        DEPARTMENT OF TRANSPORTATION
        National Highway Traffic Safety Administration
        49 CFR Parts 501, 509, 510, 511, 512, 520, 523, 525, 526, and 571
        [Docket No. NHTSA-2010-0159]
        Federal Motor Vehicle Safety Standards; Small Business Impacts of Motor Vehicle Safety

          AGENCY:
          National Highway Traffic Safety Administration (NHTSA), Department of Transportation (DOT).

          ACTION:
          Notice of regulatory review; request for comments.

          SUMMARY:
          NHTSA seeks comments on the economic impact of its regulations on small entities. As required by Section 610 of the Regulatory Flexibility Act, we are attempting to identify rules that may have a significant economic impact on a substantial number of small entities. We also request comments on ways to make these regulations easier to read and understand. The focus of this notice is rules that specifically relate to passenger cars, multipurpose passenger vehicles, trucks, buses, trailers, incomplete vehicles, motorcycles, and motor vehicle equipment.

          DATES:
          You should submit comments early enough to ensure that Docket Management receives them not later than February 7, 2011.

          ADDRESSES:
          You may submit comments [identified by DOT Docket ID Number NHTSA-2010-0054] by any of the following methods:
          • Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the online instructions for submitting comments.
          • Mail: Docket Management Facility: U.S. Department of Transportation, 1200 New Jersey Avenue, SE., West Building Ground Floor, Room W12-140, Washington, DC 20590-0001.
          • Hand Delivery or Courier: West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., between 9 a.m. and 5 p.m. ET, Monday through Friday, except Federal holidays.
          • Fax: 202-493-2251.

            Instructions: For detailed instructions on submitting comments and additional information see the Comments heading of the SUPPLEMENTARY INFORMATION section of this document. Note that all comments received will be posted without change to http://www.regulations.gov, including any personal information provided. Please see the Privacy Act heading below.

            Privacy Act: Anyone is able to search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the Federal Register published on April 11, 2000 (65 FR 19477-78) or you may visit http://DocketsInfo.dot.gov.

          FOR FURTHER INFORMATION CONTACT:
          Juanita Kavalauskas, Office of Regulatory Analysis, Office of Regulatory Analysis and Evaluation, National Highway Traffic Safety Administration, U.S. Department of Transportation, 1200 New Jersey Avenue, SE., Washington, DC 20590 (telephone 202-366-2584, fax 202-366-3189).

        SUPPLEMENTARY INFORMATION:
        I. Section 610 of the Regulatory Flexibility Act
        A. Background and Purpose

        Section 610 of the Regulatory Flexibility Act of 1980 (Pub. L. 96-354), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), requires agencies to conduct periodic reviews of final rules that have a significant economic impact on a substantial number of small business entities. The purpose of the reviews is to determine whether such rules should be continued without change, or should be amended or rescinded, consistent with the objectives of applicable statutes, to minimize any significant economic impact of the rules on a substantial number of such small entities.
        B. Review Schedule

        The Department of Transportation (DOT) published its Semiannual Regulatory Agenda on November 22, 1999, listing in Appendix D (64 FR 64684) those regulations that each operating administration will review under section 610 during the next 12 months. Appendix D contained DOT's 10-year review plan for all of its existing regulations. On November 24, 2008, NHTSA published in the Federal Register (73 FR 71401) a revised 10-year review plan for its existing regulations.
        The National Highway Traffic Safety Administration (NHTSA, “we”) has divided its rules into 10 groups by subject area. Each group will be reviewed once every 10 years, undergoing a two-stage process—an Analysis Year and a Review Year. For purposes of these reviews, a year will coincide with the fall-to-fall publication schedule of the Semiannual Regulatory Agenda. The newly revised 10-year plan will assess years 9 and 10 of the old plan in years 1 and 2 of the new plan. Year 1 (2008) began in the fall of 2008 and will end in the fall of 2009; Year 2 (2009) will begin in the fall of 2009 and will end in the fall of 2010; and so on.
        During the Analysis Year, we will request public comment on and analyze each of the rules in a given year's group to determine whether any rule has a significant impact on a substantial number of small entities and, thus, requires review in accordance with section 610 of the Regulatory Flexibility Act. In each fall's Regulatory Agenda, we will publish the results of the analyses we completed during the previous year. For rules that have subparts, or other discrete sections of rules that do have a significant impact on a substantial number of small entities, we will announce that we will be conducting a formal section 610 review during the following 12 months.
        The section 610 review will determine whether a specific rule should be revised or revoked to lessen its impact on small entities. We will consider: (1) The continued need for the rule; (2) the nature of complaints or comments received from the public; (3) the complexity of the rule; (4) the extent to which the rule overlaps, duplicates, or conflicts with other Federal rules or with state or local government rules; and (5) the length of time since the rule has been evaluated or the degree to which technology, economic conditions, or other factors have changed in the area affected by the rule. At the end of the Review Year, we will publish the results of our review. The following table shows the 10-year analysis and review schedule:

          National Highway Traffic Safety Administration Section 610 Reviews

            Year
            Regulations to be reviewed
            Analysis year
            Review year

            1
            49 CFR 571.223 through 571.500, and parts 575 and 579
            2008
            2009

            2
            23 CFR parts 1200 and 1300
            2009
            2010

            3
            49 CFR parts 501 through 526 and 571.213
            2010
            2011

            4
            49 CFR 571.131, 571.217, 571.220, 571.221, and 571.222
            2011
            2012

            5
            49 CFR 571.101 through 571.110, and 571.135, 571.138 and 571.139
            2012
            2013

            6
            49 CFR parts 529 through 578, except parts 571 and 575
            2013
            2014

            7
            49 CFR 571.111 through 571.129 and parts 580 through 588
            2014
            2015

            8
            49 CFR 571.201 through 571.212
            2015
            2016

            9
            49 CFR 571.214 through 571.219, except 571.217
            2016
            2017

            10
            49 CFR parts 591 through 595 and new parts and subparts
            2017
            2018

        C. Regulations Under Analysis
        During Year 3, we will continue to conduct a preliminary assessment of the following sections of 49 CFR parts 501 through 526 and 571.213:

            Section
            Title

            501
            Organization and delegation of powers and duties.

            509
            OMB control numbers for information collection requirements.

            510
            Information gathering powers.

            511
            Adjudicative procedures.

            512
            Confidential business information.

            520
            Procedures for considering environmental impacts.

            523
            Vehicle classification.

            525
            Exemptions from average fuel economy standards.

            526
            Petitions and plans for relief under the Automobile Fuel Efficiency Act of 1980.

            571.213
            Child restraint systems.

        We are seeking comments on whether any requirements in 49 CFR parts 501 through 526 and 571.213 have a significant economic impact on a substantial number of small entities. “Small entities” include small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations under 50,000. Business entities are generally defined as small businesses by Standard Industrial Classification (SIC) code, for the purposes of receiving Small Business Administration (SBA) assistance. Size standards established by SBA in 13 CFR 121.201 are expressed either in number of employees or annual receipts in millions of dollars, unless otherwise specified. The number of employees or annual receipts indicates the maximum allowed for a concern and its affiliates to be considered small. If your business or organization is a small entity and if any of the requirements in 49 CFR parts 501 through 526 and 571.213 have a significant economic impact on your business or organization, please submit a comment to explain how and to what degree these rules affect you, the extent of the economic impact on your business or organization, and why you believe the economic impact is significant.
        If the agency determines that there is a significant economic impact on a substantial number of small entities, it will ask for comment in a subsequent notice during the Review Year on how these impacts could be reduced without reducing safety.
        II. Plain Language
        A. Background and Purpose

        Executive Order 12866 and the President's memorandum of June 1, 1998, require each agency to write all rules in plain language. Application of the principles of plain language includes consideration of the following questions:
        • Have we organized the material to suit the public's needs?
        • Are the requirements in the rule clearly stated?
        • Does the rule contain technical language or jargon that is not clear?
        • Would a different format (grouping and order of sections, use of headings, paragraphing) make the rule easier to understand?
        • Would more (but shorter) sections be better?
        • Could we improve clarity by adding tables, lists, or diagrams?
        • What else could we do to make the rule easier to understand?
        If you have any responses to these questions, please include them in your comments on this document.
        B. Review Schedule
        In conjunction with our section 610 reviews, we will be performing plain language reviews over a ten-year period on a schedule consistent with the section 610 review schedule. We will review 49 CFR parts 501 through 526 and 571.213 to determine if these regulations can be reorganized and/or rewritten to make them easier to read, understand, and use. We encourage interested persons to submit draft regulatory language that clearly and simply communicates regulatory requirements, and other recommendations, such as for putting information in tables that may make the regulations easier to use.
        Comments
        How do I prepare and submit comments?
        Your comments must be written and in English. To ensure that your comments are correctly filed in the Docket, please include the docket number of this document in your comments.
        Your comments must not be more than 15 pages long. (49 CFR 553.21.) We established this limit to encourage you to write your primary comments in a concise fashion. However, you may attach necessary additional documents to your comments. There is no limit on the length of the attachments.

        Please submit two copies of your comments, including the attachments, to Docket Management at the address given above under ADDRESSES.

        Please note that pursuant to the Data Quality Act, in order for substantive data to be relied upon and used by the agency, it must meet the information quality standards set forth in the OMB and DOT Data Quality Act guidelines. Accordingly, we encourage you to consult the guidelines in preparing your comments. OMB's guidelines may be accessed at http://www.whitehouse.gov/omb/fedreg/reproducible.html. DOT's guidelines may be accessed at http://dmses.dot.gov/submit/DataQualityGuidelines.pdf.

