65256 Federal Register / Vol. 75, No. 204 / Friday, October 22, 2010 / Proposed Rules 

necessary to accommodate aircraft using 

the new RNAV (GPS) SIAPs at the 

airport. This action would enhance the 

safety and management of IFR 

operations at the Airport. This also 

would correct the name of the airport 

from Show Low Municipal Airport to 

Show Low Regional Airport. 

Class E airspace designations are 

published in paragraph 6005, of FAA 

Order 7400.9U, dated August 18, 2010, 

and effective September 15, 2010, which 

is incorporated by reference in 14 CFR 

71.1. The Class E airspace designation 

listed in this document will be 

published subsequently in this Order. 

The FAA has determined this 

proposed regulation only involves an 

established body of technical 

regulations for which frequent and 

routine amendments are necessary to 

keep them operationally current. 

Therefore, this proposed regulation: (1) 

Is not a ‘‘significant regulatory action’’ 

under Executive Order 12866; (2) is not 

a ‘‘significant rule’’ under DOT 

Regulatory Policies and Procedures (44 

FR 11034; February 26, 1979); and (3) 

does not warrant preparation of a 

regulatory evaluation as the anticipated 

impact is so minimal. Since this is a 

routine matter that will only affect air 

traffic procedures and air navigation, it 

is certified this proposed rule, when 

promulgated, would not have a 

significant economic impact on a 

substantial number of small entities 

under the criteria of the Regulatory 

Flexibility Act. 

The FAA’s authority to issue rules 

regarding aviation safety is found in 

Title 49 of the U.S. Code. Subtitle 1, 

Section 106, describes the authority for 

the FAA Administrator. Subtitle VII, 

Aviation Programs, describes in more 

detail the scope of the agency’s 

authority. This rulemaking is 

promulgated under the authority 

described in Subtitle VII, Part A, 

Subpart I, Section 40103. Under that 

section, the FAA is charged with 

prescribing regulations to assign the use 

of the airspace necessary to ensure the 

safety of aircraft and the efficient use of 

airspace. This regulation is within the 

scope of that authority as it modifies 

controlled airspace at Show Low 

Regional Airport, Show Low, AZ. 

List of Subjects in 14 CFR Part 71 

Airspace, Incorporation by reference, 

Navigation (air). 

The Proposed Amendment 

Accordingly, pursuant to the 

authority delegated to me, the Federal 

Aviation Administration proposes to 

amend 14 CFR Part 71 as follows: 

PART 71—DESIGNATION OF CLASS A, 

B, C, D AND E AIRSPACE AREAS; AIR 

TRAFFIC SERVICE ROUTES; AND 

REPORTING POINTS 

1. The authority citation for 14 CFR 

Part 71 continues to read as follows: 

Authority: 49 U.S.C. 106(g), 40103, 40113, 

40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959– 

1963 Comp., p. 389. 

§ 71.1 [Amended] 

2. The incorporation by reference in 

14 CFR 71.1 of the Federal Aviation 

Administration Order 7400.9U, 

Airspace Designations and Reporting 

Points, dated August 18, 2010, and 

effective September 15, 2010 is 

amended as follows: 

Paragraph 6005 Class E airspace areas 

extending upward from 700 feet or more 

above the surface of the earth. 

* * * * * 

AWP AZ E5 Show Low, AZ [Modified] 

Show Low Regional Airport, AZ 

(Lat. 34°15′56′′ N., long. 110°00′20′′ W.) 

That airspace extending upward from 700 

feet above the surface within a 6.7-mile 

radius of the Show Low Regional Airport and 

within 3 miles each side of the 038° bearing 

of the Show Low Regional Airport extending 

from the 6.7-mile radius to 10 miles northeast 

of the airport, and within 2.1 miles each side 

of the 085° bearing of the Show Low Regional 

Airport extending from the 6.7-mile radius to 

7.9 miles east of the airport; that airspace 

extending upward from 1,200 feet above the 

surface within an area bounded by a line 

beginning at Lat. 34°35′00′′ N., long. 

109°51′00′′ W.; to lat. 34°14′00′′ N., long. 

109°22′00′′ W.; to lat. 33°49′00′′ N., long. 

110°36′00′′ W.; to lat. 34°10′00′′ N., long. 

110°37′00′′ W.; thence to the point of 

beginning. 

Issued in Seattle, Washington, on October 

13, 2010. 

Rob Henry, 

Acting Manager, Operations Support Group, 

Western Service Center 

[FR Doc. 2010–26579 Filed 10–21–10; 8:45 am] 

BILLING CODE 4910–13–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

15 CFR Part 922 

[Docket No. 100222109–0471–01] 

RIN 0648–AY35 

Flower Garden Banks National Marine 

Sanctuary Regulations 

AGENCY: Office of National Marine 

Sanctuaries (ONMS), National Oceanic 

and Atmospheric Administration 

(NOAA), Department of Commerce 

(DOC). 

ACTION: Proposed rule; Request for 

public comments; Public Availability of 

Draft Management Plan and Draft 

Environmental Assessment. 

