and/or that the licensees be compensated in some way. 27. Commenters were requested to identify potential means of minimizing or eliminating any adverse economic impact on any small entities, particularly VPC licensees that qualify as small entities, if Channels 87B and 88B are designated for AIS use. The Commission suggested that such means might include, for example, exemptions, grandfathering protection, or geographic limitations on the use of Channels 87B and 88B for AIS. The Commission also stated, *inter alia* , that commenters could recommend that the Commission designate channels other than Channels 87B and 88B for AIS use in the United States as a means of minimizing any adverse economic impact on these licensees. The Commission noted, however, that mandating use of channels other than Channels 87B and 88B for AIS use in the United States could have an adverse economic impact on vessel operators and radio equipment manufacturers that qualify as small entities by, for example, increasing the cost of AIS equipment, causing premature obsolescence of AIS equipment already installed on vessels, or leaving manufacturers with stranded inventory. Accordingly, commenting parties, and particularly commenting parties who favor adopting an alternative to the Commission's proposal, were asked to address the potential economic impact of that alternative on small entities. In addition, the Commission specifically invited site-based incumbent licensees that operate within VHF Public Coast Service Areas (VPCSAs) 1-9 on Channel 87B or Channel 88B to suggest alternatives or additions to the Commission's proposal that would minimize any significant economic impact on them. Finally, the Commission also noted that there are incumbent licensees operating on the specified channels in inland areas. The Commission said it did not anticipate any significant adverse effect on any such licensee due to the geographic limitations of its proposal, *i.e.* , its tentative determination to limit the AIS set-aside to areas near major navigable waterways. Commenters who believed differently were asked to describe the expected adverse economic impact on incumbent inland licensees operating on these or adjacent channels, and to provide suggested methods of minimizing any such impact. The Commission noted that, although it was proposing only to designate Channels 87B and 88B for AIS in the nine maritime VPCSAs, it was not foreclosing the possibility of designating those channels for AIS on a nationwide basis, and it therefore requested inland licensees and other interested parties to address the possible economic impact on small entities if the Commission were to designate Channels 87B and 88B for AIS in inland areas as well as the nine maritime VPCSAs. 28. Although we received no comments specifically addressed to the IRFA for the *AIS NPRM,* we have considered all comments to the *AIS NPRM* addressing the impact of any proposed change on small entities and all suggestions for alternative measures that would have a less significant impact on small entities. In particular, we have addressed comments regarding the impact on VPC licensees of designating Channels 87B and 88B for AIS on a wideband simplex basis. We have considered the possibility of designating two narrowband duplex channel pairs for AIS in lieu of Channel 87B, because commenters argued that VPC licensees would not incur as great a level of interference from narrowband duplex AIS as they would from wideband simplex AIS. We have determined not to designate narrowband duplex channels for AIS in lieu of Channel 87B because doing so would compromise the effectiveness of AIS as a tool in the service of homeland security and maritime safety. Because both international bodies and other nations operate AIS on a wideband simplex basis on Channels 87B and 88B, the designation of narrowband duplex channels for AIS in the United States would preclude creation of a seamless global AIS network; limit and complicate the ability of the Coast Guard to coordinate with maritime safety organizations in other nations; result in AIS coverage gaps when vessels transit an AIS “fence” between international and U.S. territorial waters; delay domestic AIS deployment efforts; discourage voluntary carriage of AIS equipment; and reduce the distances at which vessels may be tracked. In addition, the designation of narrowband duplex channels for AIS would likely harm more small entities than it would benefit, because it could leave small manufacturers of marine radio equipment with stranded inventory, and require small entities that own or operate vessels to refit those vessels with new AIS equipment. 29. We also have considered a proposal by MariTEL that would permit MariTEL to share use of Channel 87B in what MariTEL deems a commercially advantageous manner. We have rejected this MariTEL *Sharing Proposal* for two reasons. First, it includes as an integral component the Commission's agreement to revisit and revise the rules governing certification of AIS equipment. We have concluded that it would disserve the public interest to adopt AIS equipment certification requirements that diverge from the international requirements. An attempt to devise new, U.S.