        How can I be sure that my comments were received?
        If you wish Docket Management to notify you upon its receipt of your comments, enclose a self-addressed, stamped postcard in the envelope containing your comments. Upon receiving your comments, Docket Management will return the postcard by mail.
        How do I submit confidential business information?

        If you wish to submit any information under a claim of confidentiality, you should submit three copies of your complete submission, including the information you claim to be confidential business information, to the Chief Counsel, NHTSA, U.S. Department of Transportation, 1200 New Jersey Avenue SE., Washington, DC 20590. In addition, you should submit two copies, from which you have deleted the claimed confidential business information, to Docket Management at the address given above under ADDRESSES. When you send a comment containing information claimed to be confidential business information, you should include a cover letter setting forth the information specified in our confidential business information regulation. (49 CFR part 512.)
        Will the agency consider late comments?

        We will consider all comments that Docket Management receives before the close of business on the comment closing date indicated above under DATES. To the extent possible, we will also consider comments that Docket Management receives after that date.
        How can I read the comments submitted by other people?

        You may read the comments received by Docket Management at the address given above under ADDRESSES. The hours of the Docket are indicated above in the same location.
        You may also see the comments on the Internet. To read the comments on the Internet, take the following steps:
        (1) Go to the Federal Docket Management System (FDMS) at http://regulations.gov.

        (2) FDMS provides two basic methods of searching to retrieve dockets and docket materials that are available in the system: (a) “Quick Search” to search using a full-text search engine, or (b) “Advanced Search,” which displays various indexed fields such as the docket name, docket identification number, phase of the action, initiating office, date of issuance, document title, document identification number, type of document, Federal Register reference, CFR citation, etc. Each data field in the advanced search may be searched independently or in combination with other fields, as desired. Each search yields a simultaneous display of all available information found in FDMS that is relevant to the requested subject or topic.
        (3) You may download the comments. However, since the comments are imaged documents, instead of word processing documents, the “pdf” versions of the documents are word searchable.
        Please note that even after the comment closing date, we will continue to file relevant information in the Docket as it becomes available. Further, some people may submit late comments. Accordingly, we recommend that you periodically check the Docket for new material.

          Marilena Amoni,
          Associate Administrator for the National Center for Statistics and Analysis.

      [FR Doc. 2010-30698 Filed 12-8-10; 8:45 am]
      BILLING CODE 4910-59-P


        DEPARTMENT OF THE INTERIOR
        Fish and Wildlife Service
        50 CFR Part 17
        RIN 1018-AU44
        Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for the Cirsium hydrophilum var. hydrophilum (Suisun thistle) and Cordylanthus mollis ssp. mollis (soft bird's-beak)

          AGENCY:
          Fish and Wildlife Service, Interior.

          ACTION:
          Proposed rule; reopening of comment period, notice of availability of draft economic analysis, and amended Required Determinations.

          SUMMARY:

          We, the U.S. Fish and Wildlife Service (Service), announce the reopening of the comment period on the proposed designation of critical habitat for two tidal marsh plants: Cirsium hydrophilum var. hydrophilum (Suisun thistle) and Cordylanthus mollis ssp. mollis (soft bird's-beak). We also announce the availability of the draft economic analysis for the proposed critical habitat designation and an amended Required Determinations section of the proposal. The draft economic analysis identifies potential costs will be $1.6 million in undiscounted dollars over a 20-year period as a result of the proposed designation of critical habitat, including those costs coextensive with listing and recovery. Discounted future costs are estimated to be $1.4 million over 20 years ($95,002 annually) at a 3 percent discount rate, or $1.2 million over 20 years ($116,722 annually) at a 7 percent discount rate. The amended Required Determinations section provides our determination concerning compliance with applicable statutes and Executive Orders that we have deferred until the information from the draft economic analysis of this proposal was available. We are reopening the comment period to allow all interested parties to comment simultaneously on the proposed rule, the associated draft economic analysis, and the amended Required Determinations section.

          DATES:
          We will accept public comments until December 20, 2006.

          ADDRESSES:
          Written comments and materials may be submitted to us by any one of the following methods:
          (1) E-mail: You may send comments by electronic mail (e-mail) to: suisunplantsCH@fws.gov. For directions on how to file comments electronically, see the “Public Comments Solicited” section.
          (2) Mail or hand delivery: You may submit written comments and information to the Field Supervisor, U.S. Fish and Wildlife Service, 2800 Cottage Way, Suite W-2605, Sacramento, CA 95825.
          (3) Facsimile: You may fax your comments to 916-414-6712.
          (4) Federal eRulemaking Portal:
            http://www.regulations.gov. Follow the instructions for submitting comments.

          FOR FURTHER INFORMATION CONTACT:

          Arnold Roessler, Sacramento Fish and Wildlife Office, at the address listed in ADDRESSES (telephone 916-414-6600; facsimile 916-414-6712). Persons who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 800-877-8339.