SUMMARY: The National Oceanic and 

Atmospheric Administration (NOAA) 

proposes to amend the regulations for 

the Flower Garden Banks National 

Marine Sanctuary (FGBNMS or 

sanctuary) to improve vessel and user 

safety, protect sanctuary resources from 

user impacts, clarify vessel pollution 

discharge language, and make other 

technical changes and corrections. 

DATES: Comments. Comments on the 

proposed rule and the draft 

environmental assessment must be 

received no later than January 20, 2011. 

Public Hearing. A public hearing will 

take place on Thursday, December 9, 

2010 from 4 p.m. to 8 p.m. at the Flower 

Garden Banks National Marine 

Sanctuary office building at 4700 

Avenue U, Building 216, Galveston, TX 

77551. 

ADDRESSES: Comments may be 

submitted by any of the following 

methods: 

• Electronic Submission: Submit 

electronic comments to docket number 

NOAA–NOS–2010–0208 via the Federal 

e-Rulemaking Portal at http:// 

www.regulations.gov. 

• Mail: George Schmahl, 

Superintendent, Flower Garden Banks 

National Marine Sanctuary, 4700 

Avenue U, Building 216, Galveston, TX 

77551. 

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 (for electronic comments 

submitted via the Federal e-Rulemaking 

Portal, 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. 

Copies of the draft management plan, 

draft environmental assessment, and 

this Federal Register notice are 

available for public review and 

download at http:// 

flowergarden.noaa.gov/management/ 

mpr.html. 


emcdonald on DSK2BSOYB1PROD with PROPOSALS
Federal Register / Vol. 75, No. 204 / Friday, October 22, 2010 / Proposed Rules 65257 

FOR FURTHER INFORMATION CONTACT: 

George Schmahl, Superintendent, 

Flower Garden Banks National Marine 

Sanctuary, 4700 Avenue U, Building 

216, Galveston, TX 77551. 

E-mail: 

fgbnmsmanagementplan@noaa.gov. 

Phone: (409) 621–5151. 

SUPPLEMENTARY INFORMATION: 

I. Background 

The National Marine Sanctuaries Act 

(NMSA) (16 U.S.C. 1431 et seq.) 

authorizes the Secretary of Commerce 

(Secretary) to designate and protect as a 

national marine sanctuary areas of the 

marine environment that are of special 

national significance due to their 

conservation, recreational, ecological, 

historical, scientific, cultural, 

archeological, educational, or esthetic 

qualities. Day-to-day management of 

national marine sanctuaries has been 

delegated by the Secretary to NOAA’s 

Office of National Marine Sanctuaries 

(ONMS). The primary objective of the 

NMSA is to protect sanctuary resources, 

such as coral reefs, and cultural 

resources, such as historical shipwrecks, 

historic structures, and archaeological 

sites. 

NOAA issued a notice of designation 

for Flower Garden Banks National 

Marine Sanctuary to Congress and 

simultaneously published the notice 

(together with implementing 

regulations) in the Federal Register in 

1991 (56 FR 63634, Dec. 5, 1991). The 

sanctuary was subsequently designated 

by Congress and signed into law by the 

President, effective January 17, 1992 

(Pub. L. 102–251). 

The Flower Garden Banks National 

Marine Sanctuary originally consisted of 

two areas known as East and West 

Flower Garden Banks (56 FR 63634; 

Pub. L. 102–251). Congress added 

Stetson Bank to the sanctuary in 1996 

(Pub. L. 104–283). These three areas are 

located in the northwestern Gulf of 

Mexico and are described as underwater 

hills formed by rising domes of ancient 

salt. The banks range in depth from 55 

feet to nearly 500 feet, providing 

conditions that support several distinct 

habitats, including the northern-most 

coral reefs in the continental United 

States. These and similar formations 

throughout the northern Gulf of Mexico 

provide the foundation for essential 

habitat for a variety of species. The 

combination of location and geology 

makes the Flower Garden Banks an 

extremely productive and diverse 

ecosystem, but it also presents a unique 

set of challenges for managing and 

protecting its natural wonders. 

The FGBNMS regulations 

implementing the designation were first 

published on December 5, 1991 (56 FR 

63634). Those regulations became 

effective on January 18, 1994 (58 FR 

65664) and were later amended with an 

effective date of January 22, 2001 to 

include Stetson Bank in the boundaries 

of the Flower Garden Banks National 

Marine Sanctuary consistent with 

Public Law 104–283 (65 FR 81176). The 

regulations set forth the sanctuary 

boundaries; prohibited a relatively 

narrow range of activities; established 

requirements applicable to certain 

activities; and established permit and 

certification procedures, among other 

things. To prevent injuries to corals 

from anchoring, NOAA amended the 

FGBNMS regulations in 2001 (66 FR 

58370) to conform to the regulations 

adopted by the International Maritime 

Organization and prohibit all anchoring 

and mooring in the sanctuary with the 

exception that vessels 100 feet (30.48 

meters) and under in length are 

permitted to moor at sanctuary mooring 

buoys. 