-specific AIS equipment standards at this juncture would engender many of the same problems that would attend designation of AIS channels other than Channels 87B and 88B for use in the United States. Second, the *Sharing Proposal* contemplates the Commission's imposition and enforcement of restrictions on the ability of entities other than MariTEL to make commercial use of AIS data. We have concluded that, even if the Commission had authority to impose and enforce such restrictions, its exercise would be administratively burdensome. 30. In making all of the above policy determinations, we have weighed in the balance the interference impact of wideband simplex AIS on MariTEL and the other VPC licensees. We have concluded that whatever harmful interference may be caused to VPC operations by wideband simplex AIS transmissions, it can be effectively mitigated through commercially reasonable means, such as forward error correction
(FEC)coding, and block interleaving. Based on that determination, as well as a determination that there is no legal theory through which the Commission could provide compensation to VPC licensees in any event, the Commission has declined to provide for compensation to any VPC licensee based on predictions of the interference impact of AIS. 31. As a measure to minimize the potential economic impact of its decision herein on site-based incumbent VPC licensees, some of which may be small entities, we have determined not to require such licensees to immediately terminate use of Channel 87B in order to clear the spectrum for AIS. Instead, we are providing that such licensees may continue to operate on Channel 87B for the remainder of their current license terms, but also that no such license will be renewed for operation on Channel 87B. This provides what is in effect grandfathering protection for site-based incumbent licensees for a period of several years, with the precise termination date based on their current authorizations. In reaching this determination, we have considered that site-based incumbent VPC licensees, unlike maritime VPCSA licensees, were not subject to any pre-existing requirement to set aside spectrum for AIS. 32. Finally, we have determined to augment the record with additional comments to better inform a decision as to whether the designation of Channel 87B for AIS should be nationwide in scope or just limited to the nine maritime VPCSAs. We discuss this matter in the *Further Notice of Proposed Rule Making* ( *Further Notice* ) in this proceeding and the accompanying Initial Regulatory Flexibility Analysis of the *Further Notice, infra* . D. Report to Congress 33. The Commission will send a copy of this *Report and Order* in WT Docket No. 04-344, including the Final Regulatory Flexibility Analysis, in a report to be sent to Congress pursuant to the Congressional Review Act. In addition, the Commission will send a copy of the *Report and Order,* including the Final Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the SBA. A copy of the *Report and Order* and the Final Regulatory Flexibility Analysis (or summaries thereof) will also be published in the **Federal Register** . List of Subjects in 47 CFR Parts 2 and 80 Communications, Radio. Federal Communications Commission. Marlene H. Dortch, Secretary. Rule Changes For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR parts 2 and 80 as follows: PART 2—FREQUENCY ALLOCATIONS AND RADIO TREATY MATTERS; GENERAL RULES AND REGULATIONS 1. The authority citation for part 2 continues to read as follows: Authority: 47 U.S.C. 154, 302a, 303, and 336, unless otherwise noted. 2. Section 2.106, the Table of Frequency Allocations, is amended as follows: a. Revise page 21. b. In the list of United States
(US)Notes remove footnote US223 and add footnote US399. The revisions and additions read as follows: § 2.106 Table of Frequency Allocations. BILLING CODE 6712-01-P ER12OC06.013 BILLING CODE 6712-01-C UNITED STATES
