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Code · REGISTER · 2006-11-24 · Bureau of Industry and Security, Commerce · Rules and Regulations

Rules and Regulations. Final rule

40,027 words·~182 min read·/register/2006/11/24/06-9380

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

BILLING CODE 4910-13-P DEPARTMENT OF COMMERCE Bureau of Industry and Security 15 CFR Parts 742, 745, and 774 [Docket No. 061027281-6281-01] RIN 0694-AD86 Implementation of the Understandings Reached at the June 2006 Australia Group
(AG)Plenary Meeting; Clarifications and Corrections; Additions to the List of States Parties to the Chemical Weapons Convention
(CWC)AGENCY: Bureau of Industry and Security, Commerce. ACTION: Final rule. SUMMARY: The Bureau of Industry and Security
(BIS)is publishing this final rule to amend the Export Administration Regulations
(EAR)to implement the understandings reached at the June 2006 plenary meeting of the Australia Group (AG). Specifically, this final rule amends the EAR to reflect changes to the AG “Control List of Biological Agents” by revising the Commerce Control List
(CCL)entry that controls certain human and zoonotic pathogens and toxins to add certain fungi (i.e., Coccidioides immitis and Coccidioides posadasii) and toxins (i.e., Shiga-like ribosome inactivating proteins other than verotoxin). Verotoxin continues to be listed under this CCL entry. Prior to the publication of this rule, the fungi Coccidioides immitis and Coccidioides posadasii and Shiga-like ribosome inactivating proteins other than verotoxin were listed under the CCL entry containing unilaterally controlled select agents and toxins not included on any of the AG Common Control Lists—this rule removes these items from that CCL entry. As a result of the addition of Shiga-like ribosome inactivating proteins other than verotoxin to the CCL entry that controls certain human and zoonotic pathogens and toxins, this rule makes conforming changes to two additional CCL entries (i.e., the CCL entry that controls certain AG-listed genetic elements and genetically modified organisms and the CCL entry that controls vaccines, immunotoxins, medical products, and diagnostic and food testing kits). This rule also amends the EAR to reflect changes to the AG “Control List of Dual-Use Chemical Manufacturing Facilities and Equipment and Related Technology” by expanding the scope of the CCL entry that controls certain chemical manufacturing facilities and equipment to include equipment in which all surfaces that come in direct contact with the chemical(s) being processed or contained are made from niobium (columbium) or niobium alloys. In addition, this final rule corrects errors in two CCL entries that were amended by a final rule that BIS published on December 29, 2004. This rule corrects a typographical error involving a Chemical Abstracts Service
(CAS)registry number in the CCL entry that controls AG-listed precursor chemicals. This rule also corrects an error in the CCL entry that controls certain Chemical Weapons Convention
(CWC)Schedule 2 or Schedule 3 chemicals not included on any of the AG Common Control Lists by removing the Schedule 3 chemical ethyldiethanolamine. The December 29, 2004, final rule added ethyldiethanolamine to the CCL entry that controls AG-listed precursor chemicals, but failed to remove it from the aforementioned entry. This rule also amends the EAR provisions describing AG-related license requirements and licensing policies to remind applicants that, even if an AG-related item is licensed by “$ value” (e.g., human and zoonotic pathogens and toxins, plant pathogens, genetic elements and genetically modified organisms, and select agents and toxins), the EAR still require that the unit of quantity commonly used in the trade be shown on the license application. Finally, this rule updates the list of countries that currently are States Parties to the Chemical Weapons Convention
(CWC)by adding the Central African Republic and Comoros, which recently became States Parties. As a result of this change, the CW (Chemical Weapons) license requirements and policies in the EAR that apply to these countries now conform with those applicable to other CWC States Parties. DATES: This rule is effective November 24, 2006. Although there is no formal comment period, public comments on this regulation are welcome on a continuing basis. ADDRESSES: You may submit comments, identified by RIN 0694-AD86, by any of the following methods: • *E-mail: publiccomments@bis.doc.gov.* Include “RIN 0694-AD86” in the subject line of the message. • *Fax:*
(202)482-3355. Please alert the Regulatory Policy Division, by calling
(202)482-2440, if you are faxing comments. • *Mail or Hand Delivery/Courier:* Willard Fisher, U.S. Department of Commerce, Bureau of Industry and Security, Regulatory Policy Division, 14th St. & Pennsylvania Avenue, NW., Room 2705, Washington, DC 20230, *Attn:* RIN 0694-AD86. Send comments regarding this collection of information, including suggestions for reducing the burden, to David Rostker, Office of Management and Budget (OMB), by e-mail to *David_Rostker@omb.eop.gov,* or by fax to
(202)395-7285; and to the Regulatory Policy Division, Bureau of Industry and Security, Department of Commerce, P.O. Box 273, Washington, DC 20044. Comments on this collection of information should be submitted separately from comments on the final rule (i.e., RIN 0694-AD86)—all comments on the latter should be submitted by one of the three methods outlined above. FOR FURTHER INFORMATION CONTACT: Elizabeth Scott, Director, Chemical and Biological Controls Division, Office of Nonproliferation and Treaty Compliance, Bureau of Industry and Security, Telephone:
(202)482-3343. SUPPLEMENTARY INFORMATION: Background The Bureau of Industry and Security
(BIS)is amending the Export Administration Regulations
(EAR)to implement the understandings reached at the annual plenary meeting of the Australia Group
(AG)that was held in Paris on June 12-15, 2006. The Australia Group is a multilateral forum, consisting of 39 participating countries, that maintains export controls on a list of chemicals, biological agents, and related equipment and technology that could be used in a chemical or biological weapons program. The AG periodically reviews items on its control list to enhance the effectiveness of participating governments' national controls and to achieve greater harmonization among these controls. The understandings reached at the June 2006 annual plenary meeting included a decision to add certain fungi and toxins to the AG “Control List of Biological Agents.” This rule amends the EAR to reflect that decision by revising Export Control Classification Number
(ECCN)1C351, which controls certain human and zoonotic pathogens and toxins, to add these fungi (i.e., Coccidioides immitis and Coccidioides posadasii) and toxins (i.e., Shiga-like ribosome inactivating proteins other than verotoxin). All Shiga-like ribosome inactivating proteins, including verotoxin, are now listed in 1C351.d.10, while the fungi Coccidioides immitis and Coccidioides posadasii are now listed in 1C351.e.1 and e.2, respectively. Prior to the publication of this rule, the fungi Coccidioides immitis and Coccidioides posadasii and Shiga-like ribosome inactivating proteins other than verotoxin were listed under ECCN 1C360, which contains unilaterally controlled select agents not included on any of the AG Common Control Lists. This rule removes these items from ECCN 1C360. As a result of the addition of Shiga-like ribosome inactivating proteins other than verotoxin to ECCN 1C351 and their removal from ECCN 1C360, this rule makes conforming changes to ECCN 1C353, which controls certain AG-listed genetic elements and genetically modified organisms, and ECCN 1C991, which controls vaccines, immunotoxins, medical products, and diagnostic and food testing kits. The List of Items Controlled in each of these ECCNs is amended to remove all references to ECCN 1C360.a.3.a, since Shiga-like ribosome inactivating proteins other than verotoxin are now controlled under ECCN 1C351.d.10. The scope of the EAR license requirements that apply to the specific items affected by the amendments to ECCNs 1C351, 1C353, 1C360, and 1C991 (described above) remains unchanged. The affected items in ECCNs 1C351, 1C353, and 1C360 continue to require a license for export or reexport to all countries or destinations indicated under CB Column 1 or AT Column 1 on the Commerce Country Chart (Supplement No. 1 to Part 738 of the EAR)—none of these items are controlled under 1C351.d.5. or .d.6, which also require a license for Chemical Weapons Convention
(CW)reasons. The affected items in ECCN 1C991 continue to require a license for export or reexport to all destinations indicated under CB Column 3 or AT Column 1 on the Commerce Country Chart. This rule also amends the EAR to reflect the understanding reached at the June 2006 annual plenary meeting to expand the scope of the AG “Control List of Dual-Use Chemical Manufacturing Facilities and Equipment and Related Technology” to include equipment in which all surfaces that come in direct contact with the chemical(s) being processed or contained are made from niobium (columbium) or niobium alloys. Specifically, this rule amends ECCN 2B350, which controls certain chemical manufacturing facilities and equipment, to include the following equipment in which all surfaces that come in direct contact with the chemical(s) being processed or contained are made from niobium (columbium) or niobium alloys: Reaction vessels or reactors; agitators for use in reaction vessels or reactors (including impellers, blades or shafts designed for such agitators); certain storage tanks, containers or receivers; certain heat exchangers or condensers (including tubes, plates, coils or blocks designed for such heat exchangers or condensers); certain distillation or absorption columns (including liquid distributors, vapor distributors or liquid collectors designed for such distillation or absorption columns); certain valves (including casings and preformed casing liners designed for such valves); multi-walled piping incorporating a leak detection port; and certain multiple-seal and seal-less pumps or vacuum pumps (including casings, preformed casing liners, impellers, rotors or jet pump nozzles designed for such pumps). Like all other items controlled under ECCN 2B350, the newly controlled equipment and accessories, in which all surfaces that come in direct contact with the chemical(s) being processed or contained are made from niobium (columbium) or niobium alloys, require a license to all countries or destinations indicated under CB Column 2 or AT Column 1 on the Commerce Country Chart. A license generally is not required to export or reexport ECCN 2B350 equipment and components to AG participating countries; however, certain transactions may be subject to license requirements described elsewhere in the EAR (e.g., Part 744 of the EAR). In addition, this final rule corrects errors contained in two CCL entries that were amended by a final rule that BIS published on December 29, 2004 (69 FR 77890). This rule corrects a typographical error involving a Chemical Abstracts Service (C.A.S.) registry number in ECCN 1C350, which controls AG-listed precursor chemicals. Specifically, the C.A.S. number for N,N-dimethylaminophosphoryl dichloride in 1C350.b.23 is revised to read “C.A.S. #677-43-0,” instead of “C.A.S. #667-43-0.” This rule also corrects an error in ECCN 1C355, which controls certain Chemical Weapons Convention
(CWC)Schedule 2 or Schedule 3 chemicals not included on any of the AG Common Control Lists. The December 29, 2004, final rule amended ECCN 1C350 by adding the CWC Schedule 3 chemical ethyldiethanolamine (C.A.S. #139-87-7) and eight other precursor chemicals to reflect an AG intersessional decision, which was adopted after the June 2004 annual plenary meeting, to add these precursor chemicals to the “Chemical Weapons Precursors” AG Common Control List. As part of this change, the rule also should have removed ethyldiethanolamine (C.A.S. #139-87-7) from ECCN 1C355.b.2.a, but inadvertently failed to do so. This final rule corrects that oversight. This rule also amends Section 742.2 of the EAR, which describes AG-related license requirements and licensing policies, to clarify certain AG-related license application requirements. Specifically, this rule adds a new paragraph
(e)to indicate that, even if an AG-related item is licensed by “$ value” (e.g., human and zoonotic pathogens and toxins, plant pathogens, genetic elements and genetically modified organisms, and select agents and toxins), the EAR still require that the unit of quantity commonly used in the trade also be shown on the license application. This new paragraph also contains a reference to paragraph
(a)of Supplement No. 2 to Part 748 of the EAR, which describes unique application and submission requirements for chemicals, medicinals, and pharmaceuticals. Finally, this rule revises Supplement No. 2 to Part 745 of the EAR (titled “States Parties to the Convention on the Prohibition of the Development, Production, Stockpiling, and Use of Chemical Weapons and on Their Destruction”) by adding the Central African Republic and Comoros, which recently became States Parties to the CWC. As a result of this change, the license requirements and policies that apply to exports and reexports of items controlled for CW reasons to each of these countries now conform with those applicable to other CWC States Parties, as described in Section 742.18 of the EAR. Although the Export Administration Act expired on August 20, 2001, the President, through Executive Order 13222 of August 17, 2001, 3 CFR, 2001 Comp., p. 783 (2002), as extended by the Notice of August 3, 2006, 71 FR 44551 (August 7, 2006), has continued the Export Administration Regulations in effect under the International Emergency Economic Powers Act. Saving Clause Shipments of items removed from eligibility for export or reexport under a license exception or without a license (i.e., under the designator “NLR”) as a result of this regulatory action that were on dock for loading, on lighter, laden aboard an exporting carrier, or en route aboard a carrier to a port of export, on December 26, 2006, pursuant to actual orders for export or reexport to a foreign destination, may proceed to that destination under the previously applicable license exception or without a license
(NLR)so long as they are exported or reexported before January 8, 2007. Any such items not actually exported or reexported before midnight, on January 8, 2007, require a license in accordance with this regulation. “Deemed” exports of “technology” and “source code” removed from eligibility for export under a license exception or without a license (under the designator “NLR”) as a result of this regulatory action may continue to be made under the previously available license exception or without a license
(NLR)before January 8, 2007. Beginning at midnight on January 8, 2007, such “technology” and “source code” may no longer be released, without a license, to a foreign national subject to the “deemed” export controls in the EAR when a license would be required to the home country of the foreign national in accordance with this regulation. Rulemaking Requirements 1. This rule has been determined to be not significant for purposes of Executive Order 12866. 2. 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 of 1995 (44 U.S.C. 3501 *et seq.* ) (PRA), unless that collection of information displays a currently valid Office of Management and Budget
(OMB)Control Number. This rule contains a collection of information subject to the requirements of the PRA. This collection has been approved by OMB under Control Number 0694-0088 (Multi-Purpose Application), which carries a burden hour estimate of 58 minutes to prepare and submit form BIS-748. Send comments regarding this burden estimate or any other aspect of this collection of information, including suggestions for reducing the burden, to David Rostker, Office of Management and Budget (OMB), and to the Regulatory Policy Division, Bureau of Industry and Security, Department of Commerce, as indicated in the ADDRESSES section of this rule. 3. This rule does not contain policies with Federalism implications as that term is defined in Executive Order 13132. 4. The provisions of the Administrative Procedure Act (5 U.S.C. 553) requiring notice of proposed rulemaking, the opportunity for public participation, and a delay in effective date, are inapplicable because this regulation involves a military and foreign affairs function of the United States (Sec. 5 U.S.C. 553(a)(1)). Further, no other law requires that a notice of proposed rulemaking and an opportunity for public comment be given for this final rule. Because a notice of proposed rulemaking and an opportunity for public comment are not required to be given for this rule under 5 U.S.C. 553 or by any other law, the analytical requirements of the Regulatory Flexibility Act (5 U.S.C. 601 *et seq.* ) are not applicable. Therefore, this regulation is issued in final form. Although there is no formal comment period, public comments on this regulation are welcome on a continuing basis. List of Subjects 15 CFR Part 742 Exports, Foreign trade. 15 CFR Part 745 Administrative practice and procedure, Chemicals, Exports, Foreign trade, Reporting and recordkeeping requirements. 15 CFR Part 774 Exports, Foreign trade, Reporting and recordkeeping requirements. Accordingly, parts 742, 745, and 774 of the Export Administration Regulations (15 CFR parts 730-799) are amended as follows: PART 742—[AMENDED] 1. The authority citation for 15 CFR part 742 is revised to read as follows: Authority: 50 U.S.C. app. 2401 *et seq.* ; 50 U.S.C. 1701 *et seq.* ; 18 U.S.C. 2510 *et seq.* ; 22 U.S.C. 3201 *et seq.* ; 42 U.S.C. 2139a; Sec. 901-911, Pub. L. 106-387; Sec. 221, Pub. L. 107-56; Sec. 1503, Pub. L. 108-11, 117 Stat. 559; E.O. 12058, 43 FR 20947, 3 CFR, 1978 Comp., p. 179; E.O. 12851, 58 FR 33181, 3 CFR, 1993 Comp., p. 608; E.O. 12938, 59 FR 59099, 3 CFR, 1994 Comp., p. 950; E.O. 13026, 61 FR 58767, 3 CFR, 1996 Comp., p. 228; E.O. 13222, 66 FR 44025, 3 CFR, 2001 Comp., p. 783; Presidential Determination 2003-23 of May 7, 2003, 68 FR 26459, May 16, 2003; Notice of August 3, 2006, 71 FR 44551 (August 7, 2006); Notice of October 27, 2006, 71 FR 64109 (October 31, 2006). 2. Section 742.2 is amended by adding a new paragraph (e), at the end of the section, to read as follows: § 742.2 Proliferation of chemical and biological weapons.
(e)*License application requirements and instructions.*
(1)General instructions for completing Form BIS-748P, Multipurpose Application, are provided in Supplement No. 1 to Part 748 of the EAR. When preparing applications for items controlled for chemical and biological reasons, pay particular attention to the instructions contained in paragraphs
(e)and
(f)of the Supplement that apply to entering “Quantity” and “Units,” respectively, on license applications. Paragraphs
(e)and
(f)require that, if an item is licensed in terms of “$ value” (refer to the “Unit” paragraph within the appropriate ECCN), the unit of quantity commonly used in the trade must also be shown on the license application. In such cases, Section 750.7 of the EAR provides that the quantity of commodities authorized is limited by the total dollar value as shown on the approved license and not by the quantity specified thereon. Although the EAR do not place a specific limitation on quantity in such cases, the total quantity that may be exported or reexported is limited, to a significant degree, by the fact that the EAR do not provide a shipping tolerance for items licensed by “dollar value” (see Section 750.11(b)(1) of the EAR) and require that the “unit price” indicated on the license application reflect the fair market value of the items listed on the application (see paragraph
(g)of Supplement No. 1 to part 748 of the EAR).
(2)Unique application and submission requirements for chemicals, medicinals, and pharmaceuticals are described in paragraph
(a)of Supplement No. 2 to part 748 of the EAR. PART 745—[AMENDED] 3. The authority citation for 15 CFR part 745 is revised to read as follows: Authority: 50 U.S.C. 1701 *et seq.* ; E.O. 12938, 59 FR 59099, 3 CFR, 1994 Comp., p. 950; Notice of October 27, 2006, 71 FR 64109 (October 31, 2006). Supplement No. 2 to Part 745 [Amended] 4. Supplement No. 2 to part 745 is amended by revising the undesignated center heading “List of States Parties as of March 25, 2006” to read “List of States Parties as of November 1, 2006” and by adding, in alphabetical order, the countries “Central African Republic” and “Comoros”. PART 774—[AMENDED] 5. The authority citation for 15 CFR part 774 is revised to read as follows: Authority: 50 U.S.C. app. 2401 *et seq.* ; 50 U.S.C. 1701 *et seq.* ; 10 U.S.C. 7420; 10 U.S.C. 7430(e); 18 U.S.C. 2510 *et seq.* ; 22 U.S.C. 287c; 22 U.S.C. 3201 *et seq.* ; 22 U.S.C. 6004; 30 U.S.C. 185(s), 185(u); 42 U.S.C. 2139a; 42 U.S.C. 6212; 43 U.S.C. 1354; 46 U.S.C. app. 466c; 50 U.S.C. app. 5; Sec. 901-911, Pub. L. 106-387; Sec. 221, Pub. L. 107-56; E.O. 13026, 61 FR 58767, 3 CFR, 1996 Comp., p. 228; E.O. 13222, 66 FR 44025, 3 CFR, 2001 Comp., p. 783; Notice of August 3, 2006, 71 FR 44551 (August 7, 2006). Supplement No. 1 to Part 774—[Amended] 6. In Supplement No. 1 to part 774 (the Commerce Control List), Category 1—Materials, Chemicals, “Microorganisms” & “Toxins,” ECCN 1C350 is amended by revising the parenthetical “(C.A.S. #667-43-0)” in paragraph b.23 under *Items* , in the List of Items Controlled, to read “(C.A.S. #677-43-0)”. 7. In Supplement No. 1 to part 774 (the Commerce Control List), Category 1—Materials, Chemicals, “Microorganisms” & “Toxins,” ECCN 1C351 is amended by revising the List of Items Controlled to read as follows: 1C351 Human and zoonotic pathogens and “toxins”, as follows (see List of Items Controlled). List of Items Controlled *Unit:* $ value. *Related Controls:*
(1)Certain forms of ricin and saxitoxin in 1C351.d.5. and d.6 are CWC Schedule 1 chemicals (see § 742.18 of the EAR). The U.S. Government must provide advance notification and annual reports to the OPCW of all exports of Schedule 1 chemicals. See § 745.1 of the EAR for notification procedures. See 22 CFR part 121, Category XIV and § 121.7 for additional CWC Schedule 1 chemicals controlled by the Department of State.
(2)All vaccines and “immunotoxins” are excluded from the scope of this entry. Certain medical products and diagnostic and food testing kits that contain biological toxins controlled under paragraph
(d)of this entry, with the exception of toxins controlled for CW reasons under d.5 and d.6, are excluded from the scope of this entry. Vaccines, “immunotoxins”, certain medical products, and diagnostic and food testing kits excluded from the scope of this entry are controlled under ECCN 1C991.
(3)For the purposes of this entry, only saxitoxin is controlled under paragraph d.6; other members of the paralytic shellfish poison family (e.g. neosaxitoxin) are classified as EAR99.
(4)Clostridium perfringens strains, other than the epsilon toxin-producing strains of Clostridium perfringens described in c.14, are excluded from the scope of this entry, since they may be used as positive control cultures for food testing and quality control.
(5)The Animal and Plant Health Inspection Service (APHIS), U.S. Department of Agriculture, and the Centers for Disease Control and Prevention (CDC), U.S. Department of Health and Human Services, maintain controls on the possession, use, and transfer within the United States of certain items controlled by this ECCN (for APHIS, see 7 CFR 331.3(c), 9 CFR 121.3(c), and 9 CFR 121.4(c); for CDC, see 42 CFR 73.3(c) and 42 CFR 73.4(c)). *Related Definitions:*
(1)For the purposes of this entry “immunotoxin” is defined as an antibody-toxin conjugate intended to destroy specific target cells (e.g., tumor cells) that bear antigens homologous to the antibody.
