This section of the FEDERAL REGISTER

contains notices to the public of the proposed

issuance of rules and regulations. The

purpose of these notices is to give interested

persons an opportunity to participate in the

rule making prior to the adoption of the final

rules.

Proposed Rules Federal Register

9378 

Vol. 74, No. 41 

Wednesday, March 4, 2009 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

15 CFR Part 922 

[Docket No. 090122043–9066–01] 

RIN 0648–AX37 

Gray’s Reef National Marine Sanctuary 

Regulations on the Use of Spearfishing 

Gear 

AGENCY: Office of National Marine 

Sanctuaries (ONMS), National Ocean 

Service (NOS), National Oceanic and 

Atmospheric Administration (NOAA), 

Department of Commerce (DOC). 

ACTION: Proposed rule; notice of public 

hearing. 

SUMMARY: The National Oceanic and 

Atmospheric Administration (NOAA) is 

proposing to prohibit the use of 

spearfishing gear in Gray’s Reef National 

Marine Sanctuary. Spearfishing is often 

used to selectively target larger fish, and 

can significantly reduce abundance and 

alter the relative size structure of target 

species toward smaller fish. Therefore, 

the proposed prohibition would provide 

protection to the fishes and natural livebottom community for which the 

sanctuary was designated. The proposal 

also would facilitate enforcement of an 

existing prohibition against the use of 

powerheads within the sanctuary. A 

draft environmental assessment has 

been prepared for this proposed action. 

NOAA is soliciting public comment on 

the proposed rule and draft 

environmental assessment. 

DATES: Comments will be considered if 

received by May 4, 2009. A Public 

hearing will be held as detailed below: 

(1) March 19, 2009, 6–9 p.m., Stevens 

Wetlands Education Center, J.F. Gregory 

Park, Richmond Hill, Georgia. 

ADDRESSES: You may submit comments 

by any of the following methods: 

• Electronic submission (preferred 

method): www.regulations.gov (search 

for docket # NOAA–NOS–2009–0002) 

• Mail: Gray’s Reef National Marine 

Sanctuary, 10 Ocean Science Circle, 

Savannah, GA 31411, Attn: Dr. George 

Sedberry, Superintendent. 

Instructions: All comments received 

are a part of the public record and will 

be generally posted to http:// 

www.regulations.gov without change. 

All Personal Identifying Information (for 

example, name, address, etc.) 

voluntarily submitted by the commenter 

may be publicly accessible. Do not 

submit confidential business 

information or otherwise sensitive or 

protected information. NOAA will 

accept anonymous comments 

(enter N/A in the required fields, if you 

wish to remain anonymous). 

Attachments to electronic comments 

will be accepted in Microsoft Word, 

Excel, WordPerfect, or Adobe PDF file 

formats only. 

FOR FURTHER INFORMATION CONTACT: 

Becky Shortland at (912) 598–2381. 

Copies of the draft environmental 

assessment and proposed rule can be 

downloaded or viewed on the Internet 

at http://www.regulations.gov (search 

for docket # NOAA–NOS–2009–0002) or 

at http://graysreef.noaa.gov. Copies can 

also be obtained by contacting 

Stewardship Coordinator Becky 

Shortland, Gray’s Reef National Marine 

Sanctuary, 10 Ocean Science Circle, 

Savannah, Georgia. 

SUPPLEMENTARY INFORMATION: 

I. Background 

A. Gray’s Reef National Marine 

Sanctuary 

GRNMS was designated as the 

nation’s fourth national marine 

sanctuary in 1981 for the purposes of: 

Protecting the quality of this unique and 

fragile ecological community; promoting 

scientific understanding of this live 

bottom ecosystem; and enhancing 

public awareness and wise use of this 

significant regional resource. GRNMS 

protects 16.68 square nautical miles of 

open ocean and submerged lands of 

particularly dense and nearshore 

patches of productive live bottom 

habitat. The sanctuary is influenced by 

complex ocean currents and serves as a 

mixing zone for temperate (colder 

water) and sub-tropical species. The 

series of rock ledges and sand expanses 

has produced a complex habitat of 

caves, burrows, troughs, and overhangs 

that provide a solid base upon which a 

rich carpet of temperate and tropical 

marine flora and fauna attach and grow. 