The ONMS is required by NMSA 

Section 304(e) to periodically review 

sanctuary management plans to ensure 

that sanctuary management continues to 

best conserve, protect, and enhance the 

nationally significant living and cultural 

resources at each site. Management 

plans generally outline regulatory goals, 

describe boundaries, identify staffing 

and budget needs, and set priorities and 

performance measures for resource 

protection, research and education 

programs. They also guide the 

development of future management 

activities. Due to such review, NOAA 

has decided to update and revise the 

1991 FGBNMS management plan to 

address recent scientific discoveries, 

advancements in managing marine 

resources, and new resource 

management issues. 

The FGBNMS management plan 

review process began in October 2006 

with the release of the Flower Garden 

Banks National Marine Sanctuary State 

of the Sanctuary Report and public 

meetings to obtain information about 

the public’s interests and priorities for 

FGBNMS management. Subsequently, 

NOAA worked with the FGBNMS 

Advisory Council to prioritize issues 

and develop appropriate management 

strategies and activities for the 

preparation of a draft revised 

management plan. Based on this input, 

NOAA prepared a draft revised 

management plan that consists of six 

action plans: Sanctuary expansion, 

education and outreach, research and 

monitoring, resource protection, visitor 

use, and operations and administration. 

Pursuant to the National Environmental 

Policy Act, 42 U.S.C. 4331–4345 

(NEPA), NOAA also prepared a 

programmatic environmental 

assessment to analyze the 

environmental impacts associated with 

the proposed management plan revision 

and this proposed rule. 

The resource protection and visitor 

use action plans in the draft 

management plan include several 

strategies that would require changes to 

the FGBNMS regulations. NOAA 

therefore is proposing to amend the 

FGBNMS regulations to make several 

substantive changes to reflect these new 

strategies. The changes would address 

conflicts between different types of 

visitors, protection of rays and whale 

sharks, and vessel discharge and 

deposits. The changes would also 

eliminate outdated references to 

paragraphs that no longer exist, update 

cross references to other paragraphs, 

and establish definitions for various 

new terms adopted in this proposed 

rulemaking. 

II. Summary of the Proposed Revisions 

This rulemaking proposes to take the 

following five actions: 

1. Require any vessel moored in the 

sanctuary to exhibit the blue and white 

International Code flag ‘‘A’’ (‘‘alpha’’ dive 

flag) whenever a SCUBA diver is in the 

water and remove the ‘‘alpha’’ dive flag 

once all divers exit the water and return 

on board the vessel; 

2. Clarify that the prohibition on 

discharge or deposit of any material or 

other matter applies to discharges and 

deposits ‘‘from within or into’’ the 

sanctuary; and clarify that the exception 

to the discharge/deposit prohibition for 

fish, fish parts, or chumming materials 

(bait) applies only to discharges or 

deposits made during the conduct of 

fishing with conventional hook and line 

gear within the sanctuary; 

3. Eliminate the exception that allows 

for the discharge or deposit of 

biodegradable effluents in the sanctuary; 

eliminate the phrase ‘‘routine vessel 

operation’’; clarify that the exception 

applies only to discharge or deposit of 

clean vessel deck wash down, clean 

vessel engine cooling water, clean bilge 

water, or anchor wash, and clean 

effluent from an operable Type I or II 

marine sanitation device (MSD); require 

vessel operators to lock all MSDs in a 

manner that prevents discharge or 

deposit of untreated sewage; and add 

definitions for the terms ‘‘clean’’ and 

‘‘harmful matter’’ to provide quality 

requirements for discharges and 

deposits; 

4. Add a new prohibition on killing, 

injuring, attracting, touching, or 

disturbing a ray or whale shark; and add 

definitions for the terms ‘‘attract or 


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attracting’’ and ‘‘disturb or disturbing a 

ray or whale shark’’; and 

5. Make technical corrections to 

eliminate outdated references of 

paragraphs that no longer exist in the 

regulations; and update cross references 

to other paragraphs. 

A. Dive Flag Requirements 

NOAA proposes to require any vessel 

engaged in diving activity within the 

FGBNMS to clearly exhibit the blue and 

white International Code flag ‘‘A’’ 

(‘‘alpha’’ dive flag) whenever a SCUBA 

diver from that vessel is in the water 

and remove the ‘‘alpha’’ dive flag once 

all SCUBA divers exit the water and 

return on board the vessel. The U.S. 

Coast Guard (USCG) requires any vessel 

in Federal waters engaged in diving 

operations to use a rigid replica of the 

‘‘alpha’’ dive flag of a size not less than 

1 meter in height, when that vessel is of 

a size that makes it impracticable to 

exhibit all lights and shapes prescribed 

in USCG regulations (33 CFR 83.27). 

The USCG also requires the vessel 

operator to take measures to ensure allround visibility of the ‘‘alpha’’ dive flag. 

Because the entire sanctuary is within 

Federal waters, NOAA proposes to 

require the use of the ‘‘alpha’’ dive flag, 

whenever a vessel is engaged in diving 

activity in the sanctuary. This regulation 

would apply to all vessels engaged in 

diving operations, not just to vessels of 

a size that makes it impracticable to 

exhibit all lights and shapes prescribed 

in USCG regulations. 