        SUPPLEMENTARY INFORMATION:
        Public Comments Solicited

        We will accept written comments and information during this reopened comment period. We solicit comments on the original proposed critical habitat designation for Cirsium hydrophilum var. hydrophilum and Cordylanthus mollis ssp. mollis published in the Federal Register on April 11, 2006 (71 FR 18456) and on our draft economic analysis of the proposed designation. We will consider information and recommendations from all interested parties. We are particularly interested in comments concerning:

        (1) The reasons why any habitat should or should not be determined to be critical habitat, as provided by section 4 of the Endangered Species Act of 1973, as amended (Act) (16 U.S.C. 1531 et seq.), including whether the benefits of exclusion outweigh the benefits of including such area as part of critical habitat;
        (2) Specific information on the amount and distribution of C. hydrophilum var. hydrophilum or C. mollis ssp. mollis, and what habitat is essential to the conservation of these plants and why;
        (3) Land use designations and current or planned activities in the subject areas and their possible impacts on proposed habitat;

        (4) Information on the extent to which any State and local environmental protection measures referred to in the draft economic analysis may have been adopted largely as a result of the listing of C. hydrophilum var. hydrophilum or C. mollis ssp. mollis;

        (5) Information on whether the draft economic analysis identifies all State and local costs attributable to the proposed critical habitat designation, and information on any costs that have been inadvertently overlooked;
        (6) Information on whether the draft economic analysis makes appropriate assumptions regarding current practices and likely regulatory changes imposed as a result of the designation of critical habitat;
        (7) Information on whether the draft economic analysis correctly assesses the effect on regional costs associated with any land use controls that may derive from the designation of critical habitat;

        (8) Information on areas that could potentially be disproportionately impacted by designation of critical habitat for C. hydrophilum var. hydrophilum or C. mollis ssp. mollis;

        (9) Any foreseeable economic or other impacts resulting from the proposed designation of critical habitat, and in particular, any impacts on small entities or families; the reasons why our conclusion that the proposed designation of critical habitat will not result in a disproportionate effect to small businesses should or should not warrant further consideration; and other information that would indicate that the designation of critical habitat would or would not have any impacts on small entities or families;
        (10) Information on whether the draft economic analysis appropriately identifies all costs that could result from the designation; and
        (11) Information on whether our approach to critical habitat designation could be improved or modified in any way to provide for greater public participation and understanding, or to assist us in accommodating public concern and comments.
        Pursuant to section 4(b)(2) of the Act, an area may be excluded from critical habitat if it is determined that the benefits of such exclusion outweigh the benefits of including a particular area as critical habitat, unless the failure to designate such area as critical habitat will result in the extinction of the species. We may exclude an area from designated critical habitat based on economic impacts, national security, or any other relevant impact.

        All previous comments and information submitted during the initial comment period on the April 11, 2006, proposed rule (71 FR 18456) need not be resubmitted. If you wish to comment, you may submit your comments and materials concerning the draft economic analysis and the proposed rule by any one of several methods (see ADDRESSES). Our final designation of critical habitat will take into consideration all comments and any additional information we received during both comment periods. On the basis of public comment on this analysis, the critical habitat proposal, and the final economic analysis, we may, during the development of our final determination, find that areas proposed are not essential, are appropriate for exclusion under section 4(b)(2) of the Act, or are not appropriate for exclusion.

        If submitting comments electronically, please also include “Attn: RIN 1018-AU44” and your name and return address in your e-mail message. If you do not receive a confirmation from the system that we have received your e-mail message, please contact the person listed under FOR FURTHER INFORMATION CONTACT.
        Our practice is to make comments, including names and home addresses of respondents, available for public review during regular business hours. Individual respondents may request that we withhold their names and home addresses, etc., but if you wish us to consider withholding this information, you must state this prominently at the beginning of your comments. In addition, you must present rationale for withholding this information. This rationale must demonstrate that disclosure would constitute a clearly unwarranted invasion of privacy. Unsupported assertions will not meet this burden. In the absence of exceptional, documentable circumstances, this information will be released. We will always make submissions from organizations or businesses, and from individuals identifying themselves as representatives of or officials of organizations or businesses, available for public inspection in their entirety.

        You may obtain copies of the proposed rule and draft economic analysis by mail from the Sacramento Fish and Wildlife Office at the address listed under ADDRESSES or by visiting our Web site at http://www.fws.gov/sacramento/.