This flourishing ecosystem attracts 

mackerel, grouper, black sea bass, 

angelfish, and a host of other fishes. An 

estimated 180 species of fish, 

encompassing a wide variety of sizes, 

forms, and ecological roles, have been 

recorded at GRNMS. Loggerhead sea 

turtles, a threatened species, use 

GRNMS year-round for foraging and 

resting, and the highly endangered 

northern right whale is occasionally 

seen in Gray’s Reef. GRNMS is one of 

the most popular sportfishing areas 

along the Georgia coast. 

B. Need for Action 

This action is being proposed for two 

reasons. First, the proposed action 

would provide greater protection to 

sanctuary resources by removing a gear 

type that selectively targets larger fish, 

negatively altering the size structure of 

remaining populations. While the 

number of recreational divers 

spearfishing at GRNMS appears to be 

small, spearfishing is a highly efficient 

harvesting gear that is often used to 

selectively target larger fish relative to 

other fishing gears. Such fishing can 

significantly reduce abundance and 

alter the relative size structure of target 

species toward smaller fish. Some fish 

populations that are present in GRNMS 

are regionally overfished or approaching 

overfished status and researchers have 

commented on the lack of large snappergrouper individuals at GRNMS. 

Second, the proposed action would 

facilitate improved enforcement of an 

existing prohibition against the use of 

powerheads within the sanctuary. 

Powerheads, also sometimes referred to 

as bang sticks or shark sticks, are a 

specialized type of firearm intended for 

use underwater, that fire upon direct 

contact with the target. They are often 

used for spear fishing, or may be used 

to kill for sport or self defense. Under 

existing sanctuary regulations, it is 

unlawful to injure, catch or harvest any 

marine resource within the sanctuary, 

except by rod and reel, handline, or 

‘‘spearfishing gear without 

powerheads.’’ 50 CFR 922.02(a)(5)(i). 

Law enforcement officials have 

repeatedly expressed the need to 

prohibit all spearfishing to enable them 

to more effectively enforce the existing 

powerhead prohibition. Although 

NOAA has prohibited the use and 

possession of powerheads since the 

Federal Register / Vol. 74, No. 41 / Wednesday, March 4, 2009 / Proposed Rules 9379 

1981 GRNMS designation, powerhead 

spear tips and spent shells are still 

found in the GRNMS. Spearguns with a 

powerhead and without a powerhead 

are similar in appearance, which can 

raise significant issues in proving a 

violation of the powerhead prohibition. 

C. Previous Action on the Use of 

Spearfishing Gear 

NOAA considered regulating 

spearfishing during the original 

management plan of 1981, but only 

spearfishing with powerheads was 

prohibited at the time. A complete 

spearfishing prohibition was again 

considered during the review and 

revision of the GRNMS Management 

Plan beginning in 1999. Along with the 

fact that visitor use (primarily 

recreational fishing; Ehler and 

Leeworthy 2002) had increased, 

evidence of powerhead use (despite the 

1981 ban) created a growing concern. 

NOAA proposed to prohibit all 

spearfishing activities with the 2003 

Draft Environmental Impact Statement/ 

Draft Management Plan (DEIS/DMP) and 

associated proposed rule (68 FR 62033, 

October 31, 2003). 

However, after consideration of public 

comments on the DEIS/DMP, NOAA 

concluded that additional 

socioeconomic information was needed 

and thus deferred any regulatory action 

on spearfishing. The 2006 Final EIS/MP 

instead included a commitment to 

gather additional socioeconomic 

information on spearfishing in GRNMS 

and review the issue again in two years. 

The additional socioeconomic 

information was collected, analyzed and 

presented to the Sanctuary Advisory 

Council in September 2007. That 

information indicates no charter 

spearfishing activity and only a very 

small amount of private spearfishing 

activity within the GRNMS. Moreover, 

abundant opportunities to conduct 

spearfishing in nearby locations outside 

the sanctuary already exist. Copies of 

this report are available in the location 

mentioned in the FOR FURTHER

INFORMATION CONTACT section. 