B. General Discharge/Deposit 

Prohibition 

To ensure consistency among the 

regulations for other sanctuaries, this 

rule clarifies that the prohibition on 

discharging or depositing any material 

or other matter applies to discharges 

and deposits ‘‘from within or into’’ the 

sanctuary. Adding the word ‘‘into’’ is 

intended to clarify that the prohibition 

does not only apply to discharges and 

deposits originating in the sanctuary. 

The prohibition also applies, for 

example, to discharges and deposits 

above the sanctuary. The rule also 

clarifies that the exception to the 

prohibition on discharges or deposits for 

fish, fish parts, or chumming materials 

(bait) applies only to discharges made 

during the conduct of fishing with 

conventional hook and line gear within 

the sanctuary. This rule prevents the 

dumping of fish, fish parts, or 

chumming materials at all other times 

except for during fishing with 

conventional hook and line gear within 

the sanctuary. 

C. Vessel Discharges and Deposits 

NOAA proposes to amend the 

FGBNMS prohibition on discharges or 

deposits from vessels. This rule clarifies 

that the FGBNMS regulation (§ 922.122 

(a)(3)(i)(B)) for discharge or deposit of 

vessel waste generated by marine 

sanitation devices approved in 

accordance with the Clean Water Act, as 

amended, 33 U.S.C. 1251 et seq., was 

not intended to allow the discharge of 

untreated sewage (e.g., discharges from 

Type III MSDs) into the sanctuary. Type 

I and Type II MSDs treat sewage, 

whereas Type III MSDs store waste until 

it is removed at designated pump-out 

stations on shore or discharged at sea. 

Therefore, NOAA proposes to modify 

the FGBNMS regulations to clarify that 

only discharges or deposits of effluent 

from properly functioning Type I or II 

MSDs are allowed in the sanctuary. 

In addition, NOAA proposes to 

require all MSDs be locked in a manner 

that prevents discharge or deposit of 

untreated sewage. The requirement that 

MSDs be locked (e.g., locking closed an 

overboard discharge valve) helps 

prevent both intentional and 

unintentional overboard discharges of 

untreated sewage within the sanctuary. 

The revised regulations would allow 

vessels to discharge clean effluent from 

a Type I or Type II MSD. The use of the 

word ‘‘clean’’ would replace the use of 

the word ‘‘biodegradable’’ in the 

discharge regulations. Under the revised 

regulations, ‘‘clean’’ means not 

containing detectable levels of harmful 

matter; and ‘‘harmful matter’’ means any 

substance, or combination of 

substances, that because of its quantity, 

concentration, or physical, chemical, or 

infectious characteristics may pose a 

present or potential threat to sanctuary 

resources or qualities, including but not 

limited to: fishing nets, fishing line, 

hooks, fuel, oil, and those contaminants 

(regardless of quantity) listed at 40 CFR 

302.4 (§ 922.131) pursuant to 42 U.S.C. 

9601(14) of the Comprehensive 

Environmental Response, 

Compensation, and Liability Act, as 

amended. 

NOAA decided to remove the term 

‘‘biodegradable’’ from the regulations 

because NOAA determined that the 

term has no recognized legal definition, 

and products are labeled 

‘‘biodegradable’’ without reference to a 

fixed set of standards. NOAA could 

define the term; however, it would not 

be reasonable to expect a vessel operator 

to know which of the wide spectrum of 

products labeled as ‘‘biodegradable’’ 

meet NOAA’s definition. Defining the 

terms ‘‘clean’’ and ‘‘harmful matter’’ 

provide vessel operators with a 

definition of what is prohibited, and 

focuses on the types of contaminants 

that pose the greatest threat to water 

quality within the sanctuary. 

Since the phrase ‘‘routine vessel 

operations’’ lacks a legal definition and 

potentially raises enforcement and 

compliance issues, NOAA proposes to 

replace the exception for ‘‘water 

generated from routine vessel 

operations’’ with the requirement that 

clean deck wash down, clean cooling 

water, and clean bilge water all be free 

of detectable levels of ‘‘harmful matter’’ 

as defined by the regulations. This 

facilitates compliance by clearly 

identifying what types of discharges and 

deposits from routine vessel operations 

are permitted under the regulations, and 

focuses on those contaminants that pose 

the greatest threat to water quality. The 

requirement also makes the discharge 

regulations consistent with recent 

requirements implemented for other 

national marine sanctuaries. 

D. Killing, Injuring, Attracting, Touching 

or Disturbing a Ray or Whale Shark 

Approximately 20 species of sharks 

and rays have been documented at the 

Flower Garden and Stetson Banks; some 

are seasonal, others frequent the 

sanctuary year-round. During the winter 

months, spotted eagle rays (Aetobatus 

narinari) are visitors to all three banks. 

The reason for the seasonality of their 

visits is unclear, but their occurrence is 

quite predictable. Summer months 

usually bring whale sharks (Rhincodon 

typus) to the area. These filter-feeding 

creatures can reach over 30 feet (9 

meters) in length. Manta rays (Manta 

birostris) and the very similar-looking 

mobula rays (Mobula spp.) are regular 

visitors to the sanctuary throughout the 

year. At least 58 different individual 

manta rays have been documented and 

identified by distinctive markings on 

their undersides. Recent acoustic 

tracking of the manta rays has revealed 

that the mantas are moving between the 

three banks of the sanctuary. 