(US)NOTES US399 Except as indicated below, the frequency bands 161.9625-161.9875 MHz (AIS 1 with its center frequency at 161.975 MHz) and 162.0125-162.0375 MHz (AIS 2 with its center frequency at 162.025 MHz) are allocated to the maritime mobile service on a primary basis for Federal Government and non-Federal Government use, and shall be used exclusively for Automatic Identification Systems. However, in VHF Public Coast Station Areas (VPCSAs) 1-9, site-based VHF Public Coast stations licensed prior to [effective date of this order] may continue to operate on a co-primary basis in the frequency band 161.9625-161.9875 MHz until expiration of the license term for licenses in active status as of [effective date of this order], and in VPCSAs 10-42, the band 161.9625-161.9875 MHz is allocated to the maritime mobile service on a primary basis for exclusive non-Federal Government use. *See* 47 CFR 80.371(c)(1)(ii) for the definitions of VPCSAs. PART 80—STATIONS IN THE MARITIME SERVICES 3. The authority citation for part 80 continues to read as follows: Authority: Secs. 4, 303, 307(e), 309, and 332, 48 Stat. 1066, 1082, as amended; 47 U.S.C. 154, 303, 307(e), 309, and 332, unless otherwise noted. Interpret or apply 48 Stat. 1064-1068, 1081-1105, as amended; 47 U.S.C. 151-155, 301-609; 3 UST 3450, 3 UST 4726, 12 UST 2377. 4. Section 80.5 is amended by adding a definition for “Automatic Identification Systems (AIS)”, in alphabetical order, to read as follows: § 80.5 Definitions. *Automatic Identification Systems (AIS).* A maritime navigation safety communications system standardized by the International Telecommunication Union
(ITU)and adopted by the International Maritime Organization
(IMO)that provides vessel information, including the vessel's identity, type, position, course, speed, navigational status and other safety-related information automatically to appropriately equipped shore stations, other ships, and aircraft; receives automatically such information from similarly fitted ships; monitors and tracks ships; and exchanges data with shore-based facilities. 5. Section 80.13 is amended by revising paragraph
(c)to read as follows: § 80.13 Station license required.
(c)A ship station is licensed by rule and does not need an individual license issued by the FCC if the ship station is not subject to the radio equipment carriage requirements of any statute, treaty or agreement to which the United States is signatory, the ship station does not travel to foreign ports, and the ship station does not make international communications. A ship station licensed by rule is authorized to transmit radio signals using a marine radio operating in the 156-162 MHz band, any type of AIS, any type of EPIRB, and any type of radar installation. All other transmissions must be authorized under a ship station license. Even though an individual license is not required, a ship station licensed by rule must be operated in accordance with all applicable operating requirements, procedures, and technical specifications found in this part. 6. Section 80.371 is amended by revising paragraphs (c)(1)(i), (c)(2) and (c)(3) to read as follows: § 80.371 Public correspondence frequencies.
(c)* * * (1)(i) The frequency pairs listed in the following table are available for assignment to public coast stations for public correspondence communications with ship stations and units on land. Working Carrier Frequency Pairs in the 156-162 MHz Band 1 Channel designator Carrier frequency
(MHz)Ship transmit Coast transmit 24 157.200 161.800 84 157.225 161.825 25 157.250 161.850 85 2 157.275 161.875 26 157.300 161.900 86 157.325 161.925 27 157.350 161.950 87 4 5 157.375 161.975 28 157.400 162.000 88 3 157.425 162.025 1 For special assignment of frequencies in this band in certain areas of Washington State, the Great Lakes and the east coast of the United States pursuant to arrangements between the United States and Canada, see subpart B of this part. 2 The frequency pair 157.275/161.875 MHz is available on a primary basis to ship and public coast stations. In Alaska it is also available on a secondary basis to private mobile repeater stations. 3 Within that portion of VHF Public Coast Station Areas (VPCSAs) 1 through 9 listed in the table in paragraph (c)(1)(ii) of this section within 120 km (75 miles) of the United States/Canada border, in the area of the Great Lakes, the Saint Lawrence Seaway, and the Puget Sound and the Strait of Juan de Fuca and its approaches, Maritime VHF Channel 88A (157.425 MHz) is available for use for public correspondence communications, subject to prior coordination with Canada. Maritime VHF Channel 88B (162.025 MHz) is available only for Automatic Identification System communications. One hundred twenty kilometers (75 miles) from the United States/Canada border 157.425 MHz is available for intership and commercial communications. Outside the Puget Sound area and its approaches and the Great Lakes, 157.425 MHz is available for communications between commercial fishing vessels and associated aircraft while engaged in commercial fishing activities. 4 Within VHF Public Coast Station Areas (VPCSAs) 1 through 9 listed in the table in paragraph (c)(1)(ii) of this section, Maritime VHF Channel 87B (161.975 MHz) may be used only for Automatic Identification System communications. 5 No license authorizing a site-based VHF Public Coast Station or a Private Land Mobile Radio Station to operate on maritime VHF Channel 87B (161.975 MHz) in one of the nine maritime VHF Public Coast Service Areas (VPCSAs) listed in the table in paragraph (c)(1)(ii) will be renewed unless the license is or has been modified to remove Channel 87B as an authorized frequency.