D. Interactions With the South Atlantic 

Fishery Management Council (SAFMC) 

Section 304(a)(5) of the NMSA states 

that: 

The Secretary shall provide the appropriate 

Regional Fishery Management Council with 

the opportunity to prepare draft regulations 

for fishing within the Exclusive Economic 

Zone as the Council may deem necessary to 

implement the proposed designation. Draft 

regulations prepared by the Council, or a 

Council determination that regulations are 

not necessary pursuant to this paragraph, 

shall be accepted and issued as proposed 

regulations by the Secretary unless the 

Secretary finds that the Council’s action fails 

to fulfill the purposes and policies of this 

chapter and the goals and objectives of the 

proposed designation. In preparing the draft 

regulations, a Regional Fishery Management 

Council shall use as guidance the national 

standards of section 301(a) of the MagnusonStevens Act (16 U.S.C. 1851) to the extent 

that the standards are consistent and 

compatible with the goals and objectives of 

the proposed designation. The Secretary shall 

prepare the fishing regulations, if the Council 

declines to make a determination with 

respect to the need for regulations, makes a 

determination which is rejected by the 

Secretary, or fails to prepare the draft 

regulations in a timely manner. Any 

amendments to the fishing regulations shall 

be drafted, approved, and issued in the same 

manner as the original regulations. The 

Secretary shall also cooperate with other 

appropriate fishery management authorities 

with rights or responsibilities within a 

proposed sanctuary at the earliest practicable 

stage in drafting any sanctuary fishing 

regulations. 

In 2003, the SAFMC prepared draft 

regulations, including a prohibition on 

spearfishing, for the proposed rule 

associated with the GRNMS Draft 

Environmental Impact Statement/Draft 

Management Plan (DEIS/DMP). 

However, after consideration of public 

comments on the DEIS/DMP, NOAA 

concluded that additional 

socioeconomic information was needed 

and thus deferred any regulatory action 

on spearfishing. The 2006 Final EIS/MP 

instead included a commitment to 

gather additional socioeconomic 

information on spearfishing in GRNMS 

and consider proposing a prohibition on 

spearfishing again two years later, with 

more extensive socioeconomic 

information on the impacts of the 

proposed rule. 

NOAA presented an update of this 

issue at the October 2007 meeting of the 

Joint Habitat/Ecosystem Based 

Management Advisory Panel of the 

SAFMC and again at the December 2007 

and March 2008 SAFMC meetings. 

In June 2008, NOAA provided the 

SAFMC with the opportunity to prepare 

draft sanctuary fishing regulations 

concerning spearfishing activities for 

GRNMS. The SAFMC concurred with 

the proposed ban on spearfishing, but 

requested that NOAA prepare the draft 

regulations. 

II. Summary of the Proposed 

Regulations 

The proposed regulatory action would 

prohibit the use of all spearfishing gear 

in Gray’s Reef National Marine 

Sanctuary. Existing regulations would 

be amended to eliminate ‘‘spearfishing 

gear without powerheads’’ from the list 

of allowable gear in 15 CFR 

922.92(a)(5)(i). The proposed action also 

would prohibit the possession of 

spearfishing gear in GRNMS, except 

when stowed on board vessels transiting 

the sanctuary. 

III. Classification 

A. National Environmental Policy Act 

NOAA has prepared a draft 

environmental assessment to evaluate 

the impacts of the proposed rulemaking. 

Copies are available at the address and 

Web site listed in the ADDRESSES section 

of this proposed rule. 

B. Executive Order 12866: Regulatory 

Impact 

This proposed rule has been 

determined to be not significant within 

the meaning of Executive Order 12866. 

C. Executive Order 13132: Federalism 

Assessment 

NOAA has concluded this regulatory 

action does not have federalism 

implications sufficient to warrant 

preparation of a federalism assessment 

under Executive Order 13132. 