(2)For the purposes of this entry “subunit” is defined as a portion of the “toxin”. *Items:* a. Viruses, as follows: a.1. Chikungunya virus; a.2. Congo-Crimean haemorrhagic fever virus (a.k.a. Crimean-Congo haemorrhagic fever virus); a.3. Dengue fever virus; a.4. Eastern equine encephalitis virus; a.5. Ebola virus; a.6. Hantaan virus; a.7. Japanese encephalitis virus; a.8. Junin virus; a.9. Lassa fever virus a.10. Lymphocytic choriomeningitis virus; a.11. Machupo virus; a.12. Marburg virus; a.13. Monkey pox virus; a.14. Rift Valley fever virus; a.15. Tick-borne encephalitis virus (Russian Spring-Summer encephalitis virus); a.16. Variola virus; a.17. Venezuelan equine encephalitis virus; a.18. Western equine encephalitis virus; a.19. White pox; a.20. Yellow fever virus; a.21. Kyasanur Forest virus; a.22. Louping ill virus; a.23. Murray Valley encephalitis virus; a.24. Omsk haemorrhagic fever virus; a.25. Oropouche virus; a.26. Powassan virus; a.27. Rocio virus; a.28. St. Louis encephalitis virus; a.29. Hendra virus (Equine morbillivirus); a.30. South American haemorrhagic fever (Sabia, Flexal, Guanarito); a.31. Pulmonary and renal syndrome-haemorrhagic fever viruses (Seoul, Dobrava, Puumala, Sin Nombre); *or* a.32. Nipah virus. b. Rickettsiae, as follows: b.1. Bartonella quintana (Rochalimea quintana, Rickettsia quintana); b.2. Coxiella burnetii; b.3. Rickettsia prowasecki (a.k.a. Rickettsia prowazekii); *or* b.4. Rickettsia rickettsii. c. Bacteria, as follows: c.1. Bacillus anthracis; c.2. Brucella abortus; c.3. Brucella melitensis; c.4. Brucella suis; c.5. Burkholderia mallei (Pseudomonas mallei); c.6. Burkholderia pseudomallei (Pseudomonas pseudomallei); c.7. Chlamydia psittaci; c.8. Clostridium botulinum; c.9. Francisella tularensis; c.10. Salmonella typhi; c.11. Shigella dysenteriae; c.12. Vibrio cholerae; c.13. Yersinia pestis; c.14. Clostridium perfringens, epsilon toxin producing types; *or* c.15. Enterohaemorrhagic Escherichia coli, serotype O157 and other verotoxin producing serotypes. d. “Toxins”, as follows, and “subunits” thereof: d.1. Botulinum toxins; d.2. Clostridium perfringens toxins; d.3. Conotoxin; d.4. Microcystin (Cyanginosin); d.5. Ricin; d.6. Saxitoxin; d.7. Shiga toxin; d.8. Staphylococcus aureus toxins; d.9. Tetrodotoxin; d.10. Verotoxin and other Shiga-like ribosome inactivating proteins; d.11. Aflatoxins; d.12. Abrin; d.13. Cholera toxin; d.14. Diacetoxyscirpenol toxin; d.15. T-2 toxin; d.16. HT-2 toxin; d.17. Modeccin toxin; d.18. Volkensin toxin; *or* d.19. Viscum Album Lectin 1 (Viscumin). e. “Fungi”, as follows: e.1. Coccidioides immitis; *or* e.2. Coccidioides posadasii. 8. In Supplement No. 1 to part 774 (the Commerce Control List), Category 1—Materials, Chemicals, “Microorganisms” & “Toxins,” ECCN 1C353 is amended by revising the List of Items Controlled to read as follows: 1C353 Genetic elements and genetically-modified organisms, as follows (see List of Items Controlled). List of Items Controlled *Unit:* $ value. *Related Controls:* Vaccines that contain genetic elements or genetically modified organisms identified in this entry are controlled by ECCN 1C991. The Animal and Plant Health Inspection Service (APHIS), U.S. Department of Agriculture, and the Centers for Disease Control and Prevention (CDC), U.S. Department of Health and Human Services, maintain controls on the possession, use, and transfer within the United States of certain items controlled by this ECCN, including (but not limited to) genetic elements, recombinant nucleic acids, and recombinant organisms associated with the agents or toxins in ECCN 1C360 (for APHIS, see 7 CFR 331.3(c), 9 CFR 121.3(c), and 9 CFR 121.4(c); for CDC, see 42 CFR 73.3(c) and 42 CFR 73.4(c)). *Related Definition:* N/A. *Items:* a. Genetic elements, as follows: a.1. Genetic elements that contain nucleic acid sequences associated with the pathogenicity of microorganisms controlled by 1C351.a to .c, 1C352, 1C354, or 1C360; a.2. Genetic elements that contain nucleic acid sequences coding for any of the “toxins” controlled by 1C351.d or “sub-units of toxins” thereof. b. Genetically modified organisms, as follows: b.1. Genetically modified organisms that contain nucleic acid sequences associated with the pathogenicity of microorganisms controlled by 1C351.a to .c, 1C352, 1C354, or 1C360; b.2. Genetically modified organisms that contain nucleic acid sequences coding for any of the “toxins” controlled by 1C351.d or “sub-units of toxins” thereof. Technical Note: 1. “Genetic elements” include, inter alia, chromosomes, genomes, plasmids, transposons, and vectors, whether genetically modified or unmodified. 2. This ECCN does not control nucleic acid sequences associated with the pathogenicity of enterohaemorrhagic Escherichia coli, serotype O157 and other verotoxin producing strains, except those nucleic acid sequences that contain coding for the verotoxin or its sub-units. 3. “Nucleic acid sequences associated with the pathogenicity of any of the microorganisms controlled by 1C351.a to .c, 1C352, 1C354, or 1C360” means any sequence specific to the relevant controlled microorganism that: a. In itself or through its transcribed or translated products represents a significant hazard to human, animal or plant health; or b. Is known to enhance the ability of a microorganism controlled by 1C351.a to .c, 1C352, 1C354, or 1C360, or any other organism into which it may be inserted or otherwise integrated, to cause serious harm to human, animal or plant health. 9. In Supplement No. 1 to part 774 (the Commerce Control List), Category 1—Materials, Chemicals, “Microorganisms” & “Toxins,” ECCN 1C355 is amended by revising the List of Items Controlled to read as follows: 1C355 Chemical Weapons Convention
(CWC)Schedule 2 and 3 chemicals and families of chemicals not controlled by ECCN 1C350 or by the Department of State under the ITAR. List of Items Controlled *Unit:* Liters or kilograms, as appropriate. *Related Controls:* See also ECCNs 1C350 1C351, 1C395, and 1C995. See §§ 742.18 and 745.2 of the EAR for End-Use Certification requirements. *Related Definitions:* N/A. *Items:* a. CWC Schedule 2 chemicals and mixtures containing Schedule 2 chemicals: a.1. Toxic chemicals, as follows, and mixtures containing toxic chemicals: a.1.a. PFIB: 1,1,3,3,3-Pentafluoro-2-(trifluoromethyl)-1-propene (C.A.S. 382-21-8) and mixtures in which PFIB constitutes more than 1 percent of the weight of the mixture; a.1.b. [RESERVED] a.2. Precursor chemicals, as follows, and mixtures in which at least one of the following precursor chemicals constitutes more than 10 percent of the weight of the mixture: a.2.a. Chemicals, except for those listed in Schedule 1, containing a phosphorus atom to which is bonded one methyl, ethyl, or propyl (normal or iso) group but not further carbon atoms. Note: 1C355.a.2.a does *not* control Fonofos: O-Ethyl S-phenyl ethylphosphonothiolothionate (C.A.S. 944-22-9). a.2.b. FAMILY: N,N-Dialkyl (Me, Et, n-Pr or i-Pr) phosphoramidic dihalides; a.2.c. FAMILY: Dialkyl (Me, Et, n-Pr or i-Pr) N,N-Dialkyl (Me, Et, n-Pr, or i-Pr)-phosphoramidates; a.2.d. FAMILY: N,N-Dialkyl (Me, Et, n-Pr or i-Pr) aminoethyl-2-chlorides and corresponding protonated salts; a.2.e. FAMILY: N,N-Dialkyl (Me, Et, n-Pr or i-Pr) aminoethane-2-ols and corresponding protonated salts; Note: 1C355.a.2.e. does *not* control N,N-Dimethylaminoethanol and corresponding protonated salts (C.A.S. 108-01-0) or N,N-Diethylaminoethanol and corresponding protonated salts (C.A.S. 100-37-8). a.2.f. FAMILY: N,N-Dialkyl (Me, Et, n-Pr or i-Pr) aminoethane-2-thiols and corresponding protonated salts. b. CWC Schedule 3 chemicals and mixtures containing Schedule 3 chemicals: b.1. Toxic chemicals, as follows, and mixtures in which at least one of the following toxic chemicals constitutes 30 percent or more of the weight of the mixture: b.1.a. Phosgene: Carbonyl dichloride (C.A.S. 75-44-5); b.1.b. Cyanogen chloride (C.A.S. 506-77-4); b.1.c. Hydrogen cyanide (C.A.S. 74-90-8); b.1.d. Chloropicrin: Trichloronitromethane (C.A.S. 76-06-2). b.2. Precursor chemicals, as follows, and mixtures in which at least one of the following precursor chemicals constitutes 30 percent or more of the weight of the mixture: b.2.a.. [Reserved]; b.2.b. Methyldiethanolamine (C.A.S. 105-59-9). 10. In Supplement No. 1 to part 774 (the Commerce Control List), Category 1—Materials, Chemicals, “Microorganisms” & “Toxins,” ECCN 1C360 is amended by revising the ECCN heading and the List of Items Controlled to read as follows: 1C360 Select agents not controlled under ECCN 1C351, 1C352, or 1C354. List of Items Controlled *Unit:* $ value. *Related Controls:*
(1)All vaccines are excluded from the scope of this entry. Vaccines excluded from the scope of this entry are controlled under ECCN 1C991.
(2)Also see ECCNs 1C351 (AG-controlled human and zoonotic pathogens and “toxins”), 1C352 (AG-controlled animal pathogens), and 1C354 (AG-controlled plant pathogens).
(3)The Animal and Plant Health Inspection Service (APHIS), U.S. Department of Agriculture, and the Centers for Disease Control and Prevention (CDC), U.S. Department of Health and Human Services, maintain controls on the possession, use, and transfer within the United States of items controlled by this ECCN (for APHIS, see 7 CFR 331.3(b), 9 CFR 121.3(b), and 9 CFR 121.4(b); for CDC, see 42 CFR § 73.3(b) and 42 CFR 73.4(b)). *Related Definitions:* N/A. *Items:* Note: The control status of items listed in this ECCN is not affected by the exemptions or exclusions contained in the domestic possession, use, and transfer regulations maintained by APHIS (at 7 CFR part 331 and 9 CFR part 121) and/or CDC (at 42 CFR part 73). a. Human and zoonotic pathogens, as follows: a.1. Viruses, as follows: a.1.a. Central European tick-borne encephalitis viruses, as follows: a.1.a.1. Absettarov; a.1.a.2. Hanzalova; a.1.a.3. Hypr; a.1.a.4. Kumlinge; a.1.b. Cercopithecine herpesvirus 1 (Herpes B virus); a.1.c. Reconstructed replication competent forms of the 1918 pandemic influenza virus containing any portion of the coding regions of all eight gene segments; a.2. [Reserved]; b. Animal pathogens, as follows: b.1. Viruses, as follows: b.1.a. Akabane virus; b.1.b. Bovine spongiform encephalopathy agent; b.1.c. Camel pox virus; b.1.d. Malignant catarrhal fever virus; b.1.e. Menangle virus; b.2. Mycoplasma, as follows: b.2.a. Mycoplasma capricolum; b.2.b. Mycoplasma F38; b.3. Rickettsia, as follows: b.3.a. Erhlichia ruminantium (a.k.a. Cowdria ruminantium); b.3.b. [Reserved]. c. Plant pathogens, as follows: c.1. Bacteria, as follows: c.1.a. Candidatus Liberobacter africanus (a.k.a. Liberobacter africanus); c.1.b. Candidatus Liberobacter asiaticus (a.k.a. Liberobacter asiaticus); c.1.c. Xylella fastidiosa pv. citrus variegated chlorosis (CVC); c.2. Fungi, as follows: c.2.a. Peronosclerospora philippinensis; c.2.b. Sclerophthora rayssiae var. zeae; c.2.c. Synchytrium endobioticum. 11. In Supplement No. 1 to part 774 (the Commerce Control List), Category 1—Materials, Chemicals, “Microorganisms” & “Toxins,” ECCN 1C991 is amended by revising the List of Items Controlled to read as follows: 1C991 Vaccines, immunotoxins, medical products, diagnostic and food testing kits, as follows (see List of Items controlled) List of Items Controlled *Unit:* $ value. *Related Controls:*
(1)Medical products containing ricin or saxitoxin, as follows, are controlled for CW reasons under ECCN 1C351:
(a)Ricinus Communis Agglutinin <sup>II</sup> (RCA <sup>II</sup> ), also known as ricin D, or Ricinus Communis Lectin <sup>III</sup> (RCL <sup>III</sup> );
(b)Ricinus Communis Lectin <sup>IV</sup> (RCL <sup>IV</sup> ), also known as ricin E; or
(c)Saxitoxin identified by C.A.S. #35523-89-8.
(2)The export of a “medical product” that is an “Investigational New Drug” (IND), as defined in 21 CFR 312.3, is subject to certain U.S. Food and Drug Administration
(FDA)requirements that are independent of the export requirements specified in this ECCN or elsewhere in the EAR. These FDA requirements are described in 21 CFR 312.110 and must be satisfied in addition to any requirements specified in the EAR.
(3)Also see 21 CFR 314.410 for FDA requirements concerning exports of new drugs and new drug substances. *Related Definitions:* For the purpose of this entry, “immunotoxin” is defined as an antibody-toxin conjugate intended to destroy specific target cells (e.g., tumor cells) that bear antigens homologous to the antibody. For the purpose of this entry, “medical products” are:
(1)Pharmaceutical formulations designed for testing and human administration in the treatment of medical conditions,
(2)prepackaged for distribution as clinical or medical products, and
(3)approved by the U.S. Food and Drug Administration either to be marketed as clinical or medical products or for use as an “Investigational New Drug”
(IND)(see 21 CFR part 312). For the purpose of this entry, “diagnostic and food testing kits” are specifically developed, packaged and marketed for diagnostic or public health purposes. Biological toxins in any other configuration, including bulk shipments, or for any other end-uses are controlled by ECCN 1C351 or ECCN 1C360. For the purpose of this entry, “vaccine” is defined as a medicinal (or veterinary) product in a pharmaceutical formulation, approved by the U.S. Food and Drug Administration or the U.S. Department of Agriculture to be marketed as a medical (or veterinary) product or for use in clinical trials, that is intended to stimulate a protective immunological response in humans or animals in order to prevent disease in those to whom or to which it is administered. *Items:* a. Vaccines against items controlled by ECCN 1C351, 1C352, 1C353, 1C354, or 1C360; b. Immunotoxins containing items controlled by 1C351.d; c. Medical products containing botulinum toxins controlled by ECCN 1C351.d.1 or conotoxins controlled by ECCN 1C351.d.3; d. Medical products containing items controlled by ECCN 1C351.d (except botulinum toxins controlled by ECCN 1C351.d.1, conotoxins controlled by ECCN 1C351.d.3, and items controlled for CW reasons under 1C351.d.5 or .d.6); e. Diagnostic and food testing kits containing items controlled by ECCN 1C351.d (except items controlled for CW reasons under ECCN 1C351.d.5 or .d.6). 12. In Supplement No. 1 to part 774 (the Commerce Control List), Category 2—Materials Processing,” ECCN 2B350 is amended by revising the List of Items Controlled to read as follows: 2B350 Chemical manufacturing facilities and equipment, except valves controlled by 2A226 or 2A292, as follows (see List of Items Controlled). List of Items Controlled *Unit:* Equipment in number. *Related Controls:* The controls in this entry do not apply to equipment that is both:
(a)specially designed for use in civil applications (e.g., food processing, pulp and paper processing, or water purification); and
(b)inappropriate, by the nature of its design, for use in storing, processing, producing or conducting and controlling the flow of chemical weapons precursors controlled by 1C350. *Related Definitions:* For purposes of this entry the term “chemical warfare agents” are those agents subject to the export licensing authority of the U.S. Department of State, Directorate of Defense Trade Controls. (See 22 CFR part 121.) *Items:* a. Reaction vessels or reactors, with or without agitators, with total internal (geometric) volume greater than 0.1 m 3 (100 liters) and less than 20 m 3 (20,000 liters), where all surfaces that come in direct contact with the chemical(s) being processed or contained are made from any of the following materials: a.1. Alloys with more than 25% nickel and 20% chromium by weight; a.2. Fluoropolymers; a.3. Glass (including vitrified or enameled coating or glass lining); a.4. Nickel or alloys with more than 40% nickel by weight; a.5. Tantalum or tantalum alloys; a.6. Titanium or titanium alloys; a.7. Zirconium or zirconium alloys; or a.8. Niobium (columbium) or niobium alloys. b. Agitators for use in reaction vessels or reactors described in 2B350.a, and impellers, blades or shafts designed for such agitators, where all surfaces that come in direct contact with the chemical(s) being processed or contained are made from any of the following materials: b.1. Alloys with more than 25% nickel and 20% chromium by weight; b.2. Fluoropolymers; b.3. Glass (including vitrified or enameled coatings or glass lining); b.4. Nickel or alloys with more than 40% nickel by weight; b.5. Tantalum or tantalum alloys; b.6. Titanium or titanium alloys; b.7. Zirconium or zirconium alloys; or b.8. Niobium (columbium) or niobium alloys. c. Storage tanks, containers or receivers with a total internal (geometric) volume greater than 0.1 m 3 (100 liters) where all surfaces that come in direct contact with the chemical(s) being processed or contained are made from any of the following materials: c.1. Alloys with more than 25% nickel and 20% chromium by weight; c.2. Fluoropolymers; c.3. Glass (including vitrified or enameled coatings or glass lining); c.4. Nickel or alloys with more than 40% nickel by weight; c.5. Tantalum or tantalum alloys; c.6. Titanium or titanium alloys; c.7. Zirconium or zirconium alloys; or c.8. Niobium (columbium) or niobium alloys. d. Heat exchangers or condensers with a heat transfer surface area of less than 20 m 2 , but greater than 0.15 m 2 , and tubes, plates, coils or blocks (cores) designed for such heat exchangers or condensers, where all surfaces that come in direct contact with the chemical(s) being processed are made from any of the following materials: d.1. Alloys with more than 25% nickel and 20% chromium by weight; d.2. Fluoropolymers; d.3. Glass (including vitrified or enameled coatings or glass lining); d.4. Graphite or carbon-graphite; d.5. Nickel or alloys with more than 40% nickel by weight; d.6. Silicon carbide; d.7. Tantalum or tantalum alloys; d.8. Titanium or titanium alloys; d.9. Titanium carbide; d.10. Zirconium or zirconium alloys; or d.11. Niobium (columbium) or niobium alloys. e. Distillation or absorption columns of internal diameter greater than 0.1 m, and liquid distributors, vapor distributors or liquid collectors designed for such distillation or absorption columns, where all surfaces that come in direct contact with the chemical(s) being processed are made from any of the following materials: e.1. Alloys with more than 25% nickel and 20% chromium by weight; e.2. Fluoropolymers; e.3. Glass (including vitrified or enameled coatings or glass lining); e.4. Graphite or carbon-graphite; e.5. Nickel or alloys with more than 40% nickel by weight; e.6. Tantalum or tantalum alloys; e.7. Titanium or titanium alloys; e.8. Zirconium or zirconium alloys; or e.9. Niobium (columbium) or niobium alloys. f. Remotely operated filling equipment in which all surfaces that come in direct contact with the chemical(s) being processed are made from any of the following materials: f.1. Alloys with more than 25% nickel and 20% chromium by weight; or f.2. Nickel or alloys with more than 40% nickel by weight. g. Valves with nominal sizes greater than 1.0 cm (.4 in.), and casings (valve bodies) or preformed casing liners designed for such valves, in which all surfaces that come in direct contact with the chemical(s) being processed or contained are made from any of the following materials: g.1. Nickel or alloys with more than 40% nickel by weight; g.2. Alloys with more than 25% nickel and 20% chromium by weight; g.3. Fluoropolymers; g.4. Glass or glass lined (including vitrified or enameled coatings); g.5. Tantalum or tantalum alloys; g.6. Titanium or titanium alloys; g.7. Zirconium or zirconium alloys; or g.8. Niobium (columbium) or niobium alloys. h. Multi-walled piping incorporating a leak detection port, in which all surfaces that come in direct contact with the chemical(s) being processed or contained are made from any of the following materials: h.1. Alloys with more than 25% nickel and 20% chromium by weight; h.2. Fluoropolymers; h.3. Glass (including vitrified or enameled coatings or glass lining); h.4. Graphite or carbon-graphite; h.5. Nickel or alloys with more than 40% nickel by weight; h.6. Tantalum or tantalum alloys; h.7. Titanium or titanium alloys; h.8. Zirconium or zirconium alloys; or h.9. Niobium (columbium) or niobium alloys. i. Multiple-seal and seal-less pumps with manufacturer's specified maximum flow-rate greater than 0.6 m 3 /hour, or vacuum pumps with manufacturer's specified maximum flow-rate greater than 5 m 3 /hour (under standard temperature (273 K (0 °C)) and pressure (101.3 kPa) conditions), and casings (pump bodies), preformed casing liners, impellers, rotors or jet pump nozzles designed for such pumps, in which all surfaces that come into direct contact with the chemical(s) being processed are made from any of the of the following materials: i.1. Alloys with more than 25% nickel and 20% chromium by weight; i.2. Ceramics; i.3. Ferrosilicon; i.4. Fluoropolymers; i.5. Glass (including vitrified or enameled coatings or glass lining); i.6. Graphite or carbon-graphite; i.7. Nickel or alloys with more than 40% nickel by weight; i.8. Tantalum or tantalum alloys; i.9. Titanium or titanium alloys; i.10. Zirconium or zirconium alloys; or i.11. Niobium (columbium) or niobium alloys. j. Incinerators designed to destroy chemical warfare agents, chemical weapons precursors controlled by 1C350, or chemical munitions having specially designed waste supply systems, special handling facilities and an average combustion chamber temperature greater than 1000 °C in which all surfaces in the waste supply system that come into direct contact with the waste products are made from or lined with any of the following materials: j.1. Alloys with more than 25% nickel and 20% chromium by weight; j.2. Ceramics; or j.3. Nickel or alloys with more than 40% nickel by weight. Technical Note: Carbon-graphite is a composition consisting primarily of graphite and amorphous carbon, in which the graphite is 8 percent or more by weight of the composition. Dated: November 16, 2006. Christopher A. Padilla, Assistant Secretary for Export Administration. [FR Doc. E6-19825 Filed 11-22-06; 8:45 am] BILLING CODE 3510-33-P DEPARTMENT OF TRANSPORTATION Federal Highway Administration 23 CFR Part 634 [FHWA Docket No. FHWA-2005-23200] RIN 2125-AF11 Worker Visibility AGENCY: Federal Highway Administration (FHWA), DOT. ACTION: Final rule. SUMMARY: Pursuant to Section 1402 of the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU), this final rule establishes a policy for the use of high-visibility safety apparel. The FHWA establishes a new Part in title 23, Code of Federal Regulations
(CFR)that requires the use of high-visibility safety apparel and provides guidance on its application. This rulemaking applies only to workers who are working within the rights-of-way of Federal-aid highways. The FHWA is taking this action to decrease the likelihood of fatalities or injuries to workers on foot who are exposed either to traffic (vehicles using the highway for purposes of travel) or to construction vehicles or equipment while working within the rights-of-way of Federal-aid highways. DATES: *Effective Date:* This final rule is effective November 24, 2008. The incorporation by reference of the publication listed in this regulation is approved by the Director of the Office of the Federal Register as of November 24, 2008. FOR FURTHER INFORMATION CONTACT: Mr. Hari Kalla, Office of Transportation Operations,
(202)366-5915; or Mr. Raymond W. Cuprill, Office of the Chief Counsel,
(202)366-0791, U.S. Department of Transportation, Federal Highway Administration, 400 Seventh Street, SW., Washington, DC 20590. Office hours are from 7:45 a.m. to 4:15 p.m., e.t., Monday through Friday, except Federal holidays. SUPPLEMENTARY INFORMATION: Electronic Access This document, the notice of proposed rulemaking (NPRM), and all comments received may be viewed online through the Document Management System
(DMS)at *http://dms.dot.gov.* The DMS is available 24 hours each day, 365 days each year. Electronic submission and retrieval help and guidelines are available under the help section of the Web site. An electronic copy of this document may also be downloaded from the Office of the Federal Register's home page at: *http://www.archives.gov* and the Government Printing Office's Web page at: *http://www.access.gpo.gov/nara.* Background On April 24, 2006, at 71 FR 20925, the FHWA published a NPRM proposing to establish a policy for the use of high-visibility safety apparel for workers who are working within the Federal-aid highway rights-of-way. This NPRM proposed regulations implementing the requirements of Section 1402 of the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU) (Pub. L. 109-59; August 10, 2005), which directed the Secretary of Transportation to, within one year, issue regulations to decrease the likelihood of worker injury and maintain the free flow of vehicular traffic by requiring workers whose duties place them on or in close proximity to a Federal-aid highway to wear high-visibility safety apparel. The comment period for the NPRM closed on June 23, 2006. There has been an increase in the amount of maintenance and reconstruction of the nation's highways that is being accomplished in stages while traffic continues to use a portion of the street or highway for purposes of travel. This has resulted in an increase in the exposure of workers on foot to high-speed traffic and a corresponding increase in the risk of injury or death for highway workers. High visibility is one of the most prominent needs for workers who must perform tasks near moving vehicles or equipment. The need to be seen by those who drive or operate vehicles or equipment is recognized as a critical issue for worker safety. The sooner a worker in or near the path of travel is seen, the more time the operator has to avoid an incident. The FHWA recognized this fact and included language in the 2000 Edition of the Manual on Uniform Traffic Control Devices (MUTCD) 1 to address this issue. This text in the 2000 MUTCD led some agencies to adopt policies and specifications requiring workers to wear high-visibility vests or shirts on their highway projects. The American National Standards Institute
(ANSI)also released ANSI 107-1999, 2 a standard for high visibility garments. 1 Manual on Uniform Traffic Control Devices (MUTCD) is recognized as the national standard for all traffic control devices installed on any street, highway, or bicycle trail open to public travel. It is available at *http://www.mutcd.fhwa.dot.gov.* 2 ANSI 107-1999 is the nationally recognized standard for high-visibility garments developed in conjunction with the International Safety Equipment Association. Copies may be obtained at: *http://www.safetyequipment.org/hivisstd.htm.* The FHWA recognized the need for a more specific recommendation and included language to that effect in the 2003 Edition of the MUTCD. As a result of the text in the 2003 MUTCD, many agencies have revised their policies to require their employees to wear ANSI Class 2 safety apparel at all times and they are revising their specifications to require contractors' employees to wear compliant safety apparel also. Although the text was made more specific in the 2003 MUTCD, it was still a recommendation rather than a requirement and some agencies have, therefore, not incorporated the use of high-visibility safety apparel into their policies and contract documents. Summary of Comments The FHWA received 117 letters submitted to the docket, containing over 300 individual comments. We received comments from State and local police and sheriffs departments, State Departments of Transportation (DOTs), city and county government agencies, consulting firms, private industry, associations, other organizations, and individual private citizens. The FHWA has reviewed and analyzed all the comments received. The significant comments and summaries of the FHWA's analyses and determinations are discussed below. General comments are discussed first, followed by discussion of significant comments and adopted changes in each of the individual sections of Part 634. Discussion of General Comments The FHWA received many comments in agreement with the proposed rule to improve highway worker safety and the addition of Part 634 to title 23, CFR. The FHWA received positive comments from the Iowa, Missouri, Nebraska, Ohio, West Virginia, and Wisconsin State Departments of Transportation (DOTs), the legal counsel of the Western State DOTs (representing ID, MT, ND, SD, and WY DOTs), the City of Thornton, Colorado, and the Lake County, Illinois DOT. The American Association of State Highway Transportation Officials (AASHTO), the American Traffic Safety Services Association (ATSSA), the Associated General Contractors of America, the International Safety Equipment Association (ISEA), the Laborers' Health and Safety Fund of North America, the International Union of Police Associations AFL-CIO, the Kansas Highway Patrol, the Henderson, North Carolina Police Department, the Southern Company (representing Alabama, Georgia, Gulf, and Mississippi electric utility companies), the Advocates for Highway and Auto Safety, the Alabama Struck-By Alliance, two sign manufacturers, and three private citizens also provided positive comments regarding the intent of the proposed rulemaking. The FHWA received one comment from the Associated General Contractors, New York State Chapter, strongly opposed to the proposed rulemaking, stating that it is overly broad. Enforcing Compliance With the Rule The Iowa, Minnesota, Virginia, West Virginia, and Wyoming DOTs, the legal counsel of the Western State DOTs, and AASHTO all provided comments opposed to the discussion in the NRPM regarding the withholding of payments to States of Federal funds on Federal-aid highway projects in order to achieve compliance with 23 CFR Part 634. The discussion of FHWA's authority to withhold funds in the NPRM was intended to describe the agency's lack of direct authority to enforce high-visibility garment requirements on all workers on or in close proximity to a Federal-aid highway and to preserve the Occupational Safety and Health Administration's (OSHA's) authority over such workers. It was not meant to signal the desire of the FHWA to impose funding sanctions in all instances of possible non-compliance. Therefore, it is not the FHWA's intent to impose funding sanctions on Federal-aid recipients as a result of non-compliance with the high-visibility garment requirements by workers not subject to those recipients' control or jurisdiction. Also, the rule is not an unfunded mandate; it is a requirement or standard applicable to highways that receive Federal-aid, no different from other requirements or standards applicable to these highways. A summary of the significant comments for each section of 23 CFR Part 634 is included in the following discussion. Discussion of Comments Regarding Section 634.1 Purpose Enhancing Worker Visibility Beyond the Use of High Visibility Clothing The Virginia DOT commented that the proposed rule leaves out a key part of the Section 1402 SAFETEA-LU directive by leaving out language that addresses the requirement to “* * * maintain the free flow of vehicular traffic.” The Virginia DOT believes that the wearing of high-visibility apparel does not prevent vehicles or equipment from striking workers in the roadway, and that other measures, such as engineering controls, administrative controls, and/or work practices provide greater opportunity for hazard mitigation and the free flow of traffic, and should be implemented prior to using protective clothing. The FHWA agrees that engineering and