Whale sharks and rays are transient 

creatures and migrate between areas for 

feeding and mating. The sanctuary is a 

place where rays and whale sharks 

should be protected from humaninduced death, injury or other harm. 

Divers can physically harm rays and 

whale sharks by attracting, touching, 

riding, or pursuing these animals. Their 

external sensory systems are affected by 

unnatural activation, which has 

unknown consequences on their ability 

to sense their environment. These 

animals may actively avoid diver 

interaction by changing direction or 

diving, and may exhibit violent 

shuddering. When these responses 


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occur, rays and whale sharks expend 

energy in ways other than feeding and 

other natural activities, which can affect 

their overall health. In addition, people 

can cause injury to the skin of these 

animals through touching, and can 

expose the animals to other potential 

injuries. Finally, attracting rays and 

whale sharks changes their behavior and 

may negatively impact their health. As 

an example of how rays have been 

affected by divers, stingrays in the 

Cayman Islands have developed 

shoaling behavior and altered feeding 

habits, as well as exhibit skin abrasions 

from handling. Scientific citations 

regarding the concerns and examples 

here can be found in the references 

section of the draft environmental 

assessment (see ADDRESSES for 

instructions on obtaining a copy). 

These species are not listed under the 

Endangered Species Act (ESA) or 

designated as depleted under the 

Marine Mammal Protection Act 

(MMPA) because they are not mammals. 

Therefore, they are not protected in the 

same manner as threatened or 

endangered species protected under the 

ESA or depleted marine mammals 

protected under the MMPA. NOAA 

proposes to strengthen the protection of 

rays and whale sharks from harm (or 

likelihood thereof) in the sanctuary by 

prohibiting killing, injuring, attracting, 

touching, or disturbing these animals. 

The intent is to prevent human 

interaction with rays and whale sharks 

in such a manner that the animals 

change direction, dive away from 

human interaction, shudder, or have 

any other adverse behavioral or physical 

reaction. In order to make this new 

prohibition as clear as possible, NOAA 

is proposing to add definitions for the 

terms ‘‘attract or attracting’’ and ‘‘disturb 

or disturbing a ray or whale shark’’ in 

§ 922.121. 

E. Technical Corrections 

NOAA proposes to make a technical 

correction to eliminate the references in 

the regulations to § 922.122(a)(iv), 

because that clause no longer exists. 

This subparagraph references a specific 

prohibition on vessel anchoring 

activities that was eliminated from the 

FGBNMS regulations in 2001 (66 FR 

58370). 

NOAA also proposes to update cross 

references in § 922.122(a) that may 

change as a result of the re-designation 

of paragraphs associated with this 

proposed rule. 

III. Classification 

A. National Environmental Policy Act 

NOAA has prepared a draft 

programmatic environmental 

assessment to analyze the potential 

environmental impacts of this proposed 

rulemaking. Copies are available at the 

address and Web site listed in the 

ADDRESSES section of this proposed rule. 

Responses to comments received on this 

proposed rule will be published in the 

final programmatic environmental 

assessment and preamble to the final 

rule. 

B. Executive Order 12866: Regulatory 

Impact 

Under Executive Order 12866, if the 

proposed regulations are ‘‘significant’’ as 

defined in section 3(f) of the Order, an 

assessment of the potential costs and 

benefits of the regulatory action must be 

prepared and submitted to the Office of 

Management and Budget. This proposed 

rule has been determined to be not 

significant within the meaning of 

Executive Order 12866. 

C. Executive Order 13132: Federalism 

Assessment 

All of the proposed actions would 

occur in the Exclusive Economic Zone 

beyond State jurisdiction. NOAA has 

concluded this regulatory action does 

not have federalism implications 

sufficient to warrant preparation of a 

federalism assessment under Executive 

Order 13132. 

D. Paperwork Reduction Act 

This rule does not contain any new 

information or revisions to the existing 

information collection requirement that 

was previously approved for this rule by 

OMB (OMB Control Number 0648– 

0141) under the Paperwork Reduction 

Act of 1980, 44 U.S.C. 3501 et seq. 

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. 

E. 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. The factual basis for this 

certification is as follows: Regulations 

regarding dive flag requirements. NOAA 

proposes to require any vessel engaged 

in diving activities within FGBNMS 

clearly exhibit the blue and white 

International Code flag ‘‘A’’ (‘‘alpha’’ dive 

flag) whenever a SCUBA diver is in the 

water and remove the ‘‘alpha’’ dive flag 

once all SCUBA divers exit the water 

and return on board the vessel. The SBA 

does not provide a category of business 

for recreational fishing or diving 

operators in their list of size standards 

for small businesses; however, it 

provides a category for ‘‘sporting goods 

store’’ and ‘‘marina’’, which can be used 

to approximate the size standards for 

the businesses affected by this rule. 

According to the SBA, a small business 

in the sporting goods or marina 

industries is one that has annual 

receipts of less than $7 million. 