D. Regulatory Flexibility Act 

The Chief Counsel for Regulation of 

the Department of Commerce certified 

to the Chief Counsel for Advocacy of the 

Small Business Administration (SBA) 

that this proposed rule, if adopted, 

would not have a significant economic 

impact on a substantial number of small 

entities. 

This conclusion is based primarily on 

recent socioeconomic studies and onsite surveys of visitor use conducted by 

NOAA subsequent to the last proposed 

rulemaking. These studies and surveys 

revealed the following information. 

First, there would be no economic 

impact upon consumptive recreational 

charter fishing businesses. These are the 

only small businesses known to operate 

within the sanctuary (businesses of this 

type are considered a ‘‘small’’ business 

if they have annual receipts not in 

excess of $7 million (13 CFR 121.201)). 

More than 10 such fishing businesses 

are active in the GRNMS. 

Socioeconomic survey results, however, 

indicate that none of these businesses 

made spearfishing trips to GRNMS in 

recent years and none plan to in the 

future. 

Second, there would be no economic 

impact upon recreational charter diving 

businesses, as none currently operate 

within the sanctuary. In September 

2007, in-person interviews were 

conducted with all businesses and 

organizations offering scuba diving trips 

along the Georgia coast. Four charter 

scuba diving operations and one scuba 

diving club were identified and 

9380 Federal Register / Vol. 74, No. 41 / Wednesday, March 4, 2009 / Proposed Rules 

interviewed. The interviews gathered 

information that included operating 

profiles, preferred diving locations and 

methods, detailed business data 

(revenue and costs), and general 

opinions of the current state of scuba 

diving and spearfishing off the Georgia 

coast. None of these businesses offer 

scuba diving trips to GRNMS. 

Moreover, abundant commercial 

spearfishing opportunities currently 

exist outside of the sanctuary. Dive 

charters reported a total of 1,747 persondays of scuba diving off the Georgia 

coast in 2007. Approximately 55 percent 

of these person-days were nonconsumptive (no spearfishing) persondays, 44 percent were consumptive 

(spearfishing) person-days, and the 

remaining 1 percent was sightseeing/ 

sportfishing. 

Because the impacts of this rule on 

the recreational charter fishing 

businesses and the recreational charter 

diving business would be minimal or 

would have no impact, the Chief 

Counsel for Regulation certified to the 

Chief Counsel for Advocacy at SBA that 

this rule would not have a significant 

economic impact on a substantial 

number of small entities. 

E. Paperwork Reduction Act 

This proposed rule would not require 

any additional collection of information, 

and therefore no paperwork reduction 

act action is required. Notwithstanding 

any other provision of the law, no 

person is required to respond to, nor 

shall any person be subject to a penalty 

for failure to comply with, a collection 

of information subject to the 

requirements of the PRA, unless that 

collection of information displays a 

currently valid OMB Control Number. 

IV. Request for Comments 

NOAA requests comments on this 

proposed rule for 60 days after 

publication of this notice. 

List of Subjects in 15 CFR Part 922 

Administrative practice and 

procedure, Coastal zone, Fishing gear, 

Marine resources, Natural resources, 

Penalties, Recreation and recreation 

areas, Wildlife. 

(Federal Domestic Assistance Catalog 

Number 11.429 Marine Sanctuary Program) 

Dated: February 26, 2009. 

John H. Dunnigan, 

Assistant Administrator, National Ocean 

Service, National Oceanic and Atmospheric 

Administration. 

Accordingly, for the reasons set forth 

above, NOAA proposes amending part 

922, title 15 of the Code of Federal 

Regulations as follows: 

PART 922—NATIONAL MARINE 

SANCTUARY PROGRAM 

REGULATIONS 

1. The authority citation for part 922 

continues to read as follows: 

Authority: 16 U.S.C. 1431 et seq. 

2. Revise paragraphs (a)(5)(i) and 

(a)(6) of § 922.92 to read as follows: 

§ 922.92 Prohibited or otherwise regulated 

activities. 