(2)Any recovered channel pairs will revert automatically to the holder of the VPCSA license within which such channels are included, except the channel pairs listed in the table in paragraph (c)(1)(i) of this section. Those channel pairs, and any channel pairs recovered where there is no VPCSA licensee, will be retained by the Commission for future licensing.
(3)VPCSA licensees may not operate on Channel 228B (162.0125 MHz), which is available for use in the Coast Guard's Ports and Waterways Safety System (PAWSS). In addition, VPCSA licensees in VPCSAs 1-9 may not operate on Channel AIS 1 (161.975 MHz) or Channel AIS 2 (162.025 MHz), which are designated in those areas exclusively for Automatic Identification Systems (AIS), except to transmit and receive AIS communications to the same extent, and subject to the same limitations, as other shore stations participating in AIS. 7. Section 80.373 is amended by revising paragraph
(j)to read as follows. § 80.373 Private communications frequencies.
(j)*Frequencies for portable ship stations.* VHF frequencies authorized for stations authorized carrier frequencies in the 156.275 MHz to 157.450 MHz and 161.575 MHz to 162.025 MHz bands may also be authorized as marine utility stations. Marine-utility stations on shore must not cause interference to any Automatic Identification System, VHF or coast station, VHF or UHF land mobile base station, or U.S. Government station. 8. Section 80.393 is added to subpart H to read as follows: § 80.393 Frequencies for AIS stations. Automatic Identification Systems
(AIS)is a maritime broadcast service. The simplex channels at 161.975 MHz (AIS 1) and 162.025 MHz (AIS 2), each with a 25 kHz bandwidth, may be authorized in VHF Public Coast Station Areas 1-9 for AIS, and the frequency 162.025 MHz (AIS 2) also may be authorized in VHF Public Coast Station Areas 10-42 for AIS. The VHF Public Coast Station Areas are codified at 47 CFR 80.371(c)(1)(ii). In accordance with the Maritime Transportation Security Act, the United States Coast Guard regulates AIS carriage requirements for non-Federal Government ships. These requirements are codified at 33 CFR 164.46, 401.20. [FR Doc. 06-8655 Filed 10-11-06; 8:45 am]
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U.S. Code
- Procedures for designation and implementation§ 1434
- Definitions§ 1432
- Congressional declaration of purpose§ 4321
- Purposes§ 3501
- Findings, purposes, and policies; establishment of system§ 1431
- Rule making§ 553
- Avoidance of duplicative or unnecessary analyses§ 605
- Establishment, functions, and activities§ 272
- Public information; agency rules, opinions, orders, records, and proceedings§ 552
- General§ 7701
- Public information collection activities; submission to Director; approval and delegation§ 3507
- SHORT TITLE.§ 801
- Federal Communications Commission§ 154
CFR
register
17 references not yet in our index
- 15 CFR 922
- Pub. L. 98-498
- 15 CFR 922.48(a)
- 33 CFR 100
- 5 USC 601-612
- Pub. L. 104-121
- 44 USC 3501-3520
- 2 USC 1531-1538
- 42 USC 4321-4370f
- 33 USC 1233
- 46 CFR 1
- 46 CFR 1.01-15
- 14 USC 633
- Pub. L. 107-296
- 116 Stat. 2135
- 47 CFR 80.371(c)(1)(ii)
- 47 USC 151-155
Citation graph
cites case law
Unknown
Final rule; notice of public availability of final management plan/final environmental impact statement and record of decision
Cite15 CFR 922
Pub. L.Pub. L. 98-498
Cite15 CFR 922.48(a)
Cites 40 · showing 12Cited by 0 across 0 sources