Sanctuary staff identified three local 

businesses that currently offer trips to 

FGBNMS for customers from the 

Galveston, TX area that would be 

affected by the flag requirement. Each of 

these businesses falls under the SBA’s 

definition of a ‘‘small entity’’ for the 

purposes of this action. It is possible 

that other diving businesses based from 

other areas in Texas and Louisiana 

might offer trips to FGBNMS, but this 

situation is unlikely given the 

availability of other dive sites closer to 

these areas. The cost of complying with 

this requirement would be the cost of 

acquiring a blue and white International 

Code flag ‘‘A.’’ This expense, even for 

the small entities affected, is a negligible 

one, and NOAA also considers the cost 

of exhibiting a flag negligible, 

particularly since many dive operators 

are already required to use the flag in 

coastal waters and therefore probably 

already own a flag. This proposed 

regulation would address a safety issue 

by reducing conflicts among users and 

is not expected to have any economic 

impact to these small businesses. 

Regulation of Vessel Discharges/ 

Deposits. Small entities that may be 

affected by the vessel discharge 

regulation fall under three categories: 

Commercial fishing businesses, 

recreational fishing businesses, and 

non-consumptive (diving) charter 

businesses. According to the SBA, a 

small business in the commercial 

fishing industry is one that has annual 

receipts of less than $4 million. A small 

business in the recreational fishing or 

dive operator industry is estimated to 

have less than $7 million in annual 

receipts, as discussed above. The exact 

number of commercial and recreational 

fishing businesses that operate in 

FGBNMS is unknown and currently 

being investigated, but NOAA social 

scientists estimate that there are fewer 

than 15 small businesses in these three 


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categories combined. Each of these 

businesses is considered a ‘‘small entity’’ 

based on the standards set out above. 

Significant adverse impacts are not 

expected to result for any of the 

sanctuary’s small entities from the 

proposed prohibition on discharging or 

depositing any material or other matter 

from within or into the sanctuary 

because in the course of normal, lawful 

operations, no small entity activities are 

expected to produce such discharges/ 

deposits. Additionally, this proposed 

regulation would except discharges/ 

deposits likely to come from vesselbased small entities, including clean 

effluent incidental to vessel use and 

generated by an operable Type I or II 

marine sanitation device (U.S. Coast 

Guard classification) approved in 

accordance with section 312 of the 

Federal Water Pollution Control Act, as 

amended (33 U.S.C. 1321 et seq.). This 

proposed regulation would also except 

clean vessel wash down, clean vessel 

engine cooling water, clean vessel 

engine exhaust, and fish, fish parts, or 

chumming materials (bait) used in or 

resulting from fishing with conventional 

hook and line gear within the sanctuary, 

provided that such later discharge or 

deposit is during the conduct of such 

fishing. 

The proposed modification to the 

sanctuary’s discharge/deposit regulation 

clarifying that discharges allowed from 

marine sanitation devices applies only 

to Type I and Type II marine sanitation 

devices would not introduce any new 

restrictions on the 15 or fewer small 

entities operating in the sanctuary, and 

would merely clarify the original intent 

of the sanctuary’s discharge regulation. 

Most vessels large enough to support 

fishing or diving business to an offshore 

location such as FGBNMS have a 

marine sanitation device on board. All 

types of marine sanitation devices allow 

a vessel operator to either withhold 

discharges if they are not properly 

treated (Type III) or to treat wastewater 

prior to discharge (Type I and II); 

therefore this proposed regulation 

would not require a small entity to 

significantly alter its usual practices. To 

the extent that this clarification might 

affect customary, though illegal, sewage 

discharge practices of some small 

entities, the adverse affect on those 

operations is expected to be less than 

significant because such discharges may 

legally occur beyond the sanctuary’s 

boundary, or vessel sewage may be 

pumped out and disposed of at 

mainland ports and harbors. 

Additionally, some small entities may 

receive indirect benefits from this 

clarification, especially as it might 

pertain to preventing large volume 

discharges from larger vessels, since this 

prohibition may contribute to sustaining 

favorable environmental quality in their 

area of operation. 

The proposed modification to the 

sanctuary’s discharge/deposit regulation 

that would specify that discharging or 

depositing fish, fish parts, or chumming 

materials (bait) may occur only during 

the conduct of fishing with 

conventional hook and line gear within 

the sanctuary is not expected to have a 

significant adverse impact on small 

entities, because it would not apply to 

the conduct of such fishing within the 

sanctuary. NOAA believes no small 

entities currently discharge fish or fish 

parts in the sanctuary as a result of 

fishing outside the sanctuary 

boundaries, so no small businesses 

would be affected by this proposed 

regulation. In some areas ‘‘chumming’’ is 

a practice that has been associated with 

non-consumptive recreational activities 

(e.g., attracting sharks for photography), 

or in some cases research activities (e.g., 

attracting birds for study). NOAA 

believes that there are currently no 

small entities carrying on such activities 

in the sanctuary. Small businesses not 

engaged in fishing with conventional 

hook and line gear could apply for and, 

if appropriate, be granted a sanctuary 

permit (e.g., research or education) to 

conduct this otherwise prohibited 

discharge/deposit. 