work practice controls are important, and these are covered elsewhere in 23 CFR Part 630, Subpart J. Also, the FHWA is working on a separate NPRM that proposes to revise 23 CFR Part 630 in response to section 1110 of SAFETEA-LU. This proposed rule would address the use of law enforcement, positive protection measures, and the installation and maintenance of temporary traffic control devices. These measures should also improve worker safety during construction and maintenance operations. High visibility is one of the most prominent needs for workers who must perform tasks near moving vehicles or equipment. The need to be seen by those who drive or operate vehicles or equipment is recognized as a critical issue for worker safety. Since workers must devote their attention to completing their assigned tasks and might not completely focus on the hazardous surroundings in which they are working, it is imperative that the approaching motorist or equipment operator be able to see and recognize the worker. The Laborers' Health and Safety Fund of North America suggested that worker visibility can also be enhanced by other means beyond high-visibility garments, such as proper illumination during night work, the use of back-up video cameras/radar systems on construction vehicles, internal traffic control plans within work zones, and spotters to improve the visibility of construction workers in work zones who could be backed over by construction vehicles. The FHWA agrees that there are other methods that are good practice; however, it is appropriate to limit the scope of this rule to enhancing worker visibility by requiring use of high- visibility garments. This rule applies to all workers (as defined in Section 634.2) in all situations within the public right-of-way and is not limited to work zone applications. Application to All Highways The FHWA received several comments suggesting the requirement be extended to all workers on all roadways. The State DOTs of Missouri, Ohio, and Wisconsin, the Lake County, Illinois DOT, the National Committee on Uniform Traffic Control Devices (NCUTCD), ATSSA, ISEA, the International Union of Police Associations AFL-CIO, the Alabama Struck-By-Alliance, and three equipment manufacturers suggested that the language of this rule be added to the MUTCD in order to maintain consistency of the use of high-visibility apparel on all roadways, and to have broader access to the information. The Wyoming DOT and the legal counsel of the Western State DOTs agreed with the proposed language that limits the rule to Federal-aid highways. The Iowa DOT suggested that the language of the rule only be included in the MUTCD, and not as a new Part 634 of 23 Title CFR. This rule is merely implementing Section 1402 of SAFETEA-LU, which directed the Secretary of Transportation to issue regulations to decrease the likelihood of worker injury and maintain the free flow of vehicular traffic by requiring workers whose duties placed them on or in close proximity to a Federal-aid highway to wear high-visibility apparel. A revision to the MUTCD would be the appropriate process for extending this requirement to all roads. This would require a separate rulemaking effort. The FHWA will consider these comments as part of the process for proposing amendments to the next edition of the MUTCD. Discussion of Comments Regarding Section 634.2 Definitions Definition of “Close Proximity” The Iowa DOT opposed including the entire Federal-aid highway right-of-way in the rule. It believes that some workers are at the extreme edges of the right-of-way when performing maintenance duties and are not in close proximity to moving traffic or construction or maintenance equipment, and that their duties could be more hazardous when wearing Class 2 apparel, since it might snag on structures or equipment. The FHWA reinforces that the definition of “highway” in the MUTCD includes the entire area within the right-of-way. Therefore, for the purposes of Part 634, the FHWA interprets the rule to apply to all workers who are within the public right-of-way of a Federal-aid highway, since they all deserve the same safety considerations. The rule does allow agencies the flexibility to add tear-away and/or other garment design features as deemed appropriate to address specific work environments. See additional discussion under Definition of “high-visibility safety apparel.” Definition of “Conspicuity” Although originally included in the NPRM, the FHWA removes the definition of the word “conspicuity” in the language of 23 CFR 634, since the definition is not necessary as part of the rule. The word “conspicuity” as used in the definition of “high-visibility clothing” is no different than its generally accepted definition, which can be found in any dictionary. Definition of “High-Visibility Safety Apparel” The FHWA received 28 comments regarding the definition of “high-visibility safety apparel.” The legal counsel of the Western State DOTs as well as ISEA, the Alabama Struck-By Alliance, the Advocates for Highway and Auto Safety, and three equipment manufacturers agree that high-visibility garments that meet the ANSI/ISEA 107-2004 3 Class 2 requirements provide the intended, appropriate visibility for highway workers. 3 “American National Standard for High-Visibility Safety Apparel and Headwear”, published by the International Safety Equipment Association, 1901 N. Moore Street, Arlington, VA 22209 *(http://www.safetyequipment.org).* Allowing Flexibility in Choice of Garment Type The Iowa DOT opposed the definition of “high-visibility safety apparel,” stating that State DOTs should have the flexibility to make their own determination of the specific work operations that require the wearing of ANSI Class 2 apparel. In addition, the Iowa DOT commented that the State DOTs should be allowed flexibility to make their own determination of the specification requirements. The Associated General Contractors of America and the Associated General Contractors, New York State Chapter commented that the FHWA should allow more flexibility in the choice of garments and allow garments rated as less than Class 2. These commenters indicate that Class 2 garments have not been shown to increase worker visibility during the daytime, and the excessive heat conditions to which workers are often exposed warrant the use of lighter-weight Class 1 garments. The 2003 MUTCD requires all flaggers and recommends all other workers in work zones to wear Class 2 during daytime operations. The FHWA's discussions with State DOTs indicate that the majority of States, including southern States, require their workers to wear ANSI 107-1999 Class 2 or Class 3 high-visibility garments. The FHWA is not aware of any increase in heat-related illnesses due to Class 2 or Class 3 garments. The FHWA believes that Class 2 or Class 3 high-visibility garments are appropriate for work environments on Federal-aid highways The Southern Company, which represents electric utility companies in the south, opposes the proposed rule stating that the type of high-visibility garments that should be worn should depend upon the situation in which the work is being performed, because the time of day that the work is being performed, the exposure to various highway speeds, and the periods of poor visibility resulting from weather and nighttime work are quite variable. The company chose to adopt and use the ANSI 107-1999 Class 3 garments based upon the reference to the ANSI 107-1999 standard in the 2003 MUTCD. The FHWA believes that garments meeting the requirements set forth in the ANSI 107-1999 Class 3 equal or exceed the requirements for the ANSI 107-2004 Class 2 garment, and therefore meet the minimum requirements contained in this rulemaking. The Southern Company also requested that the FHWA recommend that the ANSI/ISEA standards committee provide the electric utility industry a forum to express its unique needs to protect utility personnel along roadways while still incorporating high-visibility into garments already required by other standards or to request consideration of other alternatives. This request is beyond the scope of this rulemaking. Additionally, the Associated General Contractors
(AGC)of America commented that there is an OSHA regulatory requirement for tear-away construction of vests so that workers do not get hung up on snags if they must jump clear of dangerous situations. Since most Class 2 vests do not meet the tear-away requirement, the AGC suggests there should be some flexibility to use Class 1 garments instead. The FHWA uses the Class 2 garment as a minimum based on the conditions where they will be worn. The ANSI 107-2004 Class 2 standard does not prohibit a tear-away feature on the garment. The standard specifies the amount of background and retro-reflective material required for each class of garment, but leaves other design features open for agencies to specify to meet special needs. The Illinois DOT, for example, has a specification for a tear-away ANSI 107-2004 Class 2 garment that uses Velcro fasteners on the shoulder and side seams to enable the wearer to quickly remove the garment if it becomes tangled or snagged on equipment. The International Union of Police Associations AFL-CIO stated that the ANSI Class 2 vest is not designed for the specific needs of law enforcement personnel, and that the vest generally interferes with police officers' unique needs to access articles on their duty belt while on duty. The FHWA recognizes this concern and has modified the final rule to include an exemption for law enforcement officers engaged in law enforcement activities, such as traffic stops and pursuit and apprehension of suspects. See additional discussion under Definition of “Worker”—Law Enforcement. The New York State DOT (NYSDOT) opposes the use of Class 3 apparel and is a strong proponent of Class 2 apparel for night work and for those who perform traffic control. The NYSDOT states that it is not practical to wear Class 3 apparel at all times, especially near specialized equipment and during extreme hot weather conditions where workers are not exposed to traffic or night conditions, and that Class 2 provides very good conspicuity. The NYSDOT suggests that high-visibility apparel be defined as clothing that meets the Performance Class 2 requirements of ANSI 107-2004 colors of yellow-green, orange-red, or red. The NCUTCD also recommended that the language be revised to “all apparel with a minimum of Class 2 risk exposure.” The FHWA reiterates that the final rule requires Class 2 or Class 3 type garments. The requirement in the rule is not limited to only Class 3. Class 2 Garments With Supplemental Features The Laborers' Health and Safety Fund of North America agreed with the proposed definition, but felt that the rule should extend to include Class 2 garments supplemented by active illumination. The FHWA believes that it is appropriate to reference the ANSI standard, since it is currently the only recognized standard for high-visibility garments. There are no performance standards for garments containing active illumination technologies at this time. The Laborers' Health and Safety Fund of North America also suggested that the FHWA should require that workers wear reflective material on arms, hands, or legs that continually move in order to easily identify them as persons, as opposed to barrels or cones. The FHWA agrees that added retroreflective material on arms, hands or legs could increase the visibility of workers in some cases and believes the rule provides agencies with the flexibility to use Class 3 garments, or additional reflective bands for arms and legs. Class 3 Garments The Caltrans Safety in Work Zones Task Force suggested that ANSI Class 3 safety vests and apparel should be required for all employees at all times working in the dynamic transportation environment. The FHWA believes that Class 2 or Class 3 high-visibility garments are appropriate for work environments on Federal-aid highways. These are minimum requirements and do not prohibit agencies from adopting more stringent requirements. Impending ANSI/ISEA Standard for a Public Safety Vest The National Traffic Incident Management Coalition, the Florida Highway Patrol, and the International Safety Equipment Association
(ISEA)strongly recommend that the policy recognize the impending ANSI/ISEA standard for a Public Safety Vest (ANSI 107-200x). The proposed Public Safety Vest standard, which is currently open for public comment, maintains a similar amount of visible material prescribed by the ANSI 107-2004 Class 2, but allows for specific public safety responder needs and will help facilitate the procurement process for State and local agencies. The FHWA appreciates the on-going development of the ANSI/ISEA Standard for a Public Safety Vest; however, a proposed standard cannot be referenced in this rulemaking. However, the FHWA might consider revising this rule once these standards go into effect. Enhancements to Garments and Color Choice The City of Thornton, Colorado suggested that several enhancements be included in the definition of “high-visibility safety apparel” that include placing identification panels and different color-coded reflective stripes on the high-visibility apparel to help identify the wearer's agency, especially at incident management scenes where multiple agencies respond. The FHWA reiterates that this rule is to improve worker visibility. The addition of identification panels does not have an impact on worker visibility. Furthermore, agencies have flexibility to add reflective identification panels on Class 2 or Class 3 high-visibility garments. An equipment manufacturer suggested that the color “lime green” be used for all safety apparel. ANSI Standard 107-2004 for Class 2 or Class 3 permits lime green, orange, or a combination of these two colors. Agencies have flexibility to specify either of these colors or a combination. Definition of “Workers” The FHWA received many comments regarding the definition of “workers,” including requests that certain classes of individuals be included or excluded in the definition. The Advocates for Highway and Auto Safety
(AHAS)generally agree with the definition; however, it also recommended that the definition be expanded to include a serial listing of examples of vulnerable workers within highway rights-of-way in order to reduce doubts or remove ambiguity concerning the classes of individuals who are required to wear high-visibility apparel. The AHAS suggests adding vehicle service responders such as tow truck drivers or other roadside vehicle service responders, media representatives when covering news events or similar actions within highway rights-of-way, military personnel when on foot, and commercial drivers on foot within the right-of-way who are with disabled trucks or motor coaches. The FHWA believes that the term “responders to incidents” is inclusive of a majority of the groups identified in this comment, including media representatives. The Ohio DOT suggests that the definition of “workers” be refined, since there are various jobs that workers might have within the right-of-way, such as working with wood chippers or other equipment with moving parts, where a loose garment such as a safety vest could pose a potential hazard. The FHWA believes the definition of workers includes all workers whose duties place them within the right-of-way. The high-visibility garments can be fitted properly and be designed with tear-away features to minimize the risk of becoming entangled in equipment. See previous discussion under the heading “ *Allowing Flexibility in Choice of Garment Type* ” Volunteers Working Within the Right-of-Way of Federal-Aid Highways The Virginia DOT opposes the definition of “worker” encompassing both personnel being paid for duties as well as personnel volunteering for duties along the highway, such as Adopt-A-Highway volunteers picking up litter. Extending the definition to include volunteers would significantly increase the cost of safety vests that the Virginia DOT supplies to volunteers. The FHWA reiterates that the rule applies to all workers, whether paid or volunteer, who are within the rights-of-way of Federal-aid highways. The Adopt-A-Highway volunteers are exposed to traffic while doing the cleanup duties within the right-of-way and should be afforded the same measure of safety as other workers. These workers should already have high visibility garments, therefore, compliance with this rule would require upgrading of the existing garments. The two-year compliance period has been provided to minimize the financial impacts to the agencies. Additionally, States and local agencies may use funding available under Section 402 of Chapter 4 of Title 23, the State and Community Highway Safety Grant Program, to purchase or replace high-visibility garments for worker safety when this purchase is part of an eligible Section 402 highway safety project included in the State's approved highway plan. Scheduled Workers The legal counsel for the Western State DOTs recommended specific wording to change the definition of “workers” to focus the rule on those who use the highway right-of-way on a planned and scheduled basis, not on an erratic basis. The legal counsel's opinion is that this would alleviate some of the concerns expressed by the law enforcement community, and would be consistent with Section 6D.03 of the MUTCD. The FHWA believes that the rule should also encompass those workers whose duties cannot be scheduled, such as responders to incidents. High visibility is one of the most prominent safety needs for workers who must perform tasks near moving vehicles or equipment. The sooner a worker in or near the path of travel is seen, the more time the operator has to avoid an incident. Postal Carriers and Delivery Truck Drivers The National Traffic Incident Management Coalition and a private citizen opposed the definition of “worker,” stating that it would have the unintended consequence of applying the rule to persons who are not intended to be covered, such as postal letter carriers, delivery truck drivers, etc. They suggested specific language to reword the definition, including deleting the last phrase of the definition, “any other personnel whose duties put them on Federal-aid highway right-of-way,” and substituting “such as” for “including.” The FHWA agrees with these editorial changes, and revises the text in the final rule to specify more clearly the types of workers that are covered by the definition. Government Employees and Contractors The Nebraska Department of Roads supports the rule for their own employees and contractors; however, it opposes extending the rule to those workers not under the Department's direct authority, such as utility crews, responders to incidents, and law enforcement personnel. The FHWA believes that all workers within the public right-of-way of Federal-aid highways deserve the same safety considerations. Additionally, Section 1402 of SAFETEA-LU, directed the Secretary of Transportation to issue regulations requiring workers whose duties place them on or in proximity to a Federal-aid highway to wear high-visibility apparel. The SAFETEA-LU provision does not distinguish between State DOT workers or utility crews or law enforcement officers. Surveyors The California DOT commented that retroreflective material used near survey prisms as part of Electronic Distance Meter
(EDM)technology can result in erroneous measurements, and therefore increase the time required for surveyors to perform their work while exposed to traffic conditions. As a result, the California DOT suggests adding language to the rule to exempt surveyors from wearing retroreflective material during daylight hours that causes interference with survey instruments, otherwise surveyors must comply with the high-visibility safety apparel specifications. Surveying activities often occur well in advance of other work zone activities. The surveyors are often on or near the roadway without the benefit of extensive temporary traffic control devices. They will normally use one advance warning sign and strobe lights on their vehicle to alert approaching vehicles of their presence. Therefore, the FHWA believes that surveyors should be subjected to the same regulations as other workers within the public right-of-way of Federal-aid highways. The FHWA recognizes that the retroreflective material on high-visibility garments, in some cases, might cause operational difficulty. The FHWA believes, however, that surveying procedures can be modified that will minimize the chance of the reflective stripe on the garment introducing errors in the measurements taken with these instruments. Responders to Incidents The Lake County, Illinois DOT, the Blue Township, Kansas Fire-Rescue, and a fire equipment company all supported including first responders, such as emergency medical services
(EMS)and fire department personnel in the definition of “workers.” The Iowa DOT opposed this inclusive definition, stating that the requirement to wear an additional layer of apparel over their existing apparel might be hazardous to some professionals, such as fire fighters. The Missouri and Wisconsin DOTs also opposed this inclusive definition, stating that the policy should not be mandatory for incident responders, and that there might be some justifiable reasons as to why some entities do not wear high-visibility apparel. Similarly, the Virginia DOT opposed the definition, since it interprets the policy to encompass both personnel being paid for duties as well as personnel volunteering for duties along the roadway, such as a rescue volunteer. AASHTO suggested adding flexibility to the rule to encourage EMS personnel to wear high-visibility clothing when in work zones and in proximity to construction vehicles or equipment, but not mandate it for all occasions whenever they are outside of their vehicle. The FHWA believes that all workers within the public right-of-way of Federal-aid highways deserve the same safety considerations. High visibility is one of the most prominent needs for workers who must perform their tasks near moving vehicles or equipment. The need to be seen by those who drive or operate vehicles or equipment is recognized as a critical issue for worker safety. Workers, including responders to incidents, must devote their attention to completing their assigned tasks and might not completely focus on the hazardous surroundings where they are working. It is imperative that the approaching motorist or equipment operator be able to see and recognize the worker. The sooner a worker in or near the path of travel is seen, the more time the operator has to avoid an accident. The ISEA is in the final stages of publishing a new standard that establishes performance criteria for high-visibility vests for the public safety sector. Accordingly, the ISEA requests that the FHWA consider permitting the use of garments that meet an equivalent standard to ANSI/ISEA 107-2004 for workers in the fire service only while working on Federal-aid highways. An equipment manufacturer opposes the ruling, stating that there are some Class 1 garments that would be more compatible with the occupational environment faced by some emergency responders than the Class 2 or Class 3 apparel mandated in the proposed rule. In addition, the equipment manufacturer suggests that due to the competing hazards that exist for workers, such as heat and flame, that the FHWA consider incorporating worker categories, or at a minimum, exempt fire services responders, and instead encourage best practices in the use of high-visibility apparel in emergency situations in accordance with hazard assessments or specific environments. The FHWA acknowledges that the incident response community has been working with the ANSI staff to develop a garment that will meet both the visibility requirements and allow access to the necessary equipment carried by incident responders. The ANSI/ISEA Standard for Public Safety Vest (ANSI 207-200X) is under development at this time. Therefore this impending standard cannot be referenced in this rule. However, the FHWA might consider revising this rule once these standards go into effect. Additionally, the ANSI 107-2004 standard specifies the amount of background and retroreflective material required for each class of garment, but leaves other design features open for agencies to specify to meet special needs. If an agency determines that the material must be fire resistant, it can include a provision in the specification for the garments that they purchase. Law Enforcement The FHWA received 175 comments to the docket regarding the implications of this rule on law enforcement personnel. The Advocates for Highway and Auto Safety, the Northern Kentucky University Police, and an equipment manufacturer supported the inclusion of law enforcement personnel who are working on Federal-aid highways as workers who should wear high-visibility apparel. The Advocates for Highway and Auto Safety's comments state that law enforcement personnel who are involved in situations involving criminal activity should be included in the policy, since claims that high-visibility garments would cause them to be a greater target are not documented, and that law enforcement should have the same protection as other professions when working adjacent to a highway where the risk of being struck by a vehicle is high. Overarching comments from State and local police, national police organizations, and State DOTs indicated a strong need for recognizing the many roles that law enforcement personnel serve when working on highways. In particular, the commenters were concerned about law enforcement officers wearing high-visibility clothing while performing duties (such as routine traffic stops or searches and manhunts) that often place them in an adversarial or confrontational role, such as apprehending suspects, stolen vehicles, illicit drugs, or a vehicle occupant who turns out to be wanted for a serious felony and is armed and dangerous. As a result, many of these organizations commented that the rulemaking needed to allow more flexibility for law enforcement to determine, based on their own standard operating procedures, when it was appropriate to use high-visibility clothing. Their primary concern was that a highly-reflective garment would make them a better target if a gunfight develops, especially in nighttime conditions. The FHWA agrees with the law enforcement comments' assertion that the role of police differs significantly from that of other persons whose duties require them to work in and around the highway. Therefore, the FHWA modifies the definition of worker to limit the high-visibility garment requirement for law enforcement personnel to those duties that involve directing traffic, investigating crashes, and handling lane closures, obstructed roadways, and disasters within the right-of-way of a Federal-aid highway. Other Governmental Departments The City of Thornton, Colorado suggested that the definition of “worker” be expanded to include the Department of Homeland Security, since responders that are part of the National Incident Management System and the Incident Command System are called into duty during certain incidents, and should have the same visibility on Federal-aid highways. The FHWA believes that this rule applies to all workers whose duties place them within the right-of-way, including responders to incidents and disasters within the right-of-way of a Federal-aid highway. Temporary Traffic Control Zones The NCUTCD agreed with the definition of “workers” that includes all persons at a traffic incident scene or within a traffic control zone, including, but not limited to, police, fire, EMS, utility, media, and tow operators exposed to risks of moving roadway traffic or construction equipment. Virginia DOT expressed confusion with the proposed rule, stating there was inconsistency in the proposed rule because it was unclear as to whether it applied only to workers in temporary traffic control zones or to all workers who are outside of their vehicle on a Federal-aid highway. The Virginia DOT believes that the definition of the word “workers,” should only apply to workers within temporary traffic control zones. The FHWA reiterates that the purpose of this rule is to improve the visibility of all workers to motorists using the facility, so the garments should be worn any time the workers could be exposed to traffic. The FHWA revises the language in the final rule to clarify that the requirement applies to all workers within the right-of-way on Federal-aid highways and is not limited to temporary traffic control areas. Discussion of Comments Regarding Section 634.3 Rule Financial Impact Although one private citizen agreed that wearing high-visibility safety apparel is an inexpensive and proven technique to aid in the protection of road workers, the Associated General Contractors (New York State Chapter), the West Virginia DOT, the Tennessee Highway Patrol, and the New York State Police all commented that the financial impact of the rulemaking would be more expensive than outlined in the NPRM. States and local agencies may use funding available under Section 402 of Chapter 4 of Title 23, the State and Community Highway Safety Grant Program, to purchase or replace high-visibility garments for worker safety when this purchase is part of an eligible Section 402 highway safety project included in the State's approved highway plan. In order to minimize the financial impacts of this new part, the FHWA establishes an effective date of two years from the date the final rule is published in the **Federal Register** . The two-year compliance period should provide agencies, incident responders, and contractors sufficient time in most cases to react to the adoption of these new requirements by purchasing garments that comply with the new standard as they replace garments that have already reached the end of their useful service life. The FHWA research into the service life of the high-visibility garments that are currently in use indicates that the useful service life of the vests depends greatly on the type of activities in which the workers are engaged while wearing the garments. The useful life of garments that are worn on a daily basis is approximately six months. Garments that are not worn on a daily basis are expected to have a useful service life of up to three years. The FHWA realizes that there might be some variation in the useful service life of these garments based on the care provided. Length of Compliance Period The legal counsel of the Western State DOTs agrees with the compliance date of two years from the date the final rule is published in the **Federal Register** . The legal counsel suggests that the compliance date be included in the text of Part 634. The FHWA agrees and the compliance date is included in the text of Part 634. Because of the serious nature and number of fatal and non-fatal accidents, ISEA requests that the compliance date not exceed one year from the effective date of the final rule. The FHWA believes that the two-year compliance period is appropriate to allow all agencies and contractors, including those who have not already upgraded their safety apparel, time to react to the regulation. FHWA Action The FHWA adds a new part to the CFR to implement this statutory requirement. The FHWA adds a new part to Title 23, CFR that requires workers whose duties place them on or in close proximity to a Federal-aid highway to wear high-visibility safety apparel rather than to include such a requirement in the MUTCD. The FHWA is also considering whether to propose to include these requirements in the next edition of the MUTCD. Although the MUTCD is incorporated by reference at 23 CFR 655.601(a), it applies to all streets and highways open to the public, which is much broader than the requirement in SAFETEA-LU, which applies only to workers whose duties place them on or in close proximity to Federal-aid highways. Executive Order 12866 (Regulatory Planning and Review) and U.S. DOT Regulatory Policies and Procedures The FHWA has determined that this action is not a significant regulatory action within the meaning of Executive Order 12866 or significant within the meaning of the U.S. Department of Transportation regulatory policies and procedures. The economic impact of this rulemaking is minimal. As a result of the text in the 2003 MUTCD, many agencies have revised their policies to require their employees to wear ANSI Class 2 safety apparel at all times when they are working within the Federal-aid highway right-of-way and are revising their specifications to also require contractors' employees to wear compliant safety apparel when working within the right-of-way. In addition, in recognition of its risk management value, many contractors have begun to provide their workers with high-visibility safety apparel and to require its use on their projects, regardless of whether it is required by the contract language. The FHWA has researched the current practice regarding the use of high-visibility safety apparel in construction and maintenance work zones in 30 States. This research revealed that more than 90 percent (28 out of 30) of these State DOTs have already adopted policies that require highway construction and maintenance workers (including their own employees and contractors' employees) in highway work zones to wear high-visibility safety apparel. Most of these agencies specify the ANSI Class 2 standard and are furnishing them for their own employees. Therefore, a large majority of the State DOTs are already in compliance with the requirements of this regulation. According to the U.S. Department of Labor, Bureau of Labor Statistics, there are approximately 350,000 workers involved in highway construction activities nationwide at any given time. 4 The FHWA's research indicates that a large majority (more than 90 percent) of States have already adopted high-visibility garment policies in accordance with the 2003 MUTCD. Therefore, the estimated economic impact for contractors will be the purchase of approximately 35,000 garments at $25.00 5 each for a total of $875,000. This cost will be borne across many agencies, and the impact to each agency individually would be minimal. In order to further minimize the financial impacts of this new part, the FHWA establishes a compliance date for Part 634 that is two years from the date the final rule is published in the **Federal Register** . 