(a) * * * 

(5)(i) Injuring, catching, harvesting, or 

collecting, or attempting to injure, catch, 

harvest, or collect, any marine organism, 

or any part thereof, living or dead, 

within the Sanctuary by any means 

except by use of rod and reel, and 

handline gear. 

(6) Except for possessing fishing gear 

or means for fishing stowed and not 

available for immediate use while 

passing through the Sanctuary without 

interruption or for valid law 

enforcement purposes, possessing, 

carrying, or using within the Sanctuary 

any fishing gear or means for fishing 

except rod and reel, and handline gear. 

* * * * * 

[FR Doc. E9–4567 Filed 3–3–09; 8:45 am] 

BILLING CODE 3510–NK–P 

DEPARTMENT OF HEALTH AND 

HUMAN SERVICES 

42 CFR Part 84 

[Docket Number NIOSH–005] 

RIN 0920–AA10 

Approval Tests and Standards for 

Closed-Circuit Escape Respirators 

AGENCY: Centers for Disease Control and 

Prevention, HHS. 

ACTION: Notice of proposed rulemaking; 

Reopening of comment period and 

notice of public meetings. 

SUMMARY: The Department of Health and 

Human Services (DHHS) is reopening 

the comment period until April 10, 2009 

and will hold public meetings 

concerning the proposed rule for 

Approval Tests and Standards for 

Closed-Circuit Escape Respirators that 

was published in the Federal Register 

on Wednesday, December 10, 2008. 

DATES: The comment period for the 

proposed rule published December 10, 

2008 (73 FR 75027), is reopened. All 

written comments on the proposed rule 

must be received on or before April 10, 

2009. Public meetings on this proposed 

rule will be held on March 16 and 

March 23, 2009. Details concerning 

those meetings are in the 

SUPPLEMENTARY INFORMATION section 

below. 

ADDRESSES: You may submit comments, 

identified by RIN: 0920–AA10, by any 

of the following methods: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments. 

• E-mail: niocindocket@cdc.gov. 

Include ‘‘RIN: 0920–AA10’’ and ‘‘42 

CFR pt. 84’’ in the subject line of the 

message. 

• Mail: NIOSH Docket Office, Docket 

#005, Robert A. Taft Laboratories, MS– 

C34, 4676 Columbia Parkway, 

Cincinnati, OH 45226. 

Instructions: All submissions received 

must include the agency name and 

docket number or Regulatory 

Information Number (RIN) for this 

rulemaking, RIN: 0920–AA10. All 

comments received will be posted 

without change to http://www.cdc.gov/ 

niosh/docket, including any personal 

information provided. 

Docket: For access to the docket to 

read background documents or 

comments received, go to http:// 

www.cdc.gov/niosh/docket. 

SUPPLEMENTARY INFORMATION: The 

Department of Health and Human 

Services published a proposed rule on 

the Approval Tests and Standards for 

Closed-Circuit Escape Respirators on 

December 10, 2008. The Department 

requested comments on or before 

February 9, 2009. The Department 

planned to hold public meetings before 

that date but these meetings could not 

be scheduled. 

The Department will hold two public 

meetings on the proposed rule at the 

following times and locations: March 

16, 2009, beginning at 9 a.m., MST, and 

expected to end at 12:30 MST at the 

Marriot Denver Tech Center, 4900 S. 

Syracuse Street, Denver, CO 80237; and 

March 23, 2009, beginning at 1 p.m. est, 

and expected to end at 5 p.m. EST, at 

the Marriot Inn and Conference Center 

UMUC, 3501 University Boulevard E., 

Adelphi, MD 20783. As a result, the 

Department is also reopening the 

comment period until April 10, 2009 to 

permit additional time for interested 

parties to submit comments. 

FOR FURTHER INFORMATION CONTACT: 

Jonathan V. Szalajda, NIOSH, National 

Personal Protective Technology 

Laboratory (NPPTL), Post Office Box 

18070, 626 Cochrans Mill Road, 

Pittsburgh, Pennsylvania 15236, 

telephone (412) 386–5200, facsimile 

(412) 386–4089, e-mail zfx1@cdc.gov.