Regulation to protect rays and whale 

sharks. NOAA proposes to increase 

protection of rays and whale sharks 

from harm and harassment by adding a 

prohibition on killing, injuring, 

attracting, touching, or disturbing these 

animals. As mentioned above, three 

small businesses currently operate 

vessels that allow customers the 

opportunity to swim and/or SCUBA 

dive with rays and whale sharks. NOAA 

believes that divers’ experience of the 

sanctuary marine environment would 

not be diminished by this prohibition 

since swimming or diving near these 

animals would still be allowed under 

the proposed regulation. Because the 

divers’ experience will not be 

significantly altered by these rules, 

NOAA anticipates no decreased demand 

for the services the affected small 

entities provide. Therefore, significant 

adverse economic impacts to small 

businesses are not expected to result 

from this proposed regulatory action 

even if the proposed regulation requires 

the companies to slightly alter their 

current practices. 

Because this action would not have a 

significant economic impact on a 

substantial number of small entities, no 

initial regulatory flexibility analysis was 

prepared. 

IV. Request for Comments 

NOAA requests comments on this 

proposed rule and the draft 

environmental assessment for 90 days 

after publication of this notice. 

Dated: October 19, 2010. 

Christopher Cartwright, 

Associate Assistant Administrator for 

Management and CFO/CAO, Ocean Services 

and Coastal Zone Management. 

List of Subjects in 15 CFR Part 922 

Administrative practice and 

procedure, Coastal zone, Fish, Fisheries, 

Historic preservation, Intergovernmental 

relations, Marine resources, Monuments 

and memorials, Natural resources, 

Wildlife, Wildlife refuges, Wildlife 

management areas. 

For the reasons discussed in the 

preamble, NOAA proposes to amend 

part 922, title 16 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. Amend § 922.121 to add definitions 

of ‘‘Attract or attracting’’, ‘‘Clean’’, 

‘‘Disturb or disturbing a ray or whale 

shark’’, and ‘‘Harmful matter’’ in 

alphabetical order to read as follows: 

§ 922.121 Definitions. 

* * * * * 

Attract or attracting means the 

conduct of any activity that lures or may 

lure any animal in the Sanctuary by 

using food, bait, chum, dyes, decoys 

(e.g., surfboards or body boards used as 

decoys), acoustics or any other means, 

except the mere presence of human 

beings (e.g., swimmers, divers, boaters, 

kayakers, surfers). 

Clean means not containing 

detectable levels of harmful matter. 

Disturb or disturbing a ray or whale 

shark means to, or attempt to, ride, 

pursue, hunt, restrain, detain (no matter 

how temporarily), capture, collect, or 

conduct any other activity that disrupts 

or has the potential to disrupt any ray 

or whale shark in the Sanctuary by, for 

example, causing or threatening to cause 

the ray or whale shark to shudder or 

alter one or more of its natural 

behavioral traits or patterns. 

Harmful matter means any substance, 

or combination of substances, that 

because of its quantity, concentration, or 

physical, chemical, or infectious 


emcdonald on DSK2BSOYB1PROD with PROPOSALS
Federal Register / Vol. 75, No. 204 / Friday, October 22, 2010 / Proposed Rules 65261 

characteristics may pose a present or 

potential threat to Sanctuary resources 

or qualities, including but not limited 

to: Fishing nets, fishing line, hooks, 

fuel, oil, and those contaminants 

(regardless of quantity) listed at 40 CFR 

302.4 pursuant to 42 U.S.C. 9601(14) of 

the Comprehensive Environmental 

Response, Compensation, and Liability 

Act, as amended. 

* * * * * 

3. Amend § 922.122 as follows: 

a. Add new paragraph (a)(2)(iii). 

b. Revise paragraphs (a)(3)(i) 

introductory text, (a)(3)(i)(A), 

(a)(3)(i)(B), and (a)(3)(i)(C). 

c. Redesignate paragraphs (a)(7) 

through (10) as paragraphs (a)(8) 

through (11), respectively. 

d. Add new paragraph (a)(7). 

e. Revise paragraph (c). 

f. Amend paragraphs (d), (e), (f), and 

(g) by removing the phrase ‘‘paragraphs 

(a)(2) through (10)’’ wherever it appears 

and adding in its place ‘‘paragraphs 

(a)(2) through (11)’’. 

The additions and revisions read as 

follows: 

§ 922.122 Prohibited or otherwise 

regulated activities 

(a) * * * 

(2) * * * 

(iii) Mooring a vessel in the Sanctuary 

without clearly displaying the blue and 

white International Code flag ‘‘A’’ 

(‘‘alpha’’ dive flag) whenever a SCUBA 

diver from that vessel is in the water or 

removing the ‘‘alpha’’ dive flag before all 

SCUBA divers exit the water and return 

back on board the vessel. 

* * * * * 

(3)(i) Discharging or depositing, from 

within or into the Sanctuary, any 

material or other matter except: 

(A) Fish, fish parts, chumming 

materials or bait used in or resulting 

from fishing with conventional hook 

and line gear in the Sanctuary, provided 

that such discharge or deposit occurs 

during the conduct of such fishing 

within the Sanctuary; 

(B) Clean effluent generated 

incidental to vessel use by an operable 

Type I or Type II marine sanitation 

device (U.S. Coast Guard classification) 

approved in accordance with section 

312 of the Federal Water Pollution 

Control Act, as amended (FWPCA), 33 

U.S.C. 1322. Vessel operators must lock 

marine sanitation devices in a manner 

that prevents discharge or deposit of 

untreated sewage; 

(C) Clean vessel deck wash down, 

clean vessel engine cooling water, clean 

vessel generator cooling water, clean 

bilge water, or anchor wash; 

* * * * * 

(7) Killing, injuring, attracting, 

touching, or disturbing a ray or whale 

shark in the Sanctuary. 

* * * * * 

(c) The prohibitions in paragraphs 

(a)(2)(i), (a)(4), and (a)(11) of this section 

do not apply to necessary activities 

conducted in areas of the Sanctuary 

outside the no-activity zones and 

incidental to exploration for, 

development of, or production of oil or 

gas in those areas. 

* * * * * 

§ 922.123 [Amended] 

4. Amend § 922.123 (a) and (c) by 

removing the phrase ‘‘paragraphs (a)(2) 

through (10)’’ and adding in its place 

‘‘paragraphs (a)(2) through (11).’’ 

[FR Doc. 2010–26762 Filed 10–21–10; 8:45 am] 

BILLING CODE 3510–NK–P 

CONSUMER PRODUCT SAFETY 

COMMISSION 

16 CFR Part 1450 

Virginia Graeme Baker Pool and Spa 

Safety Act; Public Accommodation 

AGENCY: Consumer Product Safety 

Commission. 

ACTION: Proposed interpretive rule. 

SUMMARY: The Consumer Product Safety 

Commission (‘‘Commission’’ or ‘‘CPSC’’) 

is proposing this interpretive rule to 

interpret the term ‘‘public 

accommodations facility’’ as used in the 

Virginia Graeme Baker Pool and Spa 

Safety Act. 

DATES: Written comments in response to 

this document must be received no later 

than December 21, 2010. 

ADDRESSES: You may submit comments, 

identified by Docket No. CPSC–2010– 

0102, by any of the following methods: 

Electronic Submissions 

Submit electronic comments in the 

following way: Federal eRulemaking 

Portal: http://www.regulations.gov. 

Follow the instructions for submitting 

comments. To ensure timely processing 

of comments, the Commission is no 

longer accepting comments submitted 

by electronic mail (e-mail) except 

through http://www.regulations.gov. 

Written Submissions 

Submit written submissions in the 

following way: Mail/Hand delivery/ 

Courier (for paper (preferably in five 

copies), disk, or CD–ROM submissions), 

to: Office of the Secretary, Consumer 

Product Safety Commission, Room 502, 

4330 East West Highway, Bethesda, MD 

20814; telephone (301) 504–7923. 

Instructions: All submissions received 

must include the agency name and 

docket number for this rulemaking. All 

comments received may be posted 

without change, including any personal 

identifiers, contact information, or other 

personal information provided, to 

http://www.regulations.gov. Do not 

submit confidential business 

information, trade secret information, or 

other sensitive or protected information 

electronically. Such information should 

be submitted in writing. 

Docket: For access to the docket to 

read background comments or 

comments received, go to http:// 

www.regulations.gov. 

FOR FURTHER INFORMATION CONTACT: 

Barbara E. Little, Regulatory Affairs 

Attorney, Office of General Counsel, 

Consumer Product Safety Commission, 

4330 East West Highway, Bethesda, 

Maryland 20814–4408; blittle@cpsc.gov. 

SUPPLEMENTARY INFORMATION: 

A. Background 

The Virginia Graeme Baker Pool and 

Spa Safety Act, 15 U.S.C. 8001, (‘‘VGB 

Act’’ or ‘‘Act’’) requires that drains in 

public pools and spas be equipped with 

ASME/ANSI A112.19.8 compliant drain 

covers, and that each public pool and 

spa with a single main drain other than 

an unblockable drain be equipped with 

certain secondary anti-entrapment 

systems. Section 1404(c) of the Act. The 

Act defines ‘‘public pool and spa’’ in 

relevant part as a ‘‘swimming pool or 

spa that is open exclusively to patrons 

of a hotel or other public 

accommodations facility.’’ Section 

1404(c)(2)(B)(iii) of the Act. The Act 

does not define the term ‘‘public 

accommodations facility.’’ 

In response to numerous inquiries 

regarding what constitutes a public 

accommodations facility under the VGB 

Act, the Commission published a 

proposed interpretive rule on the 

definition of ‘‘public accommodations 

facility’’ on March 15, 2010 (75 FR 

12167). The proposed interpretive rule 

would interpret ‘‘public 

accommodations facility’’ to mean: ‘‘An 

inn, hotel, motel, or other place of 

lodging, except for an establishment 

located within a building that contains 

not more than five rooms for rent or hire 

and that is actually occupied by the 

proprietor of such establishment as the 

residence of such proprietor.’’ 

CPSC received six comments on the 

proposed interpretive rule, including 

two comments from State health 

departments, one from the Tennessee 

Hospitality Association, one from an 


emcdonald on DSK2BSOYB1PROD with PROPOSALS