        Background

        We published a proposed rule to designate critical habitat for Cirsium hydrophilum var. hydrophilum and Cordylanthus mollis ssp. mollis on April 11, 2006 (71 FR 18456). Because the proposed critical habitat partially overlaps between the two species, the proposed critical habitat totaled approximately 2,726 acres (ac) (1,103 hectares (ha)) in Solano, Contra Costa, and Napa counties, California. In a June 14, 2004, settlement agreement, we agreed to submit for publication in the Federal Register a final critical habitat designation for these plants on or before April 1, 2007.
        Critical habitat is defined in section 3 of the Act as the specific areas within the geographical area occupied by a species, at the time it is listed in accordance with the Act, on which are found those physical or biological features essential to the conservation of the species and that may require special management considerations or protection, and specific areas outside the geographical area occupied by a species at the time it is listed, upon a determination that such areas are essential for the conservation of the species. If the proposed rule is made final, section 7 of the Act will prohibit destruction or adverse modification of critical habitat by any activity funded, authorized, or carried out by any Federal agency. Federal agencies proposing actions affecting areas designated as critical habitat must consult with us on the effects of their proposed actions, pursuant to section 7(a)(2) of the Act.
        Draft Economic Analysis

        Section 4(b)(2) of the Act requires that we designate or revise critical habitat based upon the best scientific and commercial data available, after taking into consideration the economic impact, impact on national security, or any other relevant impact of specifying any particular area as critical habitat. Based on the April 11, 2006, proposed rule to designate critical habitat for Cirsium hydrophilum var. hydrophilum and Cordylanthus mollis ssp. mollis (71 FR 18456), we have prepared a draft economic analysis of the proposed critical habitat designation.
        The current draft economic analysis estimates the foreseeable potential economic impacts of the proposed critical habitat designation and other conservation-related actions for these species on government agencies and private businesses and individuals. The economic analysis identifies potential costs will be $1.6 million in undiscounted dollars over a 20-year period as a result of the proposed designation of critical habitat, including those costs coextensive with listing and recovery. Discounted future costs are estimated to be $1.4 million over 20 years ($95,002 annually) at a 3 percent discount rate, or $1.2 million over 20 years ($116,722 annually) at a 7 percent discount rate.

        The draft economic analysis considers the potential economic effects of actions relating to the conservation of Cirsium hydrophilum var. hydrophilum and Cordylanthus mollis ssp. mollis, including costs associated with sections 4, 7, and 10 of the Act, and including those attributable to designating critical habitat. It further considers the economic effects of protective measures taken as a result of other Federal, State, and local laws that aid habitat conservation for C. hydrophilum var. hydrophilum and C. mollis ssp. mollis in essential habitat areas. The draft analysis considers both economic efficiency and distributional effects. In the case of habitat conservation, efficiency effects generally reflect the “opportunity costs” associated with the commitment of resources to comply with habitat protection measures (such as lost economic opportunities associated with restrictions on land use).
        This analysis also addresses how potential economic impacts are likely to be distributed, including an assessment of any local or regional impacts of habitat conservation and the potential effects of conservation activities on small entities and the energy industry. This information can be used by decision-makers to assess whether the effects of the designation might unduly burden a particular group or economic sector. Finally, this draft analysis looks retrospectively at costs that have been incurred since the date these species were listed as endangered (November 20, 1997; 62 FR 61916) and considers those costs that may occur in the 20 years following a designation of critical habitat.
        As stated earlier, we solicit data and comments from the public on this draft economic analysis, as well as on all aspects of the proposal. We may revise the proposal or its supporting documents to incorporate or address new information received during the comment period. In particular, we may exclude an area from critical habitat if we determine that the benefits of excluding the area outweigh the benefits of including the area as critical habitat, provided such exclusion will not result in the extinction of the species.
        Required Determinations—Amended

        In our April 11, 2006 proposed rule (71 FR 18456), we indicated that we would be deferring our determination of compliance with several statutes and Executive Orders until the information concerning potential economic impacts of the designation and potential effects on landowners and stakeholders was available in the draft economic analysis. Those data are now available for our use in making these determinations. In this notice we are affirming the information contained in the proposed rule concerning Executive Order 13132 and Executive Order 12988; the Paperwork Reduction Act; and the President's memorandum of April 29, 1994, “Government-to-Government Relations with Native American Tribal Governments (59 FR 22951). Based on the information made available to us in the draft economic analysis, we are amending our Required Determinations, as provided below, concerning Executive Order 12866 and the Regulatory Flexibility Act, Executive Order 13211, Executive Order 12630, and the Unfunded Mandates Reform Act.
        Regulatory Planning and Review

        In accordance with Executive Order 12866, this document is a significant rule because it may raise novel legal and policy issues. Based on our draft economic analysis of the proposed designation of critical habitat for Cirsium hydrophilum var. hydrophilum and Cordylanthus mollis ssp. mollis, costs related to conservation activities for C. hydrophilum var. hydrophilum and C. mollis ssp. mollis pursuant to sections 4, 7, and 10 of the Act are estimated to be approximately $1.6 million (undiscounted) over 20 years. Discounted future costs are estimated to be $1.4 million over 20 years ($95,002 annually) at a 3 percent discount rate, or $1.2 million over 20 years ($116,722 annually) at a 7 percent discount rate. Therefore, based on our draft economic analysis, it is not anticipated that the proposed designation of critical habitat for C. hydrophilum var. hydrophilum and C. mollis ssp. mollis would result in an annual effect on the economy of $100 million or more or affect the economy in a material way. Due to the timeline for publication in the Federal Register, the Office of Management and Budget (OMB) has not formally reviewed the proposed rule or accompanying economic analysis.
        Further, Executive Order 12866 directs Federal Agencies promulgating regulations to evaluate regulatory alternatives (Office of Management and Budget, Circular A-4, September 17, 2003). Pursuant to Circular A-4, once it has been determined that the Federal regulatory action is appropriate, the agency will then need to consider alternative regulatory approaches. Since the determination of critical habitat is a statutory requirement pursuant to the Act, we must then evaluate alternative regulatory approaches, where feasible, when promulgating a designation of critical habitat.
        In developing our designations of critical habitat, we consider economic impacts, impacts to national security, and other relevant impacts pursuant to section 4(b)(2) of the Act. Based on the discretion allowable under this provision, we may exclude any particular area from the designation of critical habitat providing that the benefits of such exclusion outweigh the benefits of specifying the area as critical habitat and that such exclusion would not result in the extinction of the species. As such, we believe that the evaluation of the inclusion or exclusion of particular areas, or combination thereof, in a designation constitutes our regulatory alternative analysis.
        Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
        Under the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.), as amended by the Small Business Regulatory Enforcement Fairness Act (5 U.S.C. 802(2)) (SBREFA), whenever an agency is required to publish a notice of rulemaking for any proposed or final rule, it must prepare and make available for public comment a regulatory flexibility analysis that describes the effect of the rule on small entities (i.e., small businesses, small organizations, and small government jurisdictions). However, no regulatory flexibility analysis is required if the head of an agency certifies the rule will not have a significant economic impact on a substantial number of small entities. Based upon our draft economic analysis of the proposed designation, we provide our analysis for determining whether the proposed rule would result in a significant economic impact on a substantial number of small entities. Based on comments received, this determination is subject to revision as part of the final rulemaking.
        According to the Small Business Administration (SBA), small entities include small organizations, such as independent nonprofit organizations; small governmental jurisdictions, including school boards and city and town governments that serve fewer than 50,000 residents; and small businesses (13 CFR 121.201). Small businesses include manufacturing and mining concerns with fewer than 500 employees, wholesale trade entities with fewer than 100 employees, retail and service businesses with less than $5 million in annual sales, general and heavy construction businesses with less than $27.5 million in annual business, special trade contractors doing less than $11.5 million in annual business, and agricultural businesses with annual sales less than $750,000. To determine if potential economic impacts to these small entities are significant, we considered the types of activities that might trigger regulatory impacts under this designation as well as types of project modifications that may result. In general, the term “significant economic impact” is meant to apply to a typical small business firm's business operations.

        To determine if the proposed designation of critical habitat for Cirsium hydrophilum
          var. hydrophilum and Cordylanthus mollis ssp. mollis would affect a substantial number of small entities, we considered the number of small entities affected within particular types of economic activities (such as residential and commercial development). We considered each industry or category individually to determine if certification is appropriate. In estimating the numbers of small entities potentially affected, we also considered whether their activities have any Federal involvement; some kinds of activities are unlikely to have any Federal involvement and so will not be affected by the designation of critical habitat. Designation of critical habitat only affects activities conducted, funded, permitted, or authorized by Federal agencies; non-Federal activities are not affected by the designation.
        If this proposed critical habitat designation is made final, Federal agencies must consult with us under section 7 of the Act if their activities may affect designated critical habitat. Consultations to avoid the destruction or adverse modification of critical habitat would be incorporated into the existing consultation process.

        In our draft economic analysis of the proposed critical habitat designation, we evaluated the potential economic effects on small business entities resulting from conservation actions related to the listing of Cirsium hydrophilum var. hydrophilum and Cordylanthus mollis ssp. mollis and proposed designation of its critical habitat. The small business entities that may be affected include a private non-profit land conservation organization and a private ranch. The draft economic assessment does not project significant impacts to either entity because one business has unknown revenue with effects of the proposed habitat designation likely being negligible. The other business would potentially face annualized costs worth only 0.32 percent of annual revenues. As such, we do not anticipate that this proposed regulation will result in a significant impact to a substantial number of small business entities.
        Please refer to our draft economic analysis of the proposed critical habitat designation for a more detailed discussion of potential economic impacts.
        Executive Order 13211—Energy Supply, Distribution, and Use

        On May 18, 2001, the President issued Executive Order 13211 on regulations that significantly affect energy supply, distribution, and use. Executive Order 13211 requires agencies to prepare Statements of Energy Effects when undertaking certain actions. This proposed designation of critical habitat for Cirsium hydrophilum var. hydrophilum and Cordylanthus mollis ssp. mollis is considered a significant regulatory action under Executive Order 12866 due to it potentially raising novel legal and policy issues. OMB has provided guidance for implementing this Executive Order that outlines nine outcomes that may constitute “a significant adverse effect” when compared without the regulatory action under consideration. The draft economic analysis finds that none of these criteria are relevant to this analysis. Thus, based on the information in the draft economic analysis, energy-related impacts associated with C. hydrophilum var. hydrophilum and C. mollis ssp. mollis conservation activities within proposed critical habitat are not expected. As such, the proposed designation of critical habitat is not expected to significantly affect energy supplies, distribution, or use and a Statement of Energy Effects is not required.
        Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)
        In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501), the Service makes the following findings:
        (a) This rule will not produce a Federal mandate. In general, a Federal mandate is a provision in legislation, statute, or regulation that would impose an enforceable duty upon State, local, or Tribal governments, or the private sector, and includes both “Federal intergovernmental mandates” and “Federal private sector mandates.” These terms are defined in 2 U.S.C. 658(5)-(7). “Federal intergovernmental mandate” includes a regulation that “would impose an enforceable duty upon State, local, or tribal governments,” with two exceptions. It excludes “a condition of federal assistance.” It also excludes “a duty arising from participation in a voluntary Federal program,” unless the regulation “relates to a then-existing Federal program under which $500,000,000 or more is provided annually to State, local, and Tribal governments under entitlement authority,” if the provision would “increase the stringency of conditions of assistance” or “place caps upon, or otherwise decrease, the Federal Government's responsibility to provide funding” and the State, local, or tribal governments “lack authority” to adjust accordingly. (At the time of enactment, these entitlement programs were: Medicaid; Aid to Families with Dependent Children work programs; Child Nutrition; Food Stamps; Social Services Block Grants; Vocational Rehabilitation State Grants; Foster Care, Adoption Assistance, and Independent Living; Family Support Welfare Services; and Child Support Enforcement.) “Federal private sector mandate” includes a regulation that “would impose an enforceable duty upon the private sector, except (i) a condition of Federal assistance; or (ii) a duty arising from participation in a voluntary Federal program.”
        The designation of critical habitat does not impose a legally binding duty on non-Federal government entities or private parties. Under the Act, the only regulatory effect is that Federal agencies must ensure that their actions do not destroy or adversely modify critical habitat under section 7. Non-Federal entities that receive Federal funding, assistance, permits, or otherwise require approval or authorization from a Federal agency for an action may be indirectly impacted by the designation of critical habitat. However, the legally binding duty to avoid destruction or adverse modification of critical habitat rests squarely on the Federal agency. Furthermore, to the extent that non-Federal entities are indirectly impacted because they receive Federal assistance or participate in a voluntary Federal aid program, the Unfunded Mandates Reform Act would not apply, nor would critical habitat shift the costs of the large entitlement programs listed above on to State governments.

        (b) As discussed in the draft economic analysis of the proposed designation of critical habitat for Cirsium hydrophilum var. hydrophilum and Cordylanthus mollis ssp. mollis, the impacts on nonprofits and small governments are expected to be small. There is no record of consultations between the Service and any of these governments since C. hydrophilum var. hydrophilum and C. mollis ssp. mollis were listed as endangered on November 20, 1997 (62 FR 61916). It is likely that small governments involved with developments and infrastructure projects will be interested parties or involved with projects involving section 7 consultations for C. hydrophilum var. hydrophilum and C. mollis ssp. mollis within their jurisdictional areas. Any costs associated with this activity are likely to represent a small portion of a local government's budget. Consequently, we do not believe that the designation of critical habitat for C. hydrophilum var. hydrophilum and C. mollis ssp. mollis will significantly or uniquely affect these small governmental entities. As such, a Small Government Agency Plan is not required.
        Executive Order 12630—Takings

        In accordance with Executive Order 12630 (“Government Actions and Interference with Constitutionally Protected Private Property Rights”), we have analyzed the potential takings implications of proposing critical habitat for Cirsium hydrophilum var. hydrophilum and Cordylanthus mollis ssp. mollis in a takings implications assessment. The takings implications assessment concludes that this proposed designation of critical habitat for C. hydrophilum var. hydrophilum and C. mollis ssp. mollis does not pose significant takings implications.
        Author
        The primary authors of this notice are the staff of the Sacramento Fish and Wildlife Office.
        Authority

        The authority for this action is the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.).

           Dated: November 13, 2006.
          Todd Willens,
          Acting Assistant Secretary for Fish and Wildlife and Parks.

       [FR Doc. E6-19572 Filed 11-17-06; 8:45 am]
      BILLING CODE 4310-55-P


        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Part 216
        [Docket No. 010823214-1214-01; I.D. 080801A]
        RIN 0648-AP47
        Taking and Importing Marine Mammals; Taking Marine Mammals Incidental to Rocket Launches at Vandenberg Air Force Base, CA

          AGENCY:
          National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

          ACTION:
          Proposed rule; request for comment; proposed modification to current regulation.

          SUMMARY:
          NMFS has received a request from the 30th Space Wing, U.S. Air Force for a modification to the regulations that govern, and the annual Letter of Authorization (LOA) that authorizes the take of small numbers of marine mammals incidental to missile and rocket launches, aircraft flight test operations, and helicopter operations at Vandenberg Air Force Base, CA (VAFB).  The 30th Space Wing requests that the current monitoring requirements be reduced so that biological monitoring is required only during the Pacific harbor seal pupping season (March 1 to June 30).  By this document, NMFS is proposing to amend the regulations governing the take of marine mammals incidental to rocket launches at VAFB. NMFS, in issuing the regulation to which a modification is sought previously determined that rocket launches at VAFB would have a negligible impact on the affected species and stocks of marine mammals. In order to make the requested amendment to the regulation, NMFS must determine that the monitoring program at VAFB and the resultant data from pre- and post-launch marine mammal observations have effectively shown that the effects of rocket launch activities are negligible. NMFS invites comments on this proposed modification to the regulations.

          DATES:
          Comments and information must be received no later than October 15, 2001.

          ADDRESSES:
          Comments on the proposed amendment should be addressed to Donna Wieting, Chief, Marine Mammal Conservation Division, Office of Protected Resources, NMFS, 1315 East-West Highway, Silver Spring, MD  20910-3225.  Comments will not be accepted if submitted via e-mail or Internet.  A copy of the modification request and SRS Technology's technical reports referenced in this document may be obtained by writing to this address or by telephoning one of the contacts listed here.

          FOR FURTHER INFORMATION CONTACT:
          Simona P. Roberts, (301) 713-2322, ext 106 or Christina Fahy, (562) 980-4023.

        SUPPLEMENTARY INFORMATION:
        Background

        Section 101 (a)(5)(A) of the Marine Mammal Protection Act (MMPA) (16 U.S.C. 1361 et seq.) directs the Secretary of Commerce to allow, upon request, the incidental, but not intentional taking of small numbers 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 governing the taking are issued.  Effective January 26, 1996, by Department Delegation Order 10-15, the Secretary of Commerce (Secretary) delegated authority to perform the functions vested in the Secretary as prescribed by the MMPA to the Administrator of the National Oceanic and Atmospheric Administration.  On December 17, 1990, under NOAA Administrative Order 205-11, 7.01, the Under Secretary for Oceans and Atmosphere delegated authority to sign material for publication in the Federal Register to the Assistant Administrator for Fisheries, NOAA.
        Permission for a take may be granted if NMFS finds that the taking will have no more than 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 that the permissible methods of taking and requirements pertaining to the monitoring and reporting of such taking are set forth.  As new information is developed, through monitoring, reporting, or research, NMFS may modify the regulations governing the take, in whole or in part, after notice and opportunity for public review.

        Regulations governing the taking of seals and sea lions incidental to missile and rocket launches, aircraft flight test operations, and helicopter operations at VAFB were published on March 1, 1999 (64 FR 9925), and remain in effect until December 31, 2003.
        Summary of Request

        On May 17, 2001, NMFS received a request from the 30th Space Wing for modification to the monitoring requirements of the 5-year programmatic regulations governing the incidental take of marine mammals during rocket launch operations at VAFB (50 CFR 216.120-128).  The requested modification would reduce the current requirement to perform biological monitoring during all space vehicle launches at VAFB to only those space vehicle launches at VAFB during the Pacific harbor seal (Phoca vitulina richardsi) pupping season (March 1 to June 30).  This request is based on a scientific research program and the bioacoustic monitoring of space vehicle launches conducted from 1997 through 2001 at VAFB (SRS Technologies, 2001).  During the pupping season, biological monitoring remains important in verifying that female harbor seals spend the necessary time on the haul-out establishing the female-neonate bond, including nursing of their pups.  Although harbor seal numbers are highest during molting (May through July), NMFS is not proposing biological monitoring during the molting season because research and monitoring over the last 4 years has shown that molting Pacific harbor seals entering the water because of a disturbance are not adversely affected in their ability to molt and do not become subject to thermoregulatory stress.
        Current Monitoring Requirements and Requested Change
        According to 50 CFR 216.125, LOAs that authorize the take of marine mammals incidental to space vehicle and test flight activities must designate qualified on-site individuals to conduct the following monitoring activities: (1) Observation of harbor seal, elephant seal, and sea lion activity in the vicinity of the rookery nearest the launch platform or, in the absence of pinnipeds at that location, at another nearby haul-out, for at least 72 hours prior to any planned launch and continue for a period of time not less than 48 hours subsequent to launching; (2) monitoring haul-out sites on the Northern Channel Islands if it is determined during consultation with NMFS that a sonic boom could impact those areas; (3) investigation of the potential for spontaneous abortion, disruption of effective female-neonate bonding, and other reproductive dysfunction; (4) supplemental observation on VAFB and on the Northern Channel Islands, if indicated, with video-recording of mother-pup seal responses for daylight launches during the pupping season; and (5