4 U.S. Department of Labor Bureau of Labor Bureau Statistics maintains records on the numbers of workers involved in the highway construction industry. The statistics may be viewed at: *http://ww/bls.gov.* 5 The FHWA researched the price of high-visibility garments with manufacturers. This figure represents an average cost that an agency or contractor can expect to pay for an ANSI Class 2 garment. Each year more than 100 workers are killed and over 20,000 are injured in the highway and street construction industry. The FHWA believes that this rule will help reduce these numbers. Improved visibility of workers within the Federal-aid highway right-of-way would reduce these numbers. The FHWA research into the service life of the high-visibility garments that are currently in use has shown that the useful service life of the vests depends greatly on the type of activities in which the workers are engaged while wearing the garments. The useful service life of garments that are worn on a daily basis is approximately six months. Garments that are not worn on a daily basis are expected to have a useful service life of up to three years. Therefore, the two-year compliance period should provide agencies and contractors sufficient time in most cases to react to the adoption of these new requirements by purchasing garments that comply with the new standard as they replace garments that have already reached the end of their useful service life. The FHWA believes there will also be a minimal economic impact to the incident responder community, such as law enforcement agencies and fire departments. This regulation requires these agencies to supply their personnel with high-visibility safety apparel for use on Federal-aid highway rights-of-ways. The FHWA sought comments during the public comment period in order to fully assess the magnitude of the economic impact that this new part will have on the incident response and law enforcement communities. The Tennessee Highway Patrol and the New York State Police both commented that the financial impact of the rulemaking would be more expensive than outlined in the NPRM. The majority of comments received from the law enforcement community, including the International Chiefs of Police, indicated that most law enforcement agencies have furnished patrol officers with high-visibility garments and have established policies and procedures for their use. Therefore, the FHWA believes that the two year compliance period will allow these agencies to, if needed, replace their existing garments to comply with the new standard. Additionally, States and local agencies may use funding available under Section 402 of Chapter 4 of Title 23, the State and Community Highway Safety Grant Program, to purchase high-visibility garments for worker safety when this purchase is part of an eligible Section 402 highway safety project included in the State's approved highway plan. These changes will not adversely affect, in any material way, any sector of the economy. In addition, these changes will not interfere with any action taken or planned by another agency and would not materially alter the budgetary impact of any entitlements, grants, user fees, or loan programs. Consequently, a full regulatory evaluation is not required. Regulatory Flexibility Act In compliance with the Regulatory Flexibility Act (5 U.S.C. 601-612), the FHWA has evaluated the effects of this final rule on small entities. This action requires all workers to wear high-visibility safety apparel when on the right-of-way of Federal-aid highways. The results of the FHWA's research indicated that more than 90 percent of the States have adopted policies that require the use of high-visibility safety apparel in construction and maintenance (including their own employees and contractors' employees) in highway work zones. Most of these agencies specify the ANSI Class 2 standard and are furnishing them for their own employees. The FHWA believes that many local agencies have also adopted this policy because the FHWA's research indicates that usually local agencies follow States' policies with respect to MUTCD standards and guidance. Also, the rule only applies to Federal-aid highway rights-of-way and the FHWA's research shows that the number of miles of Federal-aid highways that are under the jurisdiction of small entities makes up only approximately 25 percent of the total number of miles on the Federal-aid highway system. 6 6 U.S. Department of Transportation, Federal Highway Administration Highway Statistics. This information is available at: *http://www/fhwa.dot.gov/policy/ohim/hs03.* Therefore, the FHWA has determined that the rule will not have a significant economic impact on a substantial number of small entities. The majority of comments received from the law enforcement community, including the International Chiefs of Police, indicated that most law enforcement agencies have furnished patrol officers with high-visibility garments and have established policies and procedures for their use. Therefore, the FHWA believes that the 2-year compliance period will allow these agencies to, if needed, replace their existing garments to comply with the new standard. Additionally, States and local agencies may use funding available under Section 402 of Chapter 4 of Title 23, the State and Community Highway Safety Grant Program, to purchase high-visibility garments when this purchase is part of an eligible Section 402 highway safety project included in the State's approved highway plan. Therefore, the economic impact to the law enforcement community will be minimal. Unfunded Mandates Reform Act of 1995 This rule does not impose unfunded mandates as defined by the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, March 22, 1995, 109 Stat. 48). This rule does not result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $128.1 million or more in any one-year period to comply with these requirements. Additionally, the definition of “Federal mandate” in the Unfunded Mandate Reform Act excludes financial assistance of the type in which State, local, or tribal governments have authority to adjust their participation in the program in accordance with changes made in the program by the Federal Government. The Federal-aid highway program permits this type of flexibility to the States. Executive Order 13132 (Federalism) This action has been analyzed in accordance with the principles and criteria contained in Executive Order 13132 dated August 4, 1999, and the FHWA has determined that this final rule will not have a substantial direct effect or sufficient federalism implications on States that would limit the policymaking discretion of the States and local governments. The FHWA has also determined that this rulemaking does not preempt any State law or State regulation or affect the States' ability to discharge traditional State governmental functions and does not have sufficient federalism implications to warrant the preparation of a federalism assessment. The requirements are in keeping with the Secretary of Transportation's authority under 23 U.S.C. 109(d), 315, and 402(a) to promulgate uniform guidelines to promote the safe and efficient use of highways. Executive Order 13175 (Tribal Consultation) The FHWA has analyzed this action under Executive Order 13175, dated November 6, 2000, and believes that it will not have substantial direct effects on one or more Indian tribes, will not impose substantial direct compliance costs on Indian tribal governments, and will not preempt tribal law. The purpose of this rule is to improve visibility of workers within the Federal-aid highway right-of-way to increase the safety of these workers, and does not impose any direct compliance requirements on Indian tribal governments and does not have any economic or other impacts on the viability of Indian tribes. Therefore, a tribal summary impact statement is not required. Executive Order 13211 (Energy Effects) The FHWA has analyzed this final rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. The FHWA has determined that this is not a significant energy action under that order because it is not a significant regulatory action under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. Therefore, a Statement of Energy Effects under Executive Order 13211 is not required. Executive Order 12372 (Intergovernmental Review) Catalog of Federal Domestic Assistance Program Number 20.205, Highway Planning and Construction. The regulations implementing Executive Order 12372 regarding intergovernmental consultation on Federal programs and activities apply to this program. Paperwork Reduction Act Under the Paperwork Reduction Act of 1995
(PRA)(44 U.S.C. 3501, *et seq.* ), Federal agencies must obtain approval from the Office of Management and Budget
(OMB)for each collection of information they conduct, sponsor, or require through regulations. The FHWA has determined that this action does not contain a collection of information requirement for the purposes of the PRA. Executive Order 12988 (Civil Justice Reform) This action meets applicable standards in Sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, to eliminate ambiguity, and to reduce burden. Executive Order 13045 (Protection of Children) The FHWA has analyzed this action under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This is not an economically significant action and does not concern an environmental risk to health or safety that might disproportionately affect children. Executive Order 12630 (Taking of Private Property) This action will not affect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights. National Environmental Policy Act The agency has analyzed this proposed action for the purpose of the National Environmental Policy Act of 1969 (42 U.S.C. 4321 *et seq.* ) and has determined that it will not have any effect on the quality of the environment. Regulation Identification Number A regulation identification number
(RIN)is assigned to each regulatory action listed in the Unified Agenda of Federal Regulations. The Regulatory Information Service Center publishes the Unified Agenda in April and October of each year. The RIN contained in the heading of this document can be used to cross reference this action with the Unified Agenda. List of Subjects in 23 CFR Part 634 Design standards, Highways and roads, Incorporation by reference, Workers, Traffic regulations. Issued on: November 18, 2006. J. Richard Capka, Federal Highway Administrator. In consideration of the foregoing, the FHWA adds part 634 to Title 23, Code of Federal Regulations, as follows: PART 634—WORKER VISIBILITY Sec. 634.1 Purpose. 634.2 Definitions. 634.3 Rule. 634.4 Compliance date. Authority: 23 U.S.C. 101(a), 109(d), 114(a), 315, and 402(a); Sec. 1402 of Pub. L. 109-59; 23 CFR 1.32; and 49 CFR 1-48(b). § 634.1 Purpose. The purpose of the regulations in this part is to decrease the likelihood of worker fatalities or injuries caused by motor vehicles and construction vehicles and equipment while working within the right-of-way on Federal-aid highways. § 634.2 Definitions. *Close proximity* means within the highway right-of-way on Federal-aid highways. *High-visibility safety apparel* means personal protective safety clothing that is intended to provide conspicuity during both daytime and nighttime usage, and that meets the Performance Class 2 or 3 requirements of the ANSI/ISEA 107-2004 publication entitled “American National Standard for High-Visibility Safety Apparel and Headwear.” This publication is incorporated by reference in accordance with 5 U.S.C. 552(a) and 1 CFR Part 51 and is on file at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call
(202)741-6030, or go to *http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html.* It is available for inspection and copying at the Federal Highway Administration, 400 Seventh Street, SW., Room 4232, Washington, DC, 20590, as provided in 49 CFR Part 7. This publication is available for purchase from the International Safety Equipment Association
(ISEA)at 1901 N. Moore Street, Suite 808, Arlington, VA 22209, *http://www.safetyequipment.org.* *Workers* means people on foot whose duties place them within the right-of-way of a Federal-aid highway, such as highway construction and maintenance forces, survey crews, utility crews, responders to incidents within the highway right-of-way, and law enforcement personnel when directing traffic, investigating crashes, and handling lane closures, obstructed roadways, and disasters within the right-of-way of a Federal-aid highway. § 634.3 Rule. All workers within the right-of-way of a Federal-aid highway who are exposed either to traffic (vehicles using the highway for purposes of travel) or to construction equipment within the work area shall wear high-visibility safety apparel. § 634.4 Compliance date. States and other agencies shall comply with the provisions of this Part no later than November 24, 2008. [FR Doc. E6-19910 Filed 11-22-06; 8:45 am] BILLING CODE 4910-22-P DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 165 [CGD05-06-106] RIN 1625-AA00 Safety Zone: Fireworks Display, Motts Channel, Wrightsville Beach, NC AGENCY: Coast Guard, DHS. ACTION: Temporary final rule. SUMMARY: The Coast Guard is establishing a 1000 foot safety zone around a fireworks display for the North Carolina Holiday Flotilla occurring on November 25, 2006, on Motts Channel, Wrightsville Beach, NC. This action is intended to restrict vessel traffic on Motts Channel. This safety zone is necessary to protect mariners from the hazards associated with fireworks displays. DATES: This rule is effective from 6 p.m. to 8 p.m. on November 25, 2006. ADDRESSES: Documents indicated in this preamble as being available in the docket are part of docket CGD05-06-106 and are available for inspection or copying at the Coast Guard Marine Safety Unit Wilmington, North Carolina between 8 a.m. and 4 p.m., Monday through Friday, except Federal Holidays. FOR FURTHER INFORMATION CONTACT: LTJG Adam Schmid, Port Safety and Security Branch, Coast Guard Marine Safety Unit Wilmington, North Carolina at
(910)772-2217. SUPPLEMENTARY INFORMATION: Regulatory Information We did not publish a notice of proposed rulemaking
(NPRM)for this regulation. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing an NPRM. Any delay encountered in this regulation's effective date by publishing a NPRM would be contrary to public interest since immediate action is needed to prevent traffic from transiting the waters in the vicinity of 34 deg-12′-17.0″ N 077 deg-48′-18.0″ W, the southeastern portion of Spoils Island in Motts Channel south of the Seapath Yacht Club, Wrightsville Beach, NC, in order to provide for the safety of life and property on navigable waters. Additionally, this temporary safety zone is only in effect from 6 p.m. to 8 p.m. on November 25, 2006 and should have minimal impact on vessel transits due to the fact that vessels can safely transit around the zone and that they are not precluded from using any portion of the waterway except the safety zone area itself. For the same reasons, Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the **Federal Register** . Background and Purpose On November 25, 2006, the North Carolina Holiday Flotilla fireworks display will be held adjacent to Motts Channel, Wrightsville Beach, NC. Spectators will be observing from both the shore and from vessels. Due to the need for protection of mariners and spectators from the hazards associated with the fireworks display, vessel traffic in the vicinity of this event will be temporarily restricted as described herein. Discussion of Rule The Coast Guard is establishing a safety zone on specified waters of Motts Channel. The regulated area will consist of a 1000 foot safety zone centered on position 34 deg-12′-17.0″N 077 deg-48′-18.0″W, in the vicinity of the southeastern portion of Spoils Island in Motts Channel south of the Seapath Yacht Club, Wrightsville Beach, NC. The safety zone will be in effect from 6 p.m. to 8 p.m. on November 25, 2006. General navigation in the safety zone will be restricted during the event. Except for participants and vessels authorized by the Coast Guard Patrol Commander, no person or vessel may enter or remain in the regulated area. 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 restricts access to the regulated area, the effect of this rule will not be significant because:
(i)The Captain of the Port
(COTP)may authorize access to the safety zone;
(ii)the safety zone will be in effect for a limited duration; and
(iii)the Coast Guard will make notifications via maritime advisories so mariners can adjust their plans accordingly. 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 may affect the following entities, some of which may be small entities: The owners and operators of vessels intending to transit or anchor in the described portion of the Motts Channel from 6 p.m. to 8 p.m. on November 25, 2006. The safety zone will not have a significant impact on a substantial number of small entities, because the zone will only be in place for a few hours and maritime advisories will be issued, so the 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 want to assist small entities in understanding this rule so that they can better evaluate its effects on them and participate in the rulemaking. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact LTJG Adam Schmid, Port Safety and Security Branch, Coast Guard Marine Safety Unit, Wilmington, North Carolina at
(910)772-2217. 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 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 will 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 will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble. Taking of Private Property This rule will not 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 does not create an environmental risk to health or risk to safety that may disproportionately affect children. Indian Tribal Governments This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. Energy Effects We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211. Technical Standards The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or are 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 guide the Coast Guard in complying with the National Environmental Policy Act of 1969
(NEPA)(42 U.S.C. 4321-4370f), and have concluded that there are no factors in this case that will limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Therefore, this rule is categorically excluded, under figure 2-1, paragraph (34)(g), of the Instruction, from further environmental documentation. A final “Environmental Analysis Check List” and a final “Categorical Exclusion Determination” are available in the docket where indicated under ADDRESSES . List of Subjects in 33 CFR Part 165 Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, and Waterways. For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 Subpart C as follows: PART 165—REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS 1. The authority citation for part 165 continues to read as follows: Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. Chapter 701; 50 U.S.C. 191, 195; 33 CFR 1.05-1(g), 6.04-1, 6.04-6 and 160.5; Pub. L. 107-295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1. 2. Add Temporary § 165.T05-106, to read as follows: § 165.T05-106 Safety Zone: Motts Channel, Wrightsville Beach, North Carolina.
(a)*Location.* The following area is a safety zone: All waters of Motts Channel within 1000 feet of a point on Spoils Island at Wrightsville Beach, NC, located at position 34 deg-12′-17.0″ N 077 deg-48′-18.0″ W in the Captain of the Port Cape Fear River, Wilmington, North Carolina zone as defined in 33 CFR 3.25-20.
(b)*Definition:* As used in this section *Designated Representative* means any U.S. Coast Guard commissioned, warrant or petty officer who has been authorized by the Captain of the Port, Cape Fear River, Wilmington, North Carolina to act on his behalf.
(c)*Regulation:*
(1)In accordance with the general regulations in 165.23 of this part, entry into this zone is prohibited unless authorized by the Captain of the Port, Cape Fear River, Wilmington, North Carolina, or designated representative.
(2)The operator of any vessel in the immediate vicinity of this safety zone shall:
(i)Stop the vessel immediately upon being directed to do so by any commissioned, warrant or petty officer on board a vessel displaying a U.S. Coast Guard Ensign.
(ii)Proceed as directed by any commissioned, warrant or petty officer on board a vessel displaying a U.S. Coast Guard Ensign.
(3)The Captain of the Port, Cape Fear River, Wilmington, North Carolina can be contacted at telephone number
(910)772-2200 or
(910)512-5830.
(4)Coast Guard vessels enforcing the safety zone can be contacted on VHF-FM marine band radio, channel 13 (156.65 MHz) and channel 16 (156.8 MHz).
(d)*Effective Date:* This regulation will be effective from 6 p.m. to 8 p.m. on November 25, 2006. Dated: October 27, 2006. Byron L. Black, Commander, U.S. Coast Guard, Captain of the Port, Cape Fear River, Wilmington, North Carolina. [FR Doc. E6-19909 Filed 11-22-06; 8:45 am] BILLING CODE 4910-15-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 60 [EPA-HQ-OAR-2003-0156; FRL-8246-8] RIN 2060-AN95 Standards of Performance for New Stationary Sources and Emission Guidelines for Existing Sources: Other Solid Waste Incineration Units AGENCY: Environmental Protection Agency (EPA). ACTION: Direct final rule; technical correction. SUMMARY: EPA is taking direct final action to make a technical correction to the emission guidelines and new source performance standards
(NSPS)for other solid waste incineration
(OSWI)units. We are correcting the averaging time for measuring opacity. DATES: The direct final rule technical correction is effective on January 23, 2007 unless EPA receives significant material adverse comments by December 26, 2006. If EPA receives significant adverse comments, EPA will publish a timely withdrawal of the direct final rule in the **Federal Register** . ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-OAR-2003-0156, by one of the following methods: *http://www.regulations.gov.* Follow the on-line instructions for submitting comments. *E-mail:* Send your comments via electronic mail to *a-and-r-docket@epa.gov,* Attention Docket ID No. EPA-HQ-OAR-2003-0156. *Mail:* Send your comments to: EPA Docket Center (EPA/DC), Environmental Protection Agency, Mailcode 6102T, 1200 Pennsylvania Ave., NW., Washington, DC 20460, Attention Docket ID No. EPA-HQ-OAR-2003-0156. *Hand Delivery:* Deliver your comments to: EPA Docket Center (EPA/DC), EPA West Building, Room B108, 1301 Constitution Ave., NW., Washington, DC, 20460, Attention Docket ID No. EPA-HQ-OAR-2003-0156. Such deliveries are accepted only during the normal hours of operation (8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays), and special arrangements should be made for deliveries of boxed information. *Instructions:* Direct your comments to Docket ID No. EPA-HQ-OAR-2003-0156. EPA's policy is that all comments received will be included in the public docket without change and may be made available online at *http://www.regulations.gov,* including any personal information provided, unless the comment includes information claimed to be Confidential Business Information
(CBI)or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through *http://www.regulations.gov* or e-mail. The *http://www.regulation.gov* Web site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going through *http://www.regulations.gov,* your e-mail address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. FOR FURTHER INFORMATION CONTACT: Ms. Martha Smith, Natural Resources and Commerce Group, Sector Policies and Programs Division (E143-03), Environmental Protection Agency, Research Triangle Park, North Carolina 27711; telephone number:
(919)541-2421; e-mail: *smith.martha@epa.gov.* SUPPLEMENTARY INFORMATION: EPA is publishing the direct final rule without prior proposal because EPA views this correction as non-controversial and does not anticipate adverse comments. However, in the Proposed Rules section of this **Federal Register** , we are publishing a separate document that will serve as the proposal in the event that adverse comments are filed. If an adverse comment applies to this technical correction, EPA will publish a timely withdrawal of the direct final rule in the **Federal Register** . If EPA receives no significant adverse comments, we will take no further action. *Judicial Review.* Under CAA section 307(b)(1), judicial review of the technical correction is available only by filing a petition for review in the U.S. Court of Appeals for the District of Columbia Circuit by January 23, 2007. Under CAA section 307(d)(7)(B), only an objection to the final technical correction that was raised with reasonable specificity during the period for public comment may be raised during judicial review. Moreover, under CAA section 307(b)(2), the requirements established by the technical correction may not be challenged separately in any civil or criminal proceedings brought by EPA to enforce these requirements. Section 307(d)(7)(B) of the CAA further provides that “[o]nly an objection to a rule or procedure which was raised with reasonable specificity during the period for public comment (including any public hearing) may be raised during judicial review.” This section also provides a mechanism for us to convene a proceeding for reconsideration, “[i]f the person raising an objection can demonstrate to the EPA that it was impracticable to raise such objection within [the period for public comment] or if the grounds for such objection arose after the period for public comment (but within the time specified for judicial review) and if such objection is of central relevance to the outcome of the rule.” Any person seeking to make such a demonstration to us should submit a Petition for Reconsideration to the Office of the Administrator, U.S. EPA, Room 3000, Ariel Rios Building, 1200 Pennsylvania Ave., NW., Washington, DC 20460, with a copy to both the person(s) listed in the preceding FOR FURTHER INFORMATION CONTACT section, and the Associate General Counsel for the Air and Radiation Law Office, Office of General Counsel (Mail Code 2344A), U.S. EPA, 1200 Pennsylvania Ave., NW., Washington, DC 20004. *Organization of This Document.* The following outline is provided to aid in locating information in this preamble. I. General Information A. Does the technical correction apply to me? II. Summary of the Technical Correction A. Correct Averaging Time for Opacity Measurements III. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Review B. Paperwork Reduction Act C. Regulatory Flexibility Act D. Unfunded Mandates Reform Act E. Executive Order 13132: Federalism F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments G. Executive Order 13045: Protection of Children From Environmental Health Risks and Safety Risks H. Executive Order 13211: Actions That Significantly Affect Energy Supply, Distribution or Use I. National Technology Transfer Advancement Act J. Congressional Review Act I. General Information A. Does the technical correction apply to me? *Regulated Entities.* Categories and entities potentially regulated by the direct final rule are very small municipal waste combustion (VSMWC) units and institutional waste incineration
(IWI)units. The final OSWI emission guidelines and NSPS potentially affect the following categories of sources: Category NAICS code Examples of potentially regulated entities Any State, local, or Tribal government using a VSMWC unit as defined in the regulations 562213, 92411 Solid waste combustion units burning municipal waste collected from the general public and from residential, commercial, institutional, and industrial sources. Institutions using an IWI unit as defined in the regulations 922, 6111, 623, 7121 Correctional institutions, primary and secondary schools, camps and national parks. Any Federal government agency using an OSWI unit as defined in the regulations 928 Department of Defense (labs, military bases, munition facilities). Any college or university using an OSWI unit as defined in the regulations 6113, 6112 Universities, colleges and community colleges. Any church or convent using an OSWI unit as defined in the regulations 8131 Churches and convents. Any civic or religious organization using an OSWI unit as defined in the regulations 8134 Civic associations and fraternal associations. This table is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be regulated by the direct final rule. To determine whether your facility is regulated by the direct final rule, you should examine the applicability criteria in 40 CFR 60.2885 through 60.2888 of subpart EEEE, and in the emission guidelines for existing sources located at 40 CFR 60.2991 through 60.2994 of subpart FFFF. If you have any questions regarding the applicability of the direct final rule to a particular entity, contact the person listed in the FOR FURTHER INFORMATION CONTACT section. *Docket.* The docket number for the direct final rule technical correction to the OSWI NSPS (40 CFR part 60, subpart EEEE) and emission guidelines (40 CFR part 60, subpart FFFF) is Docket ID No. EPA-HQ-OAR-2003-0156. The OSWI NSPS and emission guidelines docket is incorporated by reference (Docket ID No. EPA-HQ-OAR-2003-0156). The docket includes background information and supported the proposal and promulgation of the NSPS and emission guidelines. *Worldwide Web (WWW).* In addition to being available in the docket, an electronic copy of this direct final rule is available on the WWW through the Technology Transfer Network Web site (TTN Web). Following signature, EPA will post a copy of the direct final rule on the TTN's policy and guidance page for newly proposed or promulgated rules at *http://www.epa.gov/ttn/oarpg.* The TTN provides information and technology exchange in various areas of air pollution control. II. Summary of the Technical Correction A. Correct Averaging Time for Opacity Measurements On December 16, 2005, we promulgated standards of performance (70 FR 74892) and emissions guidelines (70 FR 74907) for OSWI units. These standards and guidelines establish maximum achievable control technology
(MACT)emission limits for nine pollutants and opacity. Table 1 to subpart EEEE and Table 2 to subpart FFFF of part 60 contain the emission limits, averaging time, and test method for each of the pollutants and opacity. This final rule corrects an inadvertent error to the opacity test averaging time presented in these tables to the December 16, 2005, final rules. Compliance with the opacity limits is measured using EPA Method 9. EPA Method 9 specifies some minimum requirements for consecutive observations and the length of time that averages must be calculated over. Observations are made every 15 seconds for a minimum of 24 consecutive observations ( *i.e.* , 6 minutes). According to EPA Method 9, rule developers have the discretion to apply whichever averaging time they choose; “If an applicable standard specifies an averaging time requiring more than 24 observations, calculate the average for all observations made during the specified averaging period.” The final OSWI rules require opacity be measured as a 6-run average (1-hour minimum sample time per run). Our intent, however, was to apply an averaging and test run time that is consistent with other CAA section 129 source category NSPS and emission guidelines. Therefore, the intended opacity averaging time, which has become the Agency standard under NSPS and emission guidelines using EPA Method 9, was a 6-minute average, observed over three 1-hour test runs ( *i.e.* , thirty 6-minute averages). Our intent to use 6-minute averages is further evidenced by the text in 40 CFR Sections 60.2971 and 60.2973 in Subpart EEEE and 40 CFR Sections 60.3066 and 60.3068 in Subpart FFFF, which specifically refer to an opacity limit using a “6-minute average”. Therefore, we are correcting Tables 1 and 2 to reflect this averaging time. III. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Review This action is not a “significant regulatory action” under the terms of Executive Order
(EO)12866 (58 FR 51735, October 4, 1993) and is therefore not subject to review under the EO. We have determined that the direct final rule is not a “significant regulatory action” under the terms of Executive Order 12866 and, therefore, is not subject to review by OMB because the direct final rule will not have an annual effect on the economy of $100 million or more and does not impose any additional control requirements above the other solid waste incineration unit NSPS or emission guidelines. The 2005 NSPS and emission guidelines rulemaking (which included requirements for new and existing very small MWC units and requirements for new and existing institutional waste incineration units) was considered “significant” and was reviewed by OMB (see 70 FR 74888, December 16, 2005). B. Paperwork Reduction Act This action does not impose any new information collection burden. The amendments contained in the direct final rule result in no changes to the information collection requirements of the NSPS or emission guidelines, and will have no impact on the information collection estimate of project cost and hour burden made and approved by OMB during the development of the NSPS and emission guidelines. Therefore, the information collection requests have not been revised. However, the Office of Management and Budget
(OMB)has previously approved the information collection requirements contained in the existing NSPS (40 CFR part 60, subpart EEEE) and existing emission guidelines (40 CFR part 60, subpart FFFF) under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 *et seq.* , and has assigned OMB control number 2060-0563 (EPA ICR 2163.02) to the NSPS and OMB control number 2060-0562 (EPA ICR 2164.02) to the emission guidelines. Copies of the ICR document(s) may be obtained from Susan Auby by mail at U.S. EPA, Office of Environmental Information, Collection Strategies Division (2822T), 1200 Pennsylvania Avenue, NW., Washington, DC 20460, by e-mail at *auby.susan@epa.gov* , or by calling
(202)566-1672. Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information. An agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations in 40 CFR are listed in 40 CFR part 9. C. Regulatory Flexibility Act The Regulatory Flexibility Act
(RFA)generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedures Act or any other statute unless the agency certifies that the rule will not have a significant impact on a substantial number of small entities. Small entities include small businesses, small government organizations, and small government jurisdictions. For purposes of assessing the impacts of this direct final rule on small entities, small entity is defined as follows:
(1)A small business in the regulated industry that has a gross annual revenue less than $6 million (this varies by industry category, ranging up to $10.5 million for North American Industrial Classification System (NAICS) code 562213 (VSMWC)), based on Small Business Administration's size standards;
(2)a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; or
(3)a small organization that is any not-for-profit enterprise that is independently owned and operated and is not dominant in its field. After considering the economic impact of this direct final rule on small entities, I certify that this action will not have a significant economic impact on a substantial number of small entities. This action does not propose any changes to the final OSWI rule, in which we determined that the final rule would not have a significant economic impact on a substantial number of small entities. D. Unfunded Mandates Reform Act Title II of the Unfunded Mandates Reform Act
(UMRA)of 1995, Public Law 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and tribal Governments and the private sector. Under section 202 of the UMRA, EPA generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures by State, local, and Tribal Governments, in the aggregate, or by the private sector, of $100 million or more in any one year. Before promulgating an EPA rule for which a written statement is needed, section 205 of the UMRA generally requires EPA to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective or least burdensome alternative that achieves the objectives of the rule. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows EPA to adopt an alternative other than the least costly, most cost-effective or least burdensome alternative if the Administrator publishes with the final rule an explanation why that alternative was not adopted. Before EPA establishes any regulatory requirements that may significantly or uniquely affect small Governments, including Tribal Governments, it must have developed a small government agency plan under section 203 of the UMRA. The plan must provide for notifying potentially affected small Governments, enabling officials of affected small Governments to have meaningful and timely input in the development of EPA regulatory proposals with significant Federal intergovernmental mandates, and informing, educating, and advising small Governments on compliance with the regulatory requirements. EPA has determined that the direct final rule does not contain a Federal mandate that may result in expenditures of $100 million or more for State, local, and Tribal Governments, in the aggregate, or the private sector in any one year. The direct final rule does not change the burden of the original OSWI rules, which were determined to result in expenditures of less than $100 million (70 FR 74890, December 16, 2005). Thus, the direct final rule is not subject to the requirements of sections 202 and 205 of the UMRA. In addition, EPA has determined that the direct final rule contains no regulatory requirements that might significantly or uniquely affect small Governments because the burden is small and the regulation does not unfairly apply to small Governments. E. Executive Order 13132: Federalism Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have Federalism implications.” “Policies that have Federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” This direct final rule does not have Federalism implications. It will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. Thus, Executive Order 13132 does not apply to this rule. F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000), requires EPA to develop an accountable process to ensure “meaningful and timely input by Tribal officials in the development of regulatory policies that have Tribal implications.” “Policies that have Tribal implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the relationship between the Federal Government and the Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.” This direct final rule does not have Tribal implications, as specified in Executive Order 13175. It will not have substantial direct effects on tribal Governments, on the relationship between the Federal government and Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes, as specified in Executive Order 13175. Thus, Executive Order 13175 does not apply to this direct final rule. G. Executive Order 13045: Protection of Children From Environmental Health and Safety Risks Executive Order 13045 (62 FR 19885, April 23, 1997) applies to any rule that:
(1)Is determined to be “economically significant” as defined under Executive Order 12866, and
(2)concerns an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, EPA must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives EPA considered. EPA interprets Executive Order 13045 as applying only to those regulatory actions that are based on health or safety risks, such that the analysis required under section 5-501 of the Executive Order has the potential to influence the regulation. This direct final rule is not subject to Executive Order 13045 because it is not economically significant, and the original OSWI rules were based on technology performance and not on health and safety risks. H. Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution or Use This direct final rule is not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, and Use” (66 FR 28355, May 22, 2001) because it is not a significant regulatory action under Executive Order 12866. I. National Technology Transfer Advancement Act CAA section 12(d) of the National Technology Transfer and Advancement Act (NTTAA) of 1995 (Pub. L. 104-113; 15 U.S.C. 272 note) directs EPA to use voluntary consensus standards in their regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards ( *e.g.* , materials specifications, test methods, sampling procedures, business practices) developed or adopted by one or more voluntary consensus bodies. The NTTAA directs EPA to provide Congress, through annual reports to OMB, with explanations when an agency does not use available and applicable voluntary consensus standards. This direct final rule does not involve technical standards. EPA's compliance with section 12(d) of the NTTAA has been addressed in the preamble of the underlying final OSWI rule (70 FR 74891, December 16, 2005). J. Congressional Review Act The Congressional Review Act, 5 U.S.C. 801 *et seq.* , as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the **Federal Register** . A major rule cannot take effect until 60 days after it is published in the **Federal Register** . This action is not a “major rule” as defined by 5 U.S.C. 804(2). This rule will be effective January 23, 2007. List of Subjects in 40 CFR Part 60 Environmental protection, Administrative practice and procedure, Air pollution control, Intergovernmental relations, Reporting and recordkeeping requirements. Dated: November 17, 2006. Stephen L. Johnson, Administrator. For reasons stated in the preamble, title 40, chapter I, part 60 of the Code of Federal Regulations is amended as follows: PART 60—[AMENDED] 1. The authority citation for part 60 continues to read as follows: Authority: 42 U.S.C. 7401 *et seq.* Subpart EEEE—[Amended] 2. Table 1 to subpart EEEE of part 60 is amended by revising entry 7 for opacity to read as follows: As stated in § 60.2915, you must comply with the following: Table 1 to Subpart EEEE of Part 60—Emission Limitations For the air pollutant You must meet this emission limitation a Using this averaging time And determining compliance with this method * * * * * * * 7. Opacity 10 percent 6-minute average (observe over three 1-hour test runs; i.e., thirty 6-minute averages) Method 9 of appendix A of this part. * * * * * * * Subpart FFFF—[Amended] 3. Table 2 to subpart FFFF of part 60 is amended by revising entry 7 for opacity to read as follows: As stated in § 60.3022, you must comply with the following: Table 2 to Subpart FFFF of Part 60—Model Rule—Emission Limitations For the air pollutant You must meet this emission limitation a Using this averaging time And determining compliance with this method * * * * * * * 7. Opacity 10 percent 6-minute average (observe over three 1-hour test runs; i.e., thirty 6-minute averages) Method 9 of appendix A of this part. * * * * * * * [FR Doc. E6-19865 Filed 11-22-06; 8:45 am] BILLING CODE 6560-50-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 62 [EPA-R06-OAR-2006-0570; FRL-8246-9] Approval and Promulgation of State Plans for Designated Facilities and Pollutants: Bernalillo County, NM AGENCY: Environmental Protection Agency (EPA). ACTION: Direct final rule. SUMMARY: EPA is approving the section 111(d) Plan submitted by City of Albuquerque (Bernalillo County), New Mexico, on May 24, 2006, to implement and enforce the Emission Guidelines
(EG)for existing Municipal Solid Waste
(MSW)Landfills. The EG require delegated municipalities to develop plans to reduce landfill gas emissions from all MSWs. Finally, this action also approves the concomitant delegation of authority to implement 40 CFR part 60, subparts WWW and Cc. DATES: This rule is effective on January 23, 2007 without further notice, unless EPA receives adverse comment by December 26, 2006. If EPA receives such comment, EPA will publish a timely withdrawal in the **Federal Register** informing the public that this rule will not take effect. ADDRESSES: Submit your comments, identified by File ID No. EPA-R06-OAR-2006-0570, by one of the following methods: • Federal eRulemaking Portal: *http://www.regulations.gov.* Follow the online instructions for submitting comments. • U.S. EPA Region 6 “Contact Us” Web site: *http://epa.gov/region6/r6coment.htm* Please click on “6PD” (Multimedia) and select “Air” before submitting comments. • E-mail: Mr. Thomas Diggs at *diggs.thomas@epa.gov.* Please also cc the person listed in the FOR FURTHER INFORMATION CONTACT section below. • Fax: Mr. Thomas Diggs, Chief, Air Planning Section (6PD-L), at fax number 214-665-7263. • Mail: Mr. Thomas Diggs, Chief, Air Planning Section (6PD-L), Environmental Protection Agency, 1445 Ross Avenue, Suite 1200, Dallas, Texas 75202-2733. • Hand or Courier Delivery: Mr. Thomas Diggs, Chief, Air Planning Section (6PD-L), Environmental Protection Agency, 1445 Ross Avenue, Suite 1200, Dallas, Texas 75202-2733. Such deliveries are accepted only between the hours of 8am and 4pm weekdays except for legal holidays. Special arrangements should be made for deliveries of boxed information. *Instructions:* Please include the text “Public comment on File ID No. EPA-R06-OAR-2006-0570” in the subject line of the first page of your comments. EPA's policy is that all comments received will be included in the public file without change, including any personal information provided, unless the comment includes information claimed to be Confidential Business Information
(CBI)or other information the disclosure of which is restricted by statute. Do not submit information through regulations.gov or e-mail if you believe that it is CBI or otherwise protected from disclosure. Regulations.gov is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going through regulations.gov, your e-mail address will be automatically captured and included as part of the comment that is placed in the public file and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. *Official File:* Copies of the documents relevant to this action are in the official file, which is available at the Air Planning Section (6PD-L), Environmental Protection Agency, 1445 Ross Avenue, Suite 700, Dallas, Texas 75202-2733. The file will be made available by appointment for public inspection in the Region 6 FOIA Review Room between the hours of 8:30 a.m. and 4:30 p.m. weekdays except for legal holidays. Contact the person listed in the FOR FURTHER INFORMATION CONTACT paragraph below or Mr. Bill Deese at 214-665-7253 to make an appointment. If possible, please make the appointment at least two working days in advance of your visit. There will be a 15-cent per page fee for making photocopies of documents. On the day of the visit, please check in at the EPA Region 6 reception area at 1445 Ross Avenue, Suite 700, Dallas, Texas. Copies of any State submittals and EPA's technical support document are also available for public inspection at the State Air Agency listed below during official business hours by appointment: Albuquerque Environmental Health Department, Air Pollution Control Division, One Civic Plaza, Albuquerque, New Mexico 87103. FOR FURTHER INFORMATION CONTACT: Kenneth W. Boyce, Air Planning Section (6PD-L), Environmental Protection Agency, Region 6, 1445 Ross Avenue, Suite 700, Dallas, Texas 75202-2733, telephone
(214)665-7259; fax number 214-665-7263; e-mail address *boyce.kenneth@epa.gov.* SUPPLEMENTARY INFORMATION: I. Background Under section 111(d) of the Clean Air Act (CAA or the Act), EPA has established procedures whereby States submit plans to control certain existing sources of “designated pollutants.” Designated pollutants are defined as pollutants for which a standard of performance for new sources applies under section 111 but, which are not “criteria pollutants” (i.e., pollutants for which National Ambient Air Quality Standards (NAAQS) are set pursuant to sections 108 and 109 of the Act) or hazardous air pollutants
(HAPs)regulated under section 112 of the Act. As required by section 111(d) of the Act, EPA established a process at 40 CFR part 60, subpart B, which States must follow in adopting and submitting a section 111(d) plan. Whenever EPA promulgates new source performance standards
(NSPS)that control a designated pollutant, EPA establishes emission guidelines
(EG)in accordance with 40 CFR 60.22 which contain information pertinent to the control of the designated pollutant from that NSPS source category (i.e., the “designated facility” as defined at 40 CFR 60.21(b)). Thus, a State's section 111(d) plan for a designated facility must comply with the EG for that source category as well as 40 CFR part 60, subpart B (40 CFR 60.23 through 60.26). On March 12, 1996, EPA promulgated the NSPS for new municipal solid waste
(MSW)landfills at 40 CFR part 60, subpart WWW (Standards of Performance for Municipal Solid Waste Landfills) and EG for Municipal Solid Waste Landfills at 40 CFR part 60, subpart Cc. The procedures under which States submit these plans to control existing sources are defined in 40 CFR part 60, subpart B. According to subpart B, the States are required to develop plans within Federal guidelines for the control of designated pollutants. The EPA publishes guideline documents for development of State emission standards along with the promulgation of any NSPS for a designated pollutant. These guidelines apply to designated pollutants and include information such as a discussion of the pollutant's effects, description of control techniques and their effectiveness, costs and potential impacts. Also as guidance for the States, recommended emission limits and times for compliance are set forth, and control equipment which will achieve these emission limits are identified. The emission guidelines for landfill gas are promulgated in 40 CFR part 60. The final section 111(d) emission standards and guidelines for landfill gas were promulgated on March 12, 1996 (61 FR 9905), and codified in the CFR at 40 CFR subparts WWW and Cc, respectively. The emission guideline's specified limits for landfill gas requires affected facilities to operate a control system designed to reduce collected non-methane organic compounds
(NMOC)concentrations by 98 weight-percent, or reduce the outlet NMOC concentration to 20 parts per million or less, using the test methods specified under § 60.754(d). The City of Albuquerque (Bernalillo County), New Mexico submitted its Plan to EPA on May 26, 2006. This **Federal Register** action approves Emission Guidelines
(EG)for existing Municipal Solid Waste
(MSW)Landfills in Albuquerque (Bernalillo County), New Mexico. II. Analysis of Submittal The official procedures for adoption and submittal of State Plans are codified in 40 CFR part 60, subpart B. The EPA promulgated the original provisions on November 17, 1975 and then amended them on December 19, 1995, to incorporate changes specific to solid waste incineration. These changes, which were necessary to conform to the solid waste incineration requirements under section 129 of the Act, are not relevant to MSW landfills. Thus, the procedures described in the original provisions for adopting and submitting State Plans still apply to MSW landfills and are reflected in 40 CFR part 60, subpart B, §§ 60.23 through 60.26. Subpart B addresses public participation, legal authority, emission standards and other emission limitations, compliance schedules, emission inventories, source surveillance, compliance assurance, and enforcement requirements, and cross-references to the MSW landfill EG. The City of Albuquerque (Bernalillo County), New Mexico Plan includes documentation that all applicable subpart B requirements have been met. The City of Albuquerque Environmental Health Department
(AEHD)incorporates the NSPS and cross-references the NSPS for existing facilities to adopt the requirements of the Federal rule. The AEHD has ensured, through this cross-reference process, that all the applicable requirements of the Federal rule have been adopted into the AEHD Plan. The emission limits, reporting and recordkeeping requirements, and other aspects of the Federal rule have been adopted into 20 NMAC 11.71, Municipal Solid Waste Landfills and 20 NMAC 11.63, New Source Performance Standards for Stationary Sources. The City of Albuquerque (Bernalillo County), New Mexico, amended the NSPS to remove the current exclusions from delegation of 40 CFR 60 subpart WWW, Standards of Performance Municipal Solid Waste Landfills. Subpart Cc requires affected existing landfills to be capable of attaining the specified level of emissions within 30 months after the State Plan is federally approved. For compliance schedules for MSW landfills extending more than 12 months beyond the date required for submittal of the plan (December 12, 1996), the compliance schedule must include legally enforceable increments of progress towards compliance for that MSW landfill. Each increment of progress in § 60.21(h) of subpart B must have a compliance date and must be included as an enforceable date in the AEHD Plan. As an alternative, the AEHD must negotiate specific dates for the increments of progress on a facility-by-facility basis, and submit them to the public participation process. A revision to the City of Albuquerque (Bernalillo County), New Mexico Plan must be submitted to EPA once the dates for the increments of progress are established for each affected facility. The AEHD Plan may include such additional increments of progress as may be necessary to permit close and effective supervision of progress towards final compliance. The AEHD did not submit evidence of authority to regulate sources in Indian Country. Therefore, EPA is not approving this AEHD Plan as it relates to those sources. AEHD must submit an updated source inventory once the affected facilities have reported their design capacities and NMOC emissions as required under 40 CFR part 60, subpart Cc (§ 60.35c). In addition, Title V permit applications for the affected facilities are due within one year from the due date of the design capacity reports. III. Final Action In this final action EPA is promulgating a revision to the AEHD Plan and the Code of Federal Regulations, part 62, to adopt the AEHD Plan for the control of landfill gas from MSW landfills, except those located in Indian Country. On May 24, 2006, the City of Albuquerque (Bernalillo County), New Mexico submitted to EPA a plan identifying the existing MSW landfills in Bernalillo County and establishing standards for the control of landfill gas emissions from these facilities. The AEHD Plan includes regulations 20 NMAC 11.71, Municipal Solid Waste Landfills, and regulations 20 NMAC 11.63, Standards of Performance Municipal Solid Waste Landfills, documentation of the public participation process, a source inventory, and other required elements. Nothing in this action should be construed as permitting or allowing or establishing a precedent for any future request for revision to any AEHD Plan. Each request for revision to the AEHD Plan shall be considered separately in light of specific technical, economic, and environmental factors and in relation to relevant statutory and regulatory requirements. Since the City of Albuquerque has not submitted a demonstration of authority over “Indian Country” (as defined in 18 U.S.C. 1151), we are limiting our approval to those areas that do not constitute Indian Country. Under this definition, EPA treats as reservations, trust lands validly set aside for the use of a Tribe even if the trust lands have not been formally designated as a reservation. Any existing designated facility that may exist on “Indian Country” is subject to the Federal plan for the designated facility. See 40 CFR 62.13. The EPA is publishing this action without prior proposal because the Agency views this as a noncontroversial action and anticipates no adverse comments. However, in the “Proposed Rules” section of this **Federal Register** publication, EPA is publishing a separate document that will serve as the proposal to approve these rules should relevant adverse comments be filed. This action will be effective January 23, 2007 unless EPA receives adverse written comments by December 26, 2006. If EPA receives such comments, then it will publish a timely withdrawal in the **Federal Register** informing the public that this direct final rule will not take effect. All public comments received will then be addressed in a subsequent direct final rule based on the proposed rule. The EPA will not institute a second comment period. Parties interested in commenting should do so at this time. If no such comments are received, the public is advised that this rule will be effective on January 23, 2007 and no further action will be taken on the proposed rule. IV. Statutory and Executive Order Reviews Under Executive Order
(EO)12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to EO 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves state and local declarations that rules implementing certain federal standards are unnecessary. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 *et seq.* ). Because this rule approves state and local declarations that rules implementing certain federal standards are unnecessary, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4). This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by EO 13175 (65 FR 67249, November 9, 2000). This action also does not have Federalism implications because it does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in EO 13132 (64 FR 43255, August 10, 1999). This action merely approves state and local declarations that rules implementing certain federal standards are unnecessary, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This rule also is not subject to EO 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant. In reviewing State plan submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a State plan submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a State plan submission, to use VCS in place of a State plan submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 *et seq.* ). The Congressional Review Act, 5 U.S.C. 801 *et seq.* , as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the **Federal Register** . A major rule cannot take effect until 60 days after it is published in the **Federal Register** . This action is not a “major rule” as defined by 5 U.S.C. 804(2). Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by January 23, 2007. Filing a petition for reconsideration by the Administrator of this direct final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements (See 42 U.S.C. 7607(b)(2)). List of Subjects in 40 CFR Part 62 Environmental protection, Administrative practice and procedure, Air pollution control, Intergovernmental relations, Reporting and recordkeeping requirements. Dated: November 9, 2006. Lawrence E. Starfield, Acting Regional Administrator, Region 6. Part 62, chapter I, title 40 of the Code of Federal Regulations is amended as follows: PART 62—[AMENDED] 1. The authority citation for part 62 continues to read as follows: Authority: 42 U.S.C. 7401 *et seq.* Subpart GG—New Mexico 2. Section 62.7855 is revised to read as follows: § 62.7855 New Mexico Environmental Improvement Board.
(a)*Identification of Plan.* Control of landfill gas emissions from existing municipal solid waste landfills, submitted on January 7, 1997.
(b)*Identification of Sources.* The plan applies to all existing municipal solid waste landfills with design capacities greater than or equal to 2.5 million megagrams and non-methane organic emissions greater than or equal to 50 megagrams per year as described in 40 CFR part 60, subpart Cc, under the jurisdiction of the New Mexico State Environmental Improvement Board. 3. Section 62.7856 is revised to read as follows: § 62.7856 Albuquerque/Bernalillo County Air Quality Control Board.
(a)*Identification of Plan.* Albuquerque-Bernalillo County Municipal Solid Waste Landfill Designated Pollutant Plan, as adopted by the Albuquerque/Bernalillo County Air Quality Control Board on November 9, 2005.
(b)*Identification of Sources.* The plan applies to all existing municipal solid waste landfills under the jurisdiction of the Albuquerque/Bernalillo County Air Quality Control Board that commenced construction prior to May 30, 1991, and have not been modified or reconstructed since May 30, 1991, and are subject to the requirements of 40 CFR part 60, subpart Cc. [FR Doc. E6-19861 Filed 11-22-06; 8:45 am] BILLING CODE 6560-50-P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 216 [Docket No. 060629183-6289-02; I.D. 022106A] RIN 0648-AT39 Taking and Importing Marine Mammals; Taking Marine Mammals Incidental to Conducting Precision Strike Weapons Testing and Training by Eglin Air Force Base in the Gulf of Mexico AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Final rule. SUMMARY: NMFS, upon application from Eglin Air Force Base (Eglin AFB), is issuing regulations to govern the unintentional takings of marine mammals incidental to conducting Precision Strike Weapons
(PSW)testing and training in the Gulf of Mexico (GOM). Issuance of regulations and Letters of Authorization
(LOAs)under these regulations governing the unintentional incidental takes of marine mammals in connection with particular activities is required by the Marine Mammal Protection Act
(MMPA)when the Secretary of Commerce (Secretary), after notice and opportunity for comment, finds, as here, that such takes will have a negligible impact on the species and stocks of marine mammals and will not have an unmitigable adverse impact on the availability of them for subsistence uses. These regulations do not authorize Eglin AFB's PSW activities as such authorization is not within the jurisdiction of the Secretary. Rather, NMFS' regulations together with a Letter of Authorization
(LOA)authorize the unintentional incidental take of marine mammals in connection with this activity and prescribe methods of taking and other means of effecting the least practicable adverse impact on marine mammal species and their habitat, and on the availability of the species for subsistence uses. DATES: Effective from December 26, 2006 through December 27, 2011. ADDRESSES: A copy of the application containing a list of references used in this document may be obtained by writing to Mr. P. Michael Payne, Chief, Permits, Conservation and Education Division, Office of Protected Resources, National Marine Fisheries Service, 1315 East-West Highway, Silver Spring, MD 20910-3225, by telephoning the contact listed under FOR FURTHER INFORMATION CONTACT , or at: *http://www.nmfs.noaa.gov/pr/permits/incidental.htm* Documents cited in this rule may also be viewed, by appointment, during regular business hours at the above address or at the Department of the Air Force, AAC/EMSN, Natural Resources Branch, 501 DeLeon St., Suite 101, Eglin AFB, FL 32542-5133. FOR FURTHER INFORMATION CONTACT: Kenneth R. Hollingshead, NMFS, 301-713-2289, ext 128. SUPPLEMENTARY INFORMATION: Background Section 101(a)(5)(A) of the Marine Mammal Protection Act (16 U.S.C. 1361 *et seq.* )
(MMPA)directs the Secretary of Commerce (Secretary) to allow, upon request, the incidental, but not intentional taking of marine mammals by U.S. citizens who engage in a specified activity (other than commercial fishing) within a specified geographical region if certain findings are made and regulations are issued. An authorization may be granted for periods of 5 years or less if the Secretary finds that the taking will have a negligible impact on the species or stock(s) and will not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses, and if regulations are prescribed setting forth the permissible methods of taking and the requirements pertaining to the mitigation, monitoring and reporting of such taking. NMFS has defined “negligible impact” in 50 CFR 216.103 as “an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.” With respect to military readiness activities, the MMPA defines “harassment” as:
(i)any act that injures or has the significant potential to injure a marine mammal or marine mammal stock in the wild [Level A harassment]; or
(ii)any act that disturbs or is likely to disturb a marine mammal or marine mammal stock in the wild by causing disruption of natural behavioral patterns, including, but not limited to, migration, surfacing, nursing, breeding, feeding, or sheltering, to a point where such behavioral patterns are abandoned or significantly altered [Level B harassment]. Summary of Request On February 4, 2004, Eglin AFB submitted a request for a 1-year Incidental Harassment Authorization(IHA) under MMPA section 101(a)(5)(D) and for an LOA (to take effect after the expiration of the IHA), for the incidental, but not intentional taking (in the form of noise-related harassment), of marine mammals incidental to PSW testing within the Eglin Gulf Test and Training Range (EGTTR) for the next five years, as authorized by section 101(a)(5) of the MMPA. The EGTTR is described as the airspace over the GOM that is controlled by Eglin AFB, and is also referred to as the “Eglin Water Range.” PSW missions involve air-to-surface impacts of two weapons, the Joint Air-to-Surface Stand-off Missile (JASSM) AGM-158 A and B and the small-diameter bomb
(SDB)(GBU-39/B), that result in underwater detonations of up to approximately 300 lbs (136 kg) and 96 lbs (43.5 kg, double SDB) of net explosive weight (NEW), respectively. The JASSM is a precision cruise missile designed for launch from outside area defenses to kill hard, medium-hard, soft, and area-type targets. The JASSM has a range of more than 200 nautical miles
(nm)(370 kilometers (km)) and carries a 1,000-lb (453.6 kg) warhead. The JASSM has approximately 300 lbs (136 kg) of TNT equivalent NEW. The explosive used is AFX-757, a type of plastic bonded explosive
(PBX)formulation with higher blast characteristics and less sensitivity to many physical effects that could trigger unwanted explosions. The JASSM would be launched from an aircraft at altitudes greater than 25,000 ft (7620 m). The JASSM would cruise at altitudes greater than 12,000 ft (3658 m) for the majority of the flight profile until it makes the terminal maneuver toward the target. The JASSM exercise involves a maximum of two live shots (single) and 4 inert shots (single) each year for the next 5 years. One live shot will detonate in water and one will detonate in air. Detonation of the JASSM would occur under one of three scenarios:
(1)Detonation upon impact with the target (about 5 ft (1.5 m) above the GOM surface);
(2)detonation upon impact with a barge target at the surface of the GOM; or
(3)detonation at 120 milliseconds after contact with the surface of the GOM. The SDB is a glide bomb. Because of its capabilities, the SDB system is an important element of the Air Force's Global Strike Task Force. The SDB has a range of up to 50 nm (92.6 km) and carries a 217.4-lb (98.6 kg) warhead. The SDB has approximately 48 lbs (21.7 kg) of TNT equivalent NEW. The explosive used is AFX-757. Launch from an aircraft would occur at altitudes greater than 15,000 ft (4572 m). The SDB would commence a non-powered glide to the intended target. The SDB exercise involves a maximum of six live shots a year, with two of the shots occurring simultaneously, and a maximum of 12 inert shots with up to two occurring simultaneously. Detonation of the SDBs would occur under one of two scenarios:
(1)Detonation of one or two bombs upon impact with the target (about 5 ft (1.5 m)above the GOM surface), or
(2)a height of burst
(HOB)test: detonation of one or two bombs 10 to 25 ft (3 to 7.6 m) above the GOM surface. No underwater detonations of the SDB are planned. The JASSM and SDBs would be launched from B-1, B-2, B-52, F-15, F-16, F-18, or F-117 aircraft. Chase aircraft would include F-15, F-16, and T-38 aircraft. These aircraft would follow the test items during captive carry and free flight but would not follow either item below a predetermined altitude as directed by Flight Safety. Other assets on site may include an E-9 turboprop aircraft or MH-60/53 helicopters circling around the target location. Tanker aircraft including KC-10s and KC-135s would also be used. A second unmanned barge may also be on location to hold instrumentation. Targets include a platform of five containers strapped, braced, and welded together to form a single structure and a hopper barge, typical for transportation of grain. The Eglin AFB action would occur in the northern GOM in the EGTTR. Targets would be located in water less than 200 ft (61 m) deep and from 15 to 24 nm (27.8 to 44.5 km) offshore, south of Santa Rosa Island and south of Cape San Blas Site D3-A. On November 24, 2003, the National Defense Authorization Act for Fiscal Year 2004 (NDAA; Public Law 108-136) became law. Included in the NDAA were amendments to Section 101(a)(5) of the MMPA that apply where a “military readiness activity” is concerned. The term “military readiness activity” is defined in Public Law 107-314 (16 U.S.C. 703 note) to include all training and operations of the Armed Forces that relate to combat; and the adequate and realistic testing of military equipment, vehicles, weapons and sensors for proper operation and suitability for combat use. Therefore, pursuant to section 315(b) of the NDAA, NMFS has determined that the test and training exercises proposed by Eglin AFB are considered to be a “military readiness activity.” Comments and Responses On August 3, 2006 (71 FR 44001), NMFS published a proposed rule to authorize the taking of marine mammals incidental to Eglin AFB's PSW activities. During the 30-day public comment period, comments were received from the Marine Mammal Commission (Commission), the Humane Society of the United States
(HSUS)and a member of the public. *Comment 1:* The member of the public is opposed “to the killing and murder of marine mammals for the testing of weapons.” This person recommends that these weapons be tested in other places which have already been reduced to rubble by U.S. weapons. *Response:* Section 101(a)(5)(A) of the MMPA authorizes the incidental, but not intentional, harassment, injury, or mortality of marine mammals provided the taking is having a negligible impact on affected species and stocks of marine mammals, is at the lowest level practicable (i.e., through mitigation), and monitoring and reporting of take is conducted. As provided in this document, Eglin AFB has shown that few or no marine mammals will be seriously injured or killed as a result of Eglin AFB's PSW activities. As NMFS has made a determination that this activity will have a negligible impact on marine mammals, promulgation of these regulations and issuance of the LOA is warranted. In addition, NMFS believes that implementation of the monitoring and mitigation measures required in the regulations and subsequent LOAs will be effective in minimizing or avoiding serious injury or mortality. *Comment 2:* The HSUS noted that it would be extremely helpful if the **Federal Register** notice had contained a map indicating the location of the Eglin EGTTR. *Response:* NMFS posted Eglin AFB's application on its web site (see ADDRESSES ) and noted in the **Federal Register** how that document could be accessed. Figure 1-1 of Eglin's application is a map indicating the target areas proposed for PSW activities. *Comment 3:* The HSUS does not understand why sperm whales are not included for potential taking since the range map for the species in the stock assessment report overlaps with that of both pygmy sperm whales and dwarf sperm whales. The NMFS needs to reconsider impacts to this endangered species. *Response:* Sperm whales in the GOM are located in waters of the continental slope, not in shallow continental shelf waters. For Eglin AFB, the PSW targets would be located in water less than 200 ft (61 m) deep and from 15 to 24 nm (27.8 to 44.5 km) offshore. As a result, sperm whales will not be affected by PSW activities. *Comment 4:* The HSUS notes that the FR notice does not specify the stock(s) of bottlenose dolphins that may be impacted by the PSW activity. The HSUS notes that given the location of the activity in water less than 200 ft (61 m) deep and from 15 to 24 nm (27.8 to 44.5 km) offshore, the stocks most likely affected are the Northern Gulf of Mexico Continental Shelf Stock and the Northern Gulf of Mexico Coastal Stock. Both stocks should be considered likely to be impacted. *Response:* In the proposed **Federal Register** notice for Eglin's PSW activities, NMFS recommended readers reference Waring *et al.*
(2006)for information on potentially impacted marine mammal stocks. Waring et al
(2006)notes that the GOM Continental Shelf Stock may overlap with the GOM coastal stocks and the GOM oceanic stock in some areas and may be genetically indistinguishable from those stocks. To develop an average abundance estimate, data were collected from 1998 to 2001, and survey effort was pooled across all years. The best abundance estimate of bottlenose dolphins for continental shelf waters was 25,320 (CV=0.26) (Fulling *et al.* 2003). This estimate is considered the best estimate because these surveys have the most complete coverage of the species' habitat (Waring *et al.* , 2006). The minimum population
(pmin)for the northern GOM Continental Shelf stock is 20,414 bottlenose dolphins. Based on assumptions made by Waring *et al.* (2006), NMFS estimates that the potential biological removal
(PBR)for the northern GOM Continental Shelf bottlenose dolphin stock is 204. Although no mortality has been observed in commercial fishing, this stock may be subject to incidental take resulting in serious injury or mortality (Waring *et al.* , 2006). The northern GOM coastal stock has been divided into 3 stocks: eastern, northern and western. This stock is located from the shore (or bays) to the 20-m (66-ft) isobath. As the northern stock is distributed from 84° West to the Mississippi River delta, PSW activities would affect only the northern coastal stock. Portions of the coastal stocks may co-occur with the northern GOM continental shelf stock and the bay, sound and estuary stock, the 20-m (66-ft) isobath generally corresponds to survey strata. The northern stock has an estimated population abundance of 4,191 animals (CV=0.21) with a p min of 3,518 (from estimates made in 1993). The PBR is unknown. A total of 1,377 bottlenose dolphins were found stranded in the northern GOM from 1999 through 2003. Of these, 73 or 5 percent showed evidence of human interactions as the cause of death (e.g., gear entanglement, mutilation, gunshot wounds). *Comment 5:* The HSUS is concerned that there have been a high number of deaths of bottlenose dolphins along the Florida Panhandle (and the most heavily impacted stocks have not yet been identified). The relatively high number of bottlenose dolphin deaths that have occurred since 1990 raises a concern that not only are some of the stocks stressed, but they may even be in decline. Adding additional impacts from acoustic or physical trauma is something the stocks can ill afford. *Response:* Waring *et al.*
(2006)describe several potential causes for impacts to bottlenose dolphin stocks in the GOM. These include the potential for takes in commercial fishing, disease and shootings. However, because Eglin AFB's PSW activities will take place only a few times a year, with no serious injury or mortality expected, Eglin's activities are unlikely to add to existing mortality levels. In addition, NMFS believes that impacts to bottlenose dolphins, and other marine mammals, will be minimized or avoided through implementation of the required mitigation and monitoring requirements. As a result, NMFS does not believe that authorizing the taking of bottlenose dolphins by Level B harassment will have more than a negligible impact on the affected dolphin stocks. *Comment 6:* The HSUS notes that NMFS has also considered a proposal by Eglin to conduct assault exercises that may also affect this bottlenose dolphin stock and cumulative impacts are not addressed. *Response:* NMFS has made determinations of negligible impact and issued IHAs to Eglin AFB for the taking of marine mammals incidental to air-to-surface gunnery exercises (71 FR 27695, May 12, 2006), naval explosive ordnance exercises at Santa Rosa Island (70 FR 51341, August 30, 2005; 71 FR 35870, June 22, 2006) and previously for the PSW activity (70 FR 48675, August 19, 2005). Cumulative impacts from Eglin AFB's military activities on bottlenose dolphins (and other marine mammals) in addition to cumulative impacts from shipping, oil and gas exploration and production and commercial fishing on marine mammals have been addressed in several PEAs developed for Eglin AFB activities and adopted by NMFS for those IHAs mentioned above. Findings of No Significant Impact (FONSIs) have been made by Eglin AFB and NMFS as a result of those environmental studies. In contrast to the potential serious injury and mortality from commercial fishing and ship strikes, and Level B harassment from oil and gas seismic exploration, NMFS believes that the cumulative impact from Eglin AFB's PSW exercises is expected to be negligible. For Eglin AFB, cumulative impacts on marine mammals from all activities indicate that no marine mammals would be killed during a single year of activities, that 6 dolphins may be injured and 480 dolphins may be harassed annually. Additionally, NMFS anticipates that with the required mitigation measures, these numbers will be lower. *Comment 7:* The Commission recommends NMFS grant the requested authorizations provided that Eglin AFB conduct all practicable monitoring and mitigation measures to afford the potentially affected marine mammal species adequate protection from serious and lethal injury. *Response:* The monitoring effort for PSW is similar to that used in previous ship-shock actions wherein detonations of 10,000 lbs (4536 kg) were used without any serious injury or mortality being detected during extensive follow-up monitoring. Eglin AFB has calculated the potential for a marine mammal to be seriously injured or killed as a result of PSW activities (see Tables 2,3 and 4 later in this document). As noted, while it is unlikely that a marine mammal will be seriously injured or killed, a small potential exists that a marine mammal may be missed during the aerial and vessel monitoring program. *Comment 8:* The HSUS notes that post-mission monitoring will be conducted by vessels only, which will roam the area for 2 hours. In order to determine impact from exercises, this post-exercise monitoring relies on animals floating immediately or resurfacing within a few days, if mortally wounded; and then being found by cooperating stranding networks. The HSUS notes that stranding networks do not regularly survey the coastline for carcasses and, when discovered, they are often in a state of decomposition such that the cause of death is not readily ascertained. *Response:* While Eglin AFB does not routinely monitor Eglin AFB shoreline for strandings, they have a marine animal stranding program that responds to strandings when alerted by personnel. In addition, frequent offshore activity by Eglin AFB personnel will alert the network to any injured or dead marine mammals observed. However, NMFS believes that, if a marine mammal was seriously injured or killed as a result of PSW activities, a mortality would occur very close to the detonation (see Table 1) and would be observed during the subsequent post-event monitoring. The HSUS is correct that often these animals are decomposed and the cause of death cannot be determined. Currents and counter-currents both factor into where a marine mammal might eventually resurface if mortally wounded as a result of PSW activities and the animal sinks prior to detection. When decomposition advances, an animal that initially sank would resurface. Depending upon the amount of time between sinking and subsequent surfacing, the animal may be moved by surface and/or subsurface currents in a direction different from where one would surmise it would surface based solely on surface currents. Once the animal surfaces, wind and surface currents (which might not be the same direction) would affect where a marine mammal might eventually be located when a follow-up survey was initiated. As this could mean a very large area for accurate post-detonation surveying, this survey effort would require an aircraft. Also, a dolphin that surfaced a significant distance from the detonation site would be indistinguishable from a dolphin that died from other causes. To recover the animal for necropsy would require a support vessel. Considering the low probability of a marine mammal being seriously injured or killed as a result of Eglin AFB's PSW activities, the high cost of large scale aerial and vessel surveys, and the low likelihood that a link between the cause of the dolphin's death and PSW activities could be made after several days underwater, NMFS does not believe lengthy post-event monitoring is warranted. *Comment 9:* The HSUS states that because this area has recently been subject to mortality events, carcasses seen along the beaches may not necessarily be linked to the Air Force activity unless necropsies are done. This is something that will not be possible for most carcasses. Thus, even if the cause of death is related to Air Force activities, it may remain undetected. However, the FR notice states that death is unlikely because of the precautionary nature of the mitigation measures. The HSUS does not agree that the mitigation measures are precautionary. *Response:* While the stranding network monitoring the beaches of the Florida Panhandle or Eglin personnel monitoring Eglin AFB beaches may recover a deceased marine mammal, it is true that cause-and-effect may be difficult after an animal spends a significant time at sea. However, animals sighted during the 2-hour post-event monitoring would be available for possible rescue and rehabilitation or euthanasia and/or necropsy by a qualified individual. NMFS believes that the mitigation measures, which are designed to detect marine mammals prior to detonation and preventing subsequent potential injury or mortality are the best that can be successfully implemented in view of the need to also ensure the safety of the monitoring teams (see text for details). However, post-event activities, such as determining a cause of mortality are considered monitoring measures and do not affect the actual taking of marine mammals. *Comment 10:* The HSUS notes that the **Federal Register** notice states there will be a buffer zone of 1.0 nm (1.8 km) established outside the zone of influence, which is stated to be 2.0 nm (3.7 km) for the JASSM or 5-10 nm (9.3-18.5 km) for the SDB with a buffer zone of 2.5 - 5 nm (4.6-9.3 km). However, the **Federal Register** notice acknowledges that marine mammal mitigation effectiveness may be reduced for some missions due to mandatory safety buffers which limit the time and type of marine mammal mitigation. This is not acceptable. Why bother having a mitigation plan if part of the plan is to obviate it if it seems impractical? *Response:* Because visual observation is the primary mitigation technique for PSW tests, mitigation effectiveness is affected by the distance of observers from the target. Protected species observers will survey from inside the Zone of Influence
(ZOI)until 1 to 1.5 hours before weapon launch, depending on the specific type of test. At this time, observers will be required to move outside the ZOI/safety zone. This is a mandatory requirement directed by Air Force safety policy, and applies to Air Force personnel as well as civilian contracted observers. Both the JASSM and SDB are precision-guided munitions. However, due in part to the long distance from which these weapons are potentially launched (40 to 200 nautical miles), slight errors in flight trajectory, though not expected, could jeopardize the life of anyone within the safety zone. In addition to Air Force safety policy, the MMPA as amended by the NDAA requires the Secretary of Commerce to consider personnel safety when making incidental take determinations for military readiness activities. Aerial observers will leave the area 1 to 1.5 hours before weapon launch. However, ship-based observers will continue to monitor for protected species from the edge of the safety zone, up to the time of impact. The safety zone is larger for the SDB due to differences in flight characteristics. Therefore, observers may be farther from the target during SDB tests than during JASSM tests. *Comment 11:* The HSUS notes that there are two types of monitoring: aerial and shipboard. Aerial monitoring will occur using observers experienced in marine mammal surveying and familiar with the species that may occur in the area. It is not stated whether these personnel will be NMFS staff or how they might be “experienced” in survey methodology and marine mammal species identification, especially in light of the fact that identifying pygmy from dwarf sperm whales is difficult even for NMFS science center personnel. *Response:* NMFS does not provide marine mammal scientists to Eglin AFB for this, or any other project. Eglin AFB uses biologically-trained marine mammal observers, who are either employees or contract personnel, that have been approved in advance by NMFS. This is standard practice for all authorizations under section 101(a)(5) of the MMPA. It should be recognized that using NMFS scientists would reduce our agency's ability to conduct important marine mammal research. As a result, private companies have been established to train and provide trained biologists for activities such as this one. Next, it is widely recognized that it is difficult to identify some marine mammal species, generally referred to as being cryptic species. Usually, unidentified species are listed as such and then, later, tallied based on known stock proportions for the geographic area. However, when marine mammal observers are monitoring a safety or buffer zone, it is less critical that they be able to identify an animal by species; rather it is more important at the time that they are able to actually see the marine mammal. *Comment 12:* The HSUS notes that the **Federal Register** notice does not provide information on the type of aircraft used although the notice discusses turboprop craft, tanker aircraft and helicopters being involved in the exercise, none of which is well suited for this purpose. *Response:* The application notes that Eglin AFB plans to use helicopters for monitoring marine mammal safety zones for this activity. Helicopters are an effective means to monitor the relatively small safety zones for PSW activities. Alternatively, Eglin AFB will be authorized to use types of aircraft that are often used by marine mammal observers. While other aircraft (turboprop and tankers) may be used during the PSW exercise, they will not be used to monitor safety zones. *Comment 13:* The HSUS notes that with regard to shipboard monitoring, the **Federal Register** notice states that it will be from the highest point possible on the mission ship. The notice discusses barges that will be on-site. The highest point possible, may or may not be effective depending upon the size of the vessel involved but that is not specified and should be. *Response:* As barges are the target for PSW detonations, the target barge and nearby instrumentation barge (if one is used) are not an appropriate vessel for marine mammal observations. As a result of this comment, NMFS has clarified in the regulations that the marine mammal observation platform must provide observers a platform to see a major portion of the safety zone. It must also be mobile in order to observe the largest area possible. However, as this rule will be effective for a 5-year period, specifying the exact type of vessel Eglin AFB will use for the vessel monitoring program is not practical since it could preclude use of larger, more effective platforms. *Comment 14:* The HSUS notes the **Federal Register** notice states that the onboard observers will be familiar with the marine life of the area. This is not sufficiently specific to be reassuring. The small size of the marine mammals and the long dive time of sperm whales and dwarf and pygmy sperm whales makes them particularly difficult to observe, as is referenced throughout stock assessments and published literature. *Response:* As mentioned previously, sperm whales are unlikely to be encountered in the shallow, shelf waters off Eglin AFB. In this document, NMFS clarifies that Eglin AFB must use biologists trained in the at-sea detection of marine mammals. *Comment 15:* The HSUS believes that the mitigation measures should also include acoustic monitoring techniques. *Response:* NMFS does not believe that additional mitigation is warranted for this activity. Passive acoustic monitoring (PAM), which is designed to detect vocalizing marine mammals, can be effective when safety zones are significantly large so that visual monitoring effectiveness might be compromised. In this case, Eglin AFB has implemented an aerial monitoring program that is believed to be more effective than using PAM because of increased visibility of marine mammals in the shallow water areas Additionally, when using PAM in shallow water areas with relatively small safety zones it is difficult to determine whether the marine mammal is actually within the safety zone due to reflection and refraction of the acoustic signal. *Comment 16:* The HSUS believes that extended monitoring (of the exercise) by skilled observers is critical in highly mobile species which often have long dive times. *Response:* NMFS agrees that skilled marine mammal observers are critical for detecting marine mammals within a safety zone and delaying detonations (in this case the launch) until the marine mammal(s) depart from the safety zone. The length of time for marine mammal observations depends on the type and weight of the explosive which influences the size of the safety zone, as described later in this document. These observation times are sufficient to ensure that a marine mammal is detected prior to detonation. *Comment 17:* The Commission recommends that NMFS cooperate with Eglin AFB to develop a long-term strategy to monitor the abundance and distribution of marine mammals in the subject activity area to ensure that the proposed activity is not having any population-level effects on marine mammals over the 5 years that the regulations are in effect. The Commission would be pleased to assist with the development of such a strategy. *Response:* While NMFS and Eglin would be pleased to discuss such a monitoring strategy with the Commission, it is unclear whether a monitoring program could be designed that would be able to make a determination that the injury of approximately 6 dolphins and an additional 480 that may be harassed by all Eglin AFB activities was having population level impacts. As NMFS has been unable to identify mortality levels in the GOM from commercial fishing, shipping, and pollution (Waring *et al.* , 2006), it is unlikely that Level B harassment by Eglin's military-readiness activities can be empirically determined to be more than negligible, either individually or cumulatively. Finally, while monitoring the impacts that an activity might have on marine mammal stocks is the responsibility of an LOA applicant, undertaking studies on the distribution and abundance of these stocks is the responsibility of NMFS and other agencies. To the extent that these studies are underfunded does not mean that that responsibility should be transferred to LOA holders. Description of Marine Mammals Affected by the Activity There are 29 species of marine mammals documented as occurring in Federal waters of the GOM. Information on those species that may be impacted by this activity are discussed in the Eglin AFB application and Eglin AFB's Final PEA. A summary of that information is provided in this section. General information on these marine mammal species can be found in Wursig *et al.*
(2000)and in the NMFS Stock Assessment Report (Waring, 2006). The NMFS Stock Assessment Report is available at: *http://www.nefsc.noaa.gov/nefsc/publications/tm/tm194/* . Marine mammal species that potentially occur within the EGTTR include several species of cetaceans and one sirenian, the West Indian manatee. During winter months, manatee distribution in the GOM is generally confined to southern Florida. During summer months, a few may migrate north as far as Louisiana. However, manatees primarily inhabit coastal and inshore waters and rarely venture offshore. PSW missions would be conducted offshore. Therefore, effects on manatees are considered very unlikely. Cetacean abundance estimates for the study area are derived from GulfCet II (Davis *et al.* , 2000) aerial surveys of the continental shelf within the Minerals Management Service Eastern Planning Area, an area of 70,470 km 2 . Texas A&M University and NMFS conducted these surveys from 1996 to 1998. Abundance and density data from the aerial survey portion of the survey best reflect the occurrence of cetaceans within the EGTTR, given that the survey area overlaps approximately one-third of the EGTTR and nearly the entire continental shelf region of the EGTTR where military activity is highest. The GulfCet II aerial surveys identified different density estimates of marine mammals for the shelf and slope geographic locations. Only the shelf data is used because PSW missions will only be conducted on the shelf. In order to maximize species conservation and protection, the species density estimate data were adjusted to reflect more realistic encounters of these animals in their natural environment. Refer to “ *Conservative Estimates of Marine Mammal Densities* ” in this document and Eglin AFB's application for more information on density estimates. The four marine mammal species observed during GulfCet II aerial surveys on the shelf that have the potential to be present in the PSW test area and thereby affected are: Atlantic bottlenose dolphins ( *Tursiops truncatus* ), Atlantic spotted dolphins ( *Stenella frontalis* ), dwarf sperm whales ( *Kogia simus* ), and pygmy sperm whales ( *Kogia breviceps* ). Brief descriptions of these species were provided in earlier **Federal Register** notices (69 FR 21816, April 22, 2004; 70 FR 48675, August 19, 2005) and are not repeated here. Impacts to Marine Mammals Potential impacts to marine mammals from the detonation of the PSWs and SDBs include both mortality and serious injury, as well as Level B harassment in the form of a temporary shift in hearing sensitivity (called temporary threshold shift
(TTS)and behavioral responses due to TTS. Although unlikely due to the extensive mitigation measures proposed herein, marine mammals have the potential to be killed or injured as a result of a blast due to the response of air cavities in the body, such as the lungs and bubbles in the intestines. Any effects would likely be most severe in near-surface waters where the reflected shock wave creates a region of negative pressure called “cavitation.” This is a region of near total physical trauma within which no animals would be expected to survive. A second criterion used by NMFS for categorizing taking by mortality is the onset of extensive lung hemorrhage. Extensive lung hemorrhage is considered to be debilitating and thereby potentially fatal. Suffocation caused by lung hemorrhage would likely be the major cause of any marine mammal death from underwater shock waves. For the acoustic analysis in this document, the exploding charge is characterized as a point source. The impact thresholds used for marine mammals relate to potential effects on hearing from underwater noise from detonations. For the explosives in question, actual detonation heights would range from 0 to 25 ft (7.6 m) above the water surface. Detonation depths would range from 0 to 80 ft (73.2 m) below the surface. To bracket the range of possibilities, detonation scenarios just above and below the surface were used by Eglin AFB to analyze bombs set to detonate on contact with the target barge. Potentially, the barge may interact with the propagation of noise into the water. However, barge effects on the propagation of noise into the water column cannot be determined without in-water noise monitoring at the time of detonation. Potential exposure of a sensitive species to detonation noise could theoretically occur at the surface or at any number of depths with differing consequences. As a conservative measure, a mid-depth scenario was selected by Eglin AFB to ensure the greatest direct path for the harassment ranges, and to give the greatest impact range for the injury thresholds. Explosive Criteria and Thresholds for Impact of Noise on Marine Mammals Criteria and thresholds that are the basis of the analysis of PSW noise impacts to cetaceans were initially used in U.S. Navy's environmental impact statements
(EISs)for ship shock trials of the SEAWOLF submarine and the USS WINSTON S. CHURCHILL vessel (DON, 1998; DON, 2001) and accepted by NMFS as representing the best science available (see 66 FR 22450, May 4, 2001). With a single exception mentioned in this document, NMFS believes that the criteria developed for the shock trials represent the best science available. The following sections summarize the information contained in those actions. Criteria and Thresholds: Lethality The criterion for mortality for marine mammals used in the CHURCHILL Final EIS is 'onset of severe lung injury.' This is conservative in that it corresponds to a 1 percent chance of mortal injury, and yet any animal experiencing onset severe lung injury is counted as a lethal take. The threshold is stated in terms of the Goertner
(1982)modified positive impulse with value “indexed to 31 psi-ms.” Since the Goertner approach depends on propagation, source/animal depths, and animal mass in a complex way, the actual impulse value corresponding to the 31-psi-ms index is a complicated calculation. The acoustic threshold is derived from: I1% = 42.9 (M/34)1/3 psi-ms, where M is animal mass in kg. Again, to be conservative, CHURCHILL used the mass of a calf dolphin (at 12.2 kg), so that the threshold index is 30.5 psi-ms. Criteria and Thresholds: Injury (Level A Harassment) Non-lethal injurious impacts are defined in this document as eardrum rupture (i.e., tympanic-membrane
(TM)rupture) and the onset of slight lung injury. These are considered indicative of the onset of injury. The threshold for TM rupture corresponds to a 50 percent rate of rupture (i.e., 50 percent of animals exposed to the level are expected to suffer TM rupture); this is stated in terms of an EFD value of 1.17 in-lb/in 2 , which is about 205 dB re 1 microPa 2 -s. (Note: EFD is the time integral of the squared pressure divided by the impedance in values of dB re 1 microPa 2 -s.) This recognizes that TM rupture is not necessarily a life-threatening injury, but is a useful index of possible injury that is well-correlated with measures of permanent hearing impairment (e.g., Ketten
(1998)indicates a 30 percent incidence of permanent threshold shift
(PTS)at the same threshold). Criteria and Thresholds: Non-injurious Impacts (Level B Harassment) Marine mammals may also be harassed due to noise from PSW missions involving high explosive detonations in the EGTTR. The CHURCHILL criterion for non-injurious harassment from detonations, as established through NMFS' incidental take rulemaking (see 66 FR 22450, May 4, 2001), is temporary (auditory) threshold shift (TTS), which is a slight, recoverable loss of hearing sensitivity (DoN, 2001). The criterion for TTS used in this document is 182 dB re 1 microPa 2 -s maximum EFD level in any 1/3-octave band at frequencies above 100 Hz for all toothed whales (e.g., sperm whales, beaked whales, dolphins). (Note: 1/3-octave band is the EFD in a 1/3-octave frequency band; the 1/3 octave selected is the hearing range at which the affected species' hearing is believed to be most sensitive.) A 1/3-octave band above 10 Hz is used for impact assessments on all baleen whales, but those species do not inhabit the affected environment of this project. The CHURCHILL rulemaking also established a second criterion for estimating TTS threshold: 12 psi. The appropriate application of this second TTS criterion is currently under debate, as this 12-psi criterion was originally established for estimating the impact of a 10,000-lb (4536-kg) explosive to be employed for the Navy's shock trial. It was introduced to provide a more conservative safety zone for TTS when the explosive or the animal approaches the sea surface (for which cases the explosive energy is reduced but the peak pressure is not). For large explosives (2000 to 10,000 lbs (907-4536 kg)) and the explosives and/or the mammals not too close to the surface, the TTS impact zones for these two TTS criteria are approximately the same. However, for small detonations, some acousticians contend the ranges for the two TTS thresholds may be quite different, with ranges for the peak pressure threshold several times greater than those for energy. In its application, Eglin AFB endorsed an approach, currently being developed by the Navy, for appropriately “scaling” the peak pressure threshold, in order to more accurately estimate TTS for small shots while preserving the safety feature provided by the peak pressure threshold. As such, in its application, Eglin AFB requested the energy-based criterion for TTS, 182 dB re 1 microPa 2 -s (maximum EFD level in any 1/3-octave band), be used alone to conservatively estimate the zone in which non-injurious (Level B) harassment of marine mammals may occur. NMFS acousticians have reviewed the scientific basis for this proposal and agree, in part, with the statements made by Eglin AFB that the pressure criterion of 12 psi is not fully supportable for small charges or when either the charge or the recipient are at the surface. The model used in CHURCHILL assumed the detonation occurred in deep water with the charge placed below 318 ft (100 m) in depth, and that the bottom depth is at least 20 times the detonation depth. In contrast, in PSW missions, both the detonation and the recipient will be near the surface in relatively shallow water. Therefore, although this issue remains under review by NMFS and the Navy for future Navy actions involving small net weight explosives, as an interim criterion for this rule and LOAs, NMFS is adopting the experimental findings of Finneran *et al.*
(2002)that TTS can be induced at a pressure level of 23 psi (at least in belugas). As explained here, this is considered conservative since a 23-psi pressure level was below the level that induced TTS in bottlenose dolphins. Finneran *et al.* (2000; as described in Finneran *et al.* (2002)) conducted a study designed to measure masked TTS
(MTTS)in bottlenose dolphins and belugas exposed to single underwater impulses. This study used an “explosion simulator”
(ES)to generate impulsive sounds with pressure waveforms resembling those produced by distant underwater explosions. No substantial (i.e., 6 dB or larger) threshold shifts were observed in any of the subjects (two bottlenose dolphins and 1 beluga) at the highest received level produced by the ES: approximately 70 kPa (10 psi) peak pressure, 221 dB re re 1 micro Pa peak-to-peak (pk-pk) pressure, and 179 dB re 1 microPa 2 -s total EFD. In Finneran *et al.* (2002), a watergun was substituted for the ES because it is capable of producing impulses with higher peak pressures and total energy fluxes than the pressure waveforms produced using the ES. It was also preferable to other seismic sources because its impulses contain more energy at higher frequencies, where odontocete hearing thresholds are relatively low (i.e., more sensitive). Hearing thresholds were measured at 0.4, 4 and 30 kHz. MTTSs of 7 and 6 dB were observed in the beluga at 0.4 and 30 kHz, respectively, approximately 2 minutes following exposure to single impulses with peak pressures of 160 kPa (23 psi), pk-pk pressures of 226 dB re 1 microPa, and total EFD of 186 dB re 1 microPa 2 -s. Thresholds returned to within 2 dB of the pre-exposure value approximately 4 minutes post exposure. No MTTS was observed in the single bottlenose dolphin tested at the highest exposure conditions: peak pressure of 207 kPa (30 psi), 228 dB re 1 microPa pk-pk pressure, and 188 dB re 1 microPa 2 -s total energy flux. Therefore, until more scientific information is obtained, NMFS has determined that the pressure criterion for small explosions can be amended from 12 psi to 23 psi. At this time, NMFS believes that setting the pressure metric of the dual explosive criteria at 23 psi is conservative, while setting the pressure metric at a higher level has not been scientifically validated at this time. Table 1 illustrates estimated zones of impact for potential mortality (31 psi-ms), Level A harassment (injury; 205 dB EFDL) and Level B harassment (TTS; 182 dB EFDL/23 psi). Table 1. Zones of Impact for Underwater Explosions (Mid-depth Animal). Ordnance NEW (TNT in lb) Depth or Height of Explosion
(m)Ranges for 31 psi -ms
(m)Ranges for EFDL >205 dB
(m)Ranges for 182 dB EFDL in 1/3-Octave Band/ 23 psi(m) *Summer* Single SDB 48 1.5 7.6 n/a n/a 12 12 447 447 Double SDB 96 1.5 7.6 n/a n/a 16 17 550 550 Single JASSM 300 0.3 >6.1 75 320 170 550 770 2490 *Winter* Single SDB 48 1.5 7.6 n/a n/a 12 12 471 471 Double SDB 96 1.5 7.6 n/a n/a 16 16 594 594 Single JASSM 300 0.3 >6.1 75 320 170 590 871 3250 Criteria and Thresholds: Behavioral Modification (Sub-TTS) No strictly sub-TTS behavioral responses (i.e., Level B harassment) are anticipated with the JASSM and SBD test activities because there are no successive detonations (the 2 SBD explosions occur almost simultaneously) which could provide causation for a behavioral disruption rising to the level of a significant alteration or abandonment of behavioral patterns without also causing TTS. Also, repetitive exposures (below TTS) to the same resident animals are highly unlikely due to the infrequent JASSM and SBD test events, the potential variability in target locations, and the continuous movement of marine mammals in the northern GOM. Incidental Take Estimates For Eglin AFB's PSW exercises, three key sources of information are necessary for estimating potential take levels from noise on marine mammals:
(1)The zones of influence
(ZOIs)for noise exposure;
(2)The number of distinct firing or test events; and
(3)the density of animals that potentially reside within a ZOI. Noise ZOIs were calculated for depth detonation scenarios of 1 ft (0.3 m) and 20 ft (6.1 m) for lethality and for harassment (both Level A and Level B). To estimate the number of potential “takes” or animals affected, the adjusted data on cetacean population information from ship and aerial surveys were applied to the various ZOIs. Table 1 in this document gives the estimated ZOI ranges for various explosive weights for summer and wintertime scenarios for JASSM and SDB. For example, for JASSM, the range, in winter, extends to 320 m (1050 ft), 590 m (1936 ft) and 3250 m (10663 ft) for potential mortality (31 psi-ms), injury (205 dB re 1 microPa 2 -s) and TTS (182 dB re 1 microPa 2 -s/23 psi zones), respectively. SDB scenarios are for in-air detonations at heights of 1.5 m (5 ft) and 7.6 m (25 ft) during both seasons (whichever criterion provides the largest zone is used for calculating potential impacts). JASSM detonations were modeled for near- surface (i.e., 1-ft (0.3-m) depth) and below-surface (>20-ft depth (>6.1 m)). To account for “double” (2 nearly simultaneous) events, the charge weights are added (doubled) when modeling for the determination of energy estimates (since energy is proportional to weight). Pressure estimates only utilize the single charge weights for these estimates. Applying the lethality (31 psi) and harassment (205 and 182 dB EFDL) impact ranges shown in Table 1 to the calculated species densities (in Table 3-1 in Eglin AFB's application), the number of animals potentially occurring within the various ZOIs without implementation of mitigation was estimated. These results are presented in Tables 2 and 3 in this document. In summary, without any mitigation, a small possibility exists for one bottlenose and one Atlantic spotted dolphin to be exposed to blast levels sufficient to cause mortality. Additionally, less than 2 cetaceans might be exposed to noise levels sufficient to induce Level A harassment (injury) (205 dB re 1 microPa 2 -s) annually, and as few as 31 or as many as 52 cetaceans (depending on the season and water depth) could potentially be exposed (annually) to noise levels sufficient to induce Level B harassment in the form of TTS (182 dB re 1 microPa 2 -s/23 psi). While none of these impact estimates consider the proposed mitigation measures that will be employed by Eglin AFB to minimize potential impacts to protected species, NMFS proposes to authorize Eglin AFB to lethally take one marine mammal, 2 marine mammals by Level A harassment, and up to 53 marine mammals by Level B harassment
(TTS)annually. The proposed mitigation measures described later in this document are anticipated to reduce potential impacts to marine mammals, in both numbers and degree of severity. Table 2. Marine Mammal Densities and Risk Estimates for Lethality (31 psi) Noise Exposure for All In-Water and In-Air Detonations Species Density Number of Animals Exposed from All In-Air and In-Water Detonations Adjusted Number Exposed Based on 30% Mitigation Effectiveness Summer Dwarf/pygmy sperm whale 0.013 0.004 0.003 Bottlenose dolphin 0.81 0.262 0.183 *Atlantic spotted dolphin* 0.677 0.219 0.153 *T. truncatus/S. frontalis* 0.053 0.017 0.012 TOTAL 0.502 0.351 Winter Dwarf/pygmy sperm whale 0.013 0.004 0.003 Bottlenose dolphin 0.81 0.262 0.183 *Atlantic spotted dolphin* 0.677 0.219 0.153 *T. truncatus/S. frontalis* 0.053 0.017 0.012 TOTAL 0.502 0.351 Table 3. Marine Mammal Densities and Risk Estimates for Level A Harassment (205 dB EFD 1/3-Octave Band) Noise Exposure for All In-Water and In-Air Detonations Species Density Number of Animals Exposed from All In-Air and In-Water Detonations Adjusted Number Exposed Based on 30% Mitigation Effectiveness Summer Dwarf/pygmy sperm whale 0.013 0.014 0.010 Bottlenose dolphin 0.81 0.893 0.625 *Atlantic spotted dolphin* 0.677 0.747 0.523 *T. truncatus/S. frontalis* 0.053 0.058 0.041 TOTAL 1.712 1.198 Winter Dwarf/pygmy sperm whale 0.013 0.014 0.010 Bottlenose dolphin 0.81 0.893 0.625 *Atlantic spotted dolphin* 0.677 0.747 0.523 *T. truncatus/S. frontalis* 0.053 0.058 0.041 TOTAL 1.712 1.198 Table 4. Marine Mammal Densities and Combined Risk Estimates for the 23 psi Peak Pressure and the 182 dB EFD 1/3-Octave Band Level B Harassment Metrics for All In-Water and In-Air Detonations Species Density Number of Animals Exposed from All In-Air and In-Water Detonations Adjusted Number Exposed Based on 30% Mitigation Effectiveness Summer Dwarf/pygmy sperm whale 0.013 0.26 0.182 Bottlenose dolphin 0.81 16.209 11.3463 *Atlantic spotted dolphin* 0.677 13.547 9.4829 *T. truncatus/S. frontalis* 0.053 1.061 0.7427 TOTAL 31.076 21.7532 Winter Dwarf/pygmy sperm whale 0.013 0.44 0.308 Bottlenose dolphin 0.81 27.387 19.1709 *Atlantic spotted dolphin* 0.677 22.89 16.023 *T. truncatus/S. frontalis* 0.053 1.792 1.2544 TOTAL 52.509 36.7563 Mitigation and Monitoring Eglin AFB is required to establish and survey relevant ZOIs and buffer zones around a planned detonation site. The ZOI for the JASSM will be a radius of 2.0 nm (3.7 km) around the detonation site and the buffer zone will be established at a 1.0-nm (1.85-km) radius outside the safety zone. The ZOI for the SDB will be a radius of 5-10 nm (9.3-18.5 km) depending upon weight of the explosive and the buffer zone will be established at a 2.5 - 5 nm (4.6 -18.5 km) radius outside the SDB ZOI. Prior to the planned detonation, trained marine mammal observers
(MMOs)aboard aircraft will survey (visually monitor) the ZOI and buffer area, a very effective method for detecting cetaceans. The aircraft/helicopters will fly approximately 500 ft (152 m) above the sea surface to allow observers to scan a large distance. In addition, trained MMOs aboard surface support vessels will conduct ship-based monitoring for non-participating vessels as well as protected species. Using 25X power “Big-eye” binoculars, surface observation would be effective out to several kilometers. Weather that supports the ability to sight marine life is required to effectively mitigate impacts on marine life (DON, 1998). Wind, visibility, and surface conditions in the GOM are the most critical factors affecting mitigation operations. Higher winds typically increase wave height and create “white cap” conditions, both of which limit an MMO's ability to locate surfacing marine mammals. Therefore, PSW missions would be delayed if the Beaufort scale sea state is greater than 3.5. Visibility is also a critical factor for flight safety issues. A minimum ceiling of 305 m (1000 ft) and visibility of 5.6 km (3 nm) is required to support mitigation and safety-of-flight concerns (DON, 2001). Aerial Survey/Monitoring Team Eglin AFB will complete an aerial survey before each mission and train personnel to conduct aerial surveys for protected species. The aerial survey/monitoring team would consist of two MMOs. Aircraft provide a preferable viewing platform for detection of protected marine species. Each aerial MMO will be experienced in marine mammal surveying and familiar with species that may occur in the area. Each aircraft would have a data recorder who would be responsible for relaying the location, the species if possible, the direction of movement, and the number of animals sighted. Standard line transect aerial surveying methods, as developed by NMFS (Blaylock and Hoggard, 1994; Buckland *et al.* , 1993) would be used. Aerial MMOs are expected to have above average to excellent sighting conditions at sunrise to 1.85 km (1 nm) on either side of the aircraft within the weather limitation noted previously. Observed marine mammals would be identified to the species or the lowest possible taxonomic level and the relative position recorded. In order to ensure adequate daylight for pre- and post-mission monitoring, the mission activity would occur no earlier than 2 hours after sunrise and no later than 2 hours prior to sunset. Shipboard Monitoring Team Eglin AFB will conduct shipboard monitoring to reduce impacts to protected species. The monitoring would be staged from the highest point possible on a mission ship. MMOs would be familiar with the protected resources (marine mammals/sea turtles) of the area. The MMOs on the vessel must be equipped with optical equipment with sufficient magnification (e.g., 25X power “Big-Eye” binoculars, as these have been successfully used in monitoring activities from ships), which should allow the observer to sight surfacing mammals from as far as 11.6 km (6.3 nm) and provide overlapping coverage from the aerial team. A team leader would be responsible for reporting sighting locations, which would be based on bearing and distance. The aerial and shipboard monitoring teams will have proper lines of communication to avoid communication deficiencies. The MMOs from the aerial team and operations vessel will have direct communication with the lead scientist aboard the operations vessel. The lead scientist will be a qualified marine biologist familiar with marine mammal surveys. The lead scientist reviews the range conditions and recommends a Go/No-Go decision to the test director. The test director makes the final Go/No-Go decision. Mitigation Procedures Plan All zones (injury, ZOI and buffer zones) are monitored by trained MMOs. Although unexpected, any mission may be delayed or aborted due to technical reasons. Actual delay times depend on the aircraft supporting the test, test assets, and range time. Should a technical delay occur, all mitigation procedures would continue and remain in place until either the test takes place or is canceled. The ZOI and buffer zone around JASSM missions will be monitored by shipboard observers from the highest point of the vessel. Vessels will be positioned as close to the safety zone as allowed without infringing on the missile flight corridor. The SDB has many mission profiles and does not have a flight termination system; therefore, the safety buffer zone may be quite large (5-10 nm radius (9.3-18.5 km)). PSW mitigation must be regulated by Air Force safety parameters (pers. comm. Monteith and Nowers, 2004) to ensure personnel safety. Therefore, in compliance with AF safety parameters and the constraints on mitigation under the MMPA, as amended by the NDAA, marine mammal mitigation effectiveness may be reduced for some missions due to mandatory safety buffers which limit the time and type of marine mammal mitigation. Even though mitigation may be limited for PSW and SDB missions, all SDB detonations are above the water surface (5-25 ft (1.5-7.6 m) above the surface) and of much smaller net explosive weight than JASSM. Table 5 describes safety zones and clearance times for JASSM and SDB missions (time in minutes). Table 5. Safety Zone Monitoring Time Frames and Effectiveness Flight Time Safety Clearance Time for Vessels before Launch Safety Clearance Time for Aircraft before Launch Total Time of Vessel Safety Clearance before Detonation Total Time of Aircraft Safety Clearance before Detonation Human Safety Area JASSM :30 - 1 hr :30 :15 1:30 1:15 2 NM SDB :20 :60 :30 1:20 :50 5-10 NM Stepwise mitigation and monitoring procedures for PSW missions are outlined here. Pre-mission Monitoring The purposes of pre-mission monitoring are to
(1)evaluate the test site for environmental suitability of the mission (e.g., relatively low numbers of marine mammals and turtles, few or no patches of *Sargassum* , etc.) and
(2)verify that the ZOI is free of visually detectable marine mammals. On the morning of the test, the lead scientist would confirm that the test sites can still support the mission and that the weather is adequate to support mitigation. Five Hours Prior to Mission Launch: Approximately 5 hours prior to mission launch, or at daybreak, the appropriate vessel(s) would be on-site in the primary test site near the location of the earliest planned mission point. MMOs onboard the vessel will assess the suitability of the test site, based on visual observation of marine mammals, and overall environmental conditions (visibility, sea state, etc.). This information will be relayed to the lead scientist. Three Hours Prior to Mission Launch: Approximately three hours prior to mission launch, aerial monitoring would commence within the test site to evaluate the test site for environmental suitability. Evaluation of the entire test site would take approximately 1 to 1.5 hours. Shipboard MMOs would monitor the “ZOI” and buffer zone, and the lead scientist would enter all marine mammals sightings, including the time of sighting and the direction of travel, into a marine animal tracking and sighting database. The aerial monitoring team would begin monitoring the ZOI and buffer zone around the target area. The shipboard monitoring team would combine with the aerial team to monitor the area immediately around the mission area including both the ZOI and buffer zone. One to 1.5 Hours Prior to Mission Launch As noted in Table 5 and depending upon the mission, aerial and shipboard viewers would be instructed to leave the area and remain outside the human personnel safety area (over 2 nm (3.7 km) from impact for JASSM and 5-10 nm (9.3-18.5 km) for SDB). The aerial team would report all marine animals spotted and their directions of travel to the lead scientist onboard the vessel. The shipboard monitoring team would continue searching the buffer zone for protected species as it leaves. The aircraft will leave the area and land on base. The surface vessels will stay on the outside of the human personnel safety area (5-10 nm for SDB and 2 nm for JASSM) until after detonation. Fifteen Minutes Prior to Launch and Go/No-Go Decision Process Visual monitoring from surface vessels outside the human personnel safety zone would continue to document any animals that may have gone undetected during the past two hours and track animals moving in the direction of the detonation area. The lead scientist would plot and record sightings and bearing for all marine animals detected. This would depict animal sightings relative to the mission area. The lead scientist would have the authority to declare the range fouled and recommend a hold until monitoring indicates that the ZOI is and will remain clear of detectable animals. The mission would be postponed if:
(1)Any marine mammal is visually detected within the relevant ZOI (see Table 1) prior to mission launch. The delay would continue until the marine mammal that caused the postponement is confirmed to be outside of the ZOI due to the animal moving out of the range, and
(2)Any marine mammal is detected in the buffer zone and cannot be subsequently re-sighted. The mission would not continue until the last verified location is outside of the ZOI and the animal is moving away from the mission area. In the event of a postponement, pre-mission monitoring would continue as long as weather and daylight hours allow. Aerial monitoring is limited by fuel and the on-station time of the monitoring aircraft. If a live warhead failed to explode operations would attempt to recognize and solve the problem while continuing with all mitigation measures in place. The probability of this occurring is very remote but does exist. Should a weapon fail to explode, the activity sponsor would attempt to identify the problem and detonate the charge with all marine mammal mitigation measures in place as described. If a live warhead fails to explode the weapon is rendered safe after 15 minutes. The feasibility and practicality of recovering the warhead will be evaluated on a case-by-case basis. If at all feasible, the warhead will be recovered. Launch to Impact Visual monitoring from vessels would continue to survey the ZOI and surrounding buffer zone and track animals moving in the direction of the impact area. The lead scientist would continue to plot and record sightings and bearing for all marine animals detected. This will depict animal sightings relative to the impact area. Due to economic costs of testing ($2 million per test) and the practical considerations (in-air destruction of the missile), NMFS is not proposing to require Eglin AFB to terminate an in-flight missile or bomb due to sighting of a protected species. Post-mission monitoring Post-mission monitoring is designed to gauge the effectiveness of pre-mission mitigation by reporting any sightings of dead or injured marine mammals. Post-detonation monitoring via shipboard surveyors would commence immediately following each detonation; no aerial surveys would be conducted during this monitoring stage. The vessels will move into the ZOI from outside the safety zone and continue monitoring for at least two hours, concentrating on the area down current of the test site. Although it is highly unlikely that marine mammals will be killed or seriously injured by this activity, any marine mammals killed by an explosion would likely suffer lung rupture, which would cause them to float to the surface immediately due to air in the blood stream. Any animals that are not killed instantly but are mortally wounded would likely resurface within a few days, though this would depend on the size and type of animal, fat stores, depth, and water temperature (DON, 2001). The monitoring team would attempt to document any marine mammals or turtles that are killed or injured as a result of the test and, if practicable, recover and examine any dead animals. The species, number, location, and behavior of any animals observed by the observation teams would be documented and reported to the lead scientist. Post-mission monitoring activities include coordination with marine animal stranding networks. NMFS maintains stranding networks along coasts to collect and circulate information about marine mammal standings. Local coordinators report stranding data to state and regional coordinators. Any observed dead or injured marine mammals would be reported to the appropriate coordinator. Summary of Mitigation Plan The PSW test will be postponed if any human safety concerns arise, protected species are sighted within the ZOI, any protected species is detected in the buffer zone and subsequently cannot be reacquired, or a marine mammal is moving into the ZOI from the buffer zone. The delay would continue until the marine mammal that caused the postponement is confirmed to be outside of the ZOI due to the animal swimming out of the range. Avoidance of impacts to pods of cetaceans will most likely be realized through these measures since groups of dolphins are relatively easy to spot with the survey distances and methods that will be employed. Typically solitary marine mammals such as dwarf/pygmy sperm whales, while more challenging to detect, will also be afforded substantial protection through pre-test monitoring. The safety vessels would conduct post-mission monitoring for two hours after each mission. The monitoring team would document any marine mammals or turtles observed dead or injured and, if practicable, recover and examine any dead animals. Conservative Estimates of Marine Mammal Densities Conservative mathematical calculations and conservative density estimates can serve as a technique for making conservative “take” estimates. Marine mammal densities used to calculate takes were based on the most current and comprehensive GOM surveys available (GulfCet II). The densities are adjusted for the time the animals are submerged, and further adjusted by applying standard deviations to provide an approximately 99 percent confidence level. As an example, the density estimates for bottlenose dolphins range from 0.06 to 0.15 animals/km 2 in GulfCet II aerial surveys of the shelf and slope. However, the final adjusted density used in take calculations is 0.81 animals/km 2 . Reporting NMFS is requiring Eglin AFB to submit an annual report on the results of the monitoring requirements. This annual report will be due within 30 days prior to the expiration of the current LOA. This report will then be used by NMFS to determine whether incidental takings by Eglin AFB from this activity continue to have a negligible impact on affected species and stocks of marine mammals. This report will include a discussion on the effectiveness of the mitigation in addition to the following information:
(1)date and time of each of the detonations;
(2)a detailed description of the pre-test and post-test activities related to mitigating and monitoring the effects of explosives detonation on marine mammals and marine mammal populations;
(3)the results of the monitoring program, including numbers by species/stock of any marine mammals noted injured or dead, presumably as a result of the detonation and numbers that may have been harassed due to undetected presence within the ZOI (NMFS and Eglin AFB presume that if an area is determined to be clear of marine mammals and later, during post-event monitoring, marine mammals are found in the area, those marine mammals will be considered “taken”); and
(4)results of coordination with coastal marine mammal stranding networks. Research Although Eglin AFB does not currently conduct independent Air Force monitoring efforts, Eglin AFB's Natural Resources Branch does participate in marine animal tagging and monitoring programs led by other agencies. The Natural Resources Branch also supports participation in annual surveys of marine mammals in the GOM with NMFS. From 1999 to 2002, Eglin AFB's Natural Resources Branch participated in summer cetacean monitoring and research opportunities through a contract representative. The contractor participated in visual surveys in 1999 for cetaceans in GOM, photographic identification of sperm whales in the northeastern Gulf in 2001, and served as a visual observer during the 2000 Sperm Whale Pilot Study and the 2002 sperm whale Satellite-tag (S-tag) cruise. Support for these research efforts is anticipated to continue. Eglin AFB utilizes marine mammal stranding information to ascertain the effectiveness of its mitigation measures for offshore activities. Stranding data is collected and maintained for the Florida panhandle and Gulf-wide areas. This is undertaken through the establishment and maintenance of contacts with local, state, and regional stranding networks. Eglin AFB assists with stranding data collection by maintaining its own team of stranding personnel. In addition to simply collecting stranding data, various analyses are performed. Stranding events are tracked by year, season, and NMFS statistical zone, both Gulf-wide and on the coastline in proximity to Eglin AFB. Stranding data is combined with records of EGTTR mission activity in each water range and analyzed for any possible correlation. In addition to being used as a measure of the effectiveness of mission mitigation, stranding data can yield insight into the species composition of cetaceans in the region. Endangered Species Act
(ESA)NMFS issued a biological opinion regarding the effects of Eglin AFB's PSW activity on ESA-listed species and critical habitat under the jurisdiction of NMFS. That biological opinion concluded that Eglin AFB's PSW activity is not likely to jeopardize the continued existence of listed species or result in the destruction or adverse modification of critical habitat. On August 11, 2005, NMFS determined that issuance of an annual authorization under section 101(a)(5) of the MMPA to Eglin AFB for this activity will not have effects beyond what was analyzed in 2004 in the Biological Opinion. NMFS has also determined that the issuance of up to 5 LOAs to Eglin AFB under these regulations (if implemented) would not have effects beyond what was analyzed in the 2004 Biological Opinion. A copy of the Biological Opinion is available upon request (see ADDRESSES ). National Environmental Policy Act
(NEPA)In December, 2003, Eglin AFB released a Draft PEA on the PSW activity. On April 22, 2004 (69 FR 21816), NMFS noted that Eglin AFB had prepared a Draft PEA for PSW activities and made this PEA available upon request. Eglin AFB updated the information in that PEA and issued a Final PEA and a Finding of No Significant Impact (FONSI) on the PSW activities. In accordance with NOAA Administrative Order 216-6 (Environmental Review Procedures for Implementing the National Environmental Policy Act, May 20, 1999), NMFS has reviewed the information contained in Eglin AFB's Final PEA and determined that the Eglin AFB's PEA accurately and completely describes the preferred action alternative, a reasonable range of alternatives, and the potential impacts on marine mammals, endangered species, and other marine life that could be impacted by the preferred and non-preferred alternatives. Based on this review and analysis, NMFS adopted Eglin AFB's PEA under 40 CFR 1506.3 and, on July 25, 2005, made its own FONSI statement on issuance of an annual authorization under section 101(a)(5) of the MMPA. As the impacts on the human environment by issuance of this rulemaking and annual LOAs to Eglin AFB are not substantially different from the action analyzed in Eglin's PEA and NMFS' July 25, 2005 FONSI and as no incremental change would occur under this new authority, NMFS has determined that it is not necessary to issue a new EA, a supplemental EA or an environmental impact statement for the issuance of an LOA to Eglin AFB to take marine mammals incidental to this activity. A copy of NMFS' July 25, 2006, FONSI for this activity is available upon request (see ADDRESSES ). A paper copy of the Eglin AFB Programmatic EA for this activity is available by contacting either Eglin AFB or NMFS (see ADDRESSES ). Determinations NMFS has determined that, based on the information provided in Eglin AFB's application, the Final PEA and this document, the total taking of marine mammals by PSW activities will have a negligible impact on the affected species or stocks over the 5-year period of take authorizations. While no take by serious injury or death is anticipated during this period, limited mortality is proposed to be authorized in the event that the extensive mitigation measures are not totally successful. However, even if serious injury or mortality were to occur, the total taking still would have no more than a negligible impact on the affected marine mammal species or stocks. In addition, the potential for temporary or permanent hearing impairment is low and will have the least practicable adverse impact on the affected species or stocks through the incorporation of the mitigation measures mentioned in this document. The information contained in Eglin AFB's EA and incidental take application support NMFS' finding that impacts will be mitigated by: (1)implementation of a conservative safety range for marine mammal exclusion;
(2)incorporation of aerial and shipboard survey monitoring efforts in the program both prior to and after detonation of explosives; and
(3)delay/ postponement/cancellation of detonations whenever marine mammals or other specified protected resources are either detected within the safety zone or may enter the safety zone at the time of detonation or if weather and sea conditions preclude adequate aerial surveillance. Since the taking will not result in more than the incidental harassment of certain species of marine mammals, will have only a negligible impact on these stocks, will not have an unmitigable adverse impact on the availability of these stocks for subsistence uses (as there are no known subsistence uses of marine mammal stocks in the GOM), and, through implementation of required mitigation and monitoring measures, will result in the least practicable adverse impact on the affected marine mammal stocks, NMFS has determined that the requirements of section 101(a)(5)(A) of the MMPA have been met and this final rule can be issued. Changes from the Proposed Rule Based on a public comment, these regulations require the marine mammal observation platform to provide observers a platform to see a major portion of the safety zone. Classification This action has been determined to be not significant for purposes of Executive Order 12866. The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration during the proposed rule stage that this action would not have a significant economic impact on a substantial number of small entities. The factual basis for the certification was published in the proposed rule and is not repeated here. No comments were received regarding this certification. As a result, a regulatory flexibility analysis was not required and none was prepared. List of Subjects in 50 CFR Part 216 Exports, Fish, Imports, Indians, Labeling, Marine mammals, Penalties, Reporting and recordkeeping requirements, Seafood, Transportation. Dated: November 15, 2006. John Oliver, Deputy Assistant Administrator for Operations, National Marine Fisheries Service. For reasons set forth in the preamble, 50 CFR part 216 is amended as follows: PART 216—REGULATIONS GOVERNING THE TAKING AND IMPORTING OF MARINE MAMMALS 1. The authority citation for part 216 continues to read as follows: Authority: 16 U.S.C. 1361 *et seq.* 2. Subpart V is reserved. 3. Subpart W is added to part 216 to read as follows: Subpart W—Taking Marine Mammals Incidental to Conducting Precision Strike Weapon Missions in the Gulf of Mexico Sec. 216.250 Specified activity and specified geographical region. 216.251 Effective dates. 216.252 Permissible methods of taking. 216.253 Prohibitions. 216.254 Mitigation. 216.255 Requirements for monitoring and reporting. 216.256 Applications for Letters of Authorization. 216.257 Letters of Authorization. 216.258 Renewal of Letters of Authorization. 216.259 Modifications to Letters of Authorization. Subpart W—Taking Marine Mammals Incidental to Conducting Precision Strike Weapon Missions in the Gulf of Mexico § 216.250 Specified activity and specified geographical region.
(a)Regulations in this subpart apply only to the incidental taking of those marine mammal species specified in paragraph
(b)of this section by U.S. citizens engaged in U.S. Air Force Precision Strike Weapon missions within the Eglin Air Force Base Gulf Test and Training Range within the northern Gulf of Mexico. The authorized activities as specified in a Letter of Authorization issued under §§ 216.106 and 216.257 include, but are not limited to, activities associated with
(1)the Joint Air-to-Surface Stand-off Missile (JASSM) exercise for a maximum of two live shots (single) and 4 inert shots (single) annually and
(2)the small-diameter bomb
(SDB)exercise for a maximum of six live shots a year, with two of the shots occurring simultaneously and a maximum of 12 inert shots, with up to two occurring simultaneously.
(b)The incidental take by Level A harassment, Level B harassment, or mortality of marine mammals under the activity identified in this section is limited to the following species: Atlantic bottlenose dolphins ( *Tursiops truncatus* ), Atlantic spotted dolphins ( *Stenella frontalis* ), dwarf sperm whales ( *Kogia simus* ) and pygmy sperm whale ( *Kogia breviceps* ). § 216.251 Effective dates. Regulations in this subpart are effective from December 26, 2006 until December 27, 2011. § 216.252 Permissible methods of taking.
(a)Under Letters of Authorization issued pursuant to §§ 216.106 and 216.257, the Holder of the Letter of Authorization may incidentally, but not intentionally, take marine mammals by Level A and Level B harassment, including lethal take within the area described in § 216.250(a), provided the activity is in compliance with all terms, conditions, and requirements of these regulations and the appropriate Letter of Authorization.
(b)The taking of marine mammals under a Letter of Authorization is limited to the species listed in § 216.250(b) and is limited to a total of 1 mortality, 2 takes by Level A harassment, and 53 takes by Level B harassment annually. § 216.253 Prohibitions. Notwithstanding takings contemplated in § 216.250 and authorized by a Letter of Authorization issued under §§ 216.106 and 216.257, no person in connection with the activities described in § 216.250 shall:
(a)Take any marine mammal not specified in § 216.250(b);
(b)Take any marine mammal specified in § 216.250(b) other than by incidental, unintentional Level A or Level B harassment or mortality;
(c)Take a marine mammal specified in § 216.250(b) if such taking results in more than a negligible impact on the species or stocks of such marine mammal; or
(d)Violate, or fail to comply with, the terms, conditions, and requirements of these regulations or a Letter of Authorization issued under §§ 216.106 and 216.257. § 216.254 Mitigation. The activity identified in § 216.250(a) must be conducted in a manner that minimizes, to the greatest extent practicable, adverse impacts on marine mammal species and stocks and their habitats. When conducting operations identified in § 216.250(a) under a Letter of Authorization, the following mitigation measures must be implemented: (a)(1) For the JASSM, the holder of the Letter of Authorization must establish and monitor a safety zone for marine mammals with a radius of 2.0 nm (3.7 km) from the center of the detonation and a buffer zone with a radius of 1.0 nm (1.85 km) radius from the outer edge of the safety zone.
(2)For the SDB, the holder of the Letter of Authorization must establish and monitor a safety for marine mammals with a radius of no less than 5 nm (9.3 km) for single bombs and 10 nm (18.5 km) for double bombs and a buffer zone from the outer edge of the safety zone with a radius of at least 2.5 nm (4.6 km) for single bombs and 5 nm (18.5 km) for double bombs.
(b)Prior to a JASSM or SDB launch:
(1)If any marine mammals are observed within the designated safety zone prescribed in condition (a)(1) above, or within the buffer zone prescribed in condition (a)(2) above and it/they are on a course that will put them within the safety zone prior to an JASSM or SDB launch, the launch must be delayed until all marine mammals are no longer within the designated safety zone.
(2)If any marine mammals are detected in the buffer zone and subsequently cannot be reacquired, the mission launch will not continue until the next verified location is outside of the safety zone and the animal is moving away from the mission area.
(3)If weather and/or sea conditions preclude adequate aerial surveillance for detecting marine mammals, detonation must be delayed until adequate sea conditions exist for aerial surveillance to be undertaken. Adequate sea conditions means the sea state does not exceed Beaufort sea state 3.5 (i.e., whitecaps on 33 to 50 percent of surface; 0.6 m (2 ft) to 0.9 m (3 ft) waves), the visibility is 5.6 km (3 nm) or greater, and the ceiling is 305 m (1,000 ft) or greater.
(4)To ensure adequate daylight for pre- and post-detonation monitoring, mission launches may not take place earlier than 2 hours after sunrise, and detonations may not take place later than 2 hours prior to sunset, or whenever darkness or weather conditions will preclude completion of the post-test survey effort described in § 216.255.
(5)If post-detonation surveys determine that a serious injury or lethal take of a marine mammal has occurred, the test procedure and the monitoring methods must be reviewed with the National Marine Fisheries Service and appropriate changes must be made prior to conducting the next mission detonation.
(6)Mission launches must be delayed if aerial or vessel monitoring programs described under § 216.255 cannot be carried out fully. § 216.255 Requirements for monitoring and reporting.
(a)The Holder of the Letter of Authorization issued pursuant to §§ 216.106 and 216.257 for activities described in § 216.250(a) is required to conduct the monitoring and reporting measures specified in this section and any additional monitoring measures contained in the Letter of Authorization.
(b)The Holder of the Letter of Authorization is required to cooperate with the National Marine Fisheries Service, and any other Federal, state or local agency authorized to monitor the impacts of the activity on marine mammals. Unless specified otherwise in the Letter of Authorization, the Holder of the Letter of Authorization must notify the Director, Office of Protected Resources, National Marine Fisheries Service, or designee, by letter or telephone (301-713-2289), at least 2 weeks prior to any modification to the activity identified in § 216.250(a) that has the potential to result in the mortality or Level A or Level B harassment of marine mammals that was not identified and addressed previously.
(c)The Holder of this Authorization must:
(1)Designate qualified on-site marine mammal observers to record the effects of mission launches on marine mammals that inhabit the northern Gulf of Mexico;
(2)Have on-site marine mammal observers approved in advance by the National Marine Fisheries Service to conduct the mitigation, monitoring and reporting activities specified in these regulations and in the Letter of Authorization issued pursuant to § 216.106 and § 216.257.
(3)Conduct aerial surveys to reduce impacts on protected species. The aerial survey/monitoring team will consist of two experienced marine mammal observers, approved in advance by the Southeast Region, National Marine Fisheries Service. The aircraft will also have a data recorder who would be responsible for relaying the location, the species if possible, the direction of movement, and the number of animals sighted.
(4)Conduct shipboard monitoring to reduce impacts to protected species. Trained marine mammal observers will conduct monitoring from the highest point possible on each mission or support vessel(s). The observer on the vessel must be equipped with optical equipment with sufficient magnification (e.g., 25X power “Big-Eye” binoculars. The marine mammal observation platform must be of sufficient height to provide observers a platform to see a major portion of the safety zone.
(d)The aerial and shipboard monitoring teams will maintain proper lines of communication to avoid communication deficiencies. The observers from the aerial team and operations vessel will have direct communication with the lead scientist aboard the operations vessel.
(e)Pre-mission Monitoring: Approximately 5 hours prior to the mission, or at daybreak, the appropriate vessel(s) would be on-site in the primary test site near the location of the earliest planned mission point. Observers onboard the vessel will assess the suitability of the test site, based on visual observation of marine mammals and overall environmental conditions (visibility, sea state, etc.). This information will be relayed to the lead scientist.
(f)Three Hours Prior to Mission:
(1)Approximately three hours prior to the mission launch, aerial monitoring will commence within the test site to evaluate the test site for environmental suitability. Evaluation of the entire test site would take approximately 1 to 1.5 hours. The aerial monitoring team will begin monitoring the safety zone and buffer zone around the target area.
(2)Shipboard observers will monitor the safety and buffer zone, and the lead scientist will enter all marine mammal sightings, including the time of sighting and the direction of travel, into a marine animal tracking and sighting database.
(g)One to 1.5 Hours Prior to Mission Launch:
(1)Depending upon the mission, aerial and shipboard viewers will be instructed to leave the area and remain outside the safety area. The aerial team will report all marine animals spotted and their directions of travel to the lead scientist onboard the vessel.
(2)The shipboard monitoring team will continue searching the buffer zone for protected species as it leaves the safety zone. The surface vessels will continue to monitor from outside of the safety area until after impact.
(h)Post-mission monitoring:
(1)The vessels will move into the safety zone from outside the safety zone and continue monitoring for at least two hours, concentrating on the area down current of the test site.
(2)The Holder of the Letter of Authorization will closely coordinate mission launches with marine animal stranding networks. Coordination shall include:
(i)Pre-activity notification of a PSW exercise; and
(ii)Post-event surveying of the Eglin AFB shore-line in the vicinity of the PSW exercise.
(3)The monitoring team will document any dead or injured marine mammals and, if practicable, recover and examine any dead animals.
(i)Activities related to the monitoring described in this section may include retention of marine mammals without the need for a separate scientific research permit.
(j)The Holder of the Letter of Authorization must conduct any marine mammal research required under the Letter of Authorization.
(k)*Reporting.*
(1)Unless specified otherwise in the Letter of Authorization, the Holder of the Letter of Authorization must submit an annual report to the Director, Office of Protected Resources, National Marine Fisheries Service, no later than 30 days prior to the date of expiration of the Letter of Authorization. This report must contain all information required by these regulations and the Letter of Authorization.
(2)The final comprehensive report on all marine mammal monitoring and research conducted during the period of these regulations must be submitted to the Director, Office of Protected Resources, National Marine Fisheries Service at least 240 days prior to expiration of these regulations or 240 days after the expiration of these regulations if new regulations will not be requested. § 216.256 Applications for Letters of Authorization. To incidentally take marine mammals pursuant to these regulations, the U.S. citizen (as defined at § 216.103 ) conducting the activity identified in § 216.250(a) must apply for and obtain either an initial Letter of Authorization in accordance with §§ 216.106 and 216.257 or a renewal under § 216.258. § 216.257 Letter of Authorization.
(a)A Letter of Authorization, unless suspended or revoked, will be valid for a period of time specified in the Letter of Authorization, but may not to exceed the period of validity of this subpart, and must be renewed annually subject to annual renewal conditions in § 216.258.
(b)A Letter of Authorization with a period of validity less than the period of this subpart may be renewed subject to renewal conditions in § 216.258.
(c)Each Letter of Authorization will set forth:
(1)Permissible methods of incidental taking;
(2)Means of effecting the least practicable adverse impact on the species, its habitat, and on the availability of the species for subsistence uses; and
(3)Requirements for monitoring and reporting incidental takes.
(d)Issuance and renewal of the Letter of Authorization will be based on a determination that the total number of marine mammals taken by the activity as a whole will have no more than a negligible impact on the species or stock of affected marine mammals.
(e)Except for the initial Letter of Authorization, notice of issuance or denial of subsequent Letters of Authorization will be published in the **Federal Register** within 30 days of a determination. § 216.258 Renewal of Letters of Authorization.
(a)A Letter of Authorization issued under § 216.106 and § 216.257 for the activity identified in § 216.250(a) will be renewed annually upon:
(1)Notification to the National Marine Fisheries Service that the activity described in the application submitted under § 216.256 will be undertaken and that there will not be a substantial modification to the described work, mitigation or monitoring undertaken during the upcoming 12 months;
(2)Timely receipt of the monitoring report required under § 216.255(k), and the Letter of Authorization, which has been reviewed and accepted by the National Marine Fisheries Service; and
(3)A determination by the National Marine Fisheries Service that the mitigation, monitoring and reporting measures required under § 216.254, § 216.255, and the Letter of Authorization issued under §§ 216.106 and 216.257, were undertaken and will be undertaken during the upcoming annual period of validity of a renewed Letter of Authorization.
(b)If a request for a renewal of a Letter of Authorization issued under §§ 216.106 and 216.258 indicates that a substantial modification to the described work, mitigation, monitoring or research undertaken during the upcoming season will occur, the National Marine Fisheries Service will provide the public a period of 30 days for review and seek comment on:
(1)New cited information and data that indicates that the determinations made for promulgating these regulations are in need of reconsideration, and
(2)Proposed changes to the mitigation, monitoring and research requirements contained in these regulations or in the current Letter of Authorization. § 216.259 Modifications to Letters of Authorization.
(a)Except as provided in paragraph
(b)of this section, no substantive modification (including withdrawal or suspension) to a Letter of Authorization issued pursuant to §§ 216.106 shall be made until after notification and an opportunity for public comment has been provided. For purposes of this paragraph, a renewal of a Letter of Authorization under § 216.258, without modification (except for the period of validity), is not considered a substantive modification.
(b)If the Assistant Administrator determines that an emergency exists that poses a significant risk to the well-being of the species or stocks of marine mammals specified in § 216.250(b), a Letter of Authorization issued pursuant to §§ 216.106 and 216.257 may be substantively modified without prior notification and an opportunity for public comment. Notification will be published in the **Federal Register** within 30 days subsequent to the action. [FR Doc. 06-9380 Filed 11-22-06; 8:45 am]
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  • 15 CFR 742
  • 15 CFR 745
  • 15 CFR 774
  • Pub. L. 106-387
  • Pub. L. 107-56
  • Pub. L. 108-11
  • 117 Stat. 559
  • 10 USC 7430(e)
  • 22 CFR 121
  • 7 CFR 331.3(c)
  • 9 CFR 121.3(c)
  • 9 CFR 121.4(c)
  • 42 CFR 73.3(c)
  • 42 CFR 73.4(c)
  • 7 CFR 331.3(b)
  • 9 CFR 121.3(b)
  • 9 CFR 121.4(b)
  • 42 CFR 73.3(b)
  • 42 CFR 73.4(b)
  • 7 CFR 331
  • 9 CFR 121
  • 42 CFR 73
  • 21 CFR 312
  • 23 CFR 634
  • Pub. L. 109-59
  • 23 CFR 630
  • 5 USC 601-612
  • Pub. L. 104-4
  • 109 Stat. 48
  • 49 CFR 1
  • 1 CFR 51
  • 49 CFR 7
  • 33 CFR 165
  • Pub. L. 104-121
  • 44 USC 3501-3520
  • 2 USC 1531-1538
  • 42 USC 4321-4370f
  • Pub. L. 107-295
  • 40 CFR 60
  • 40 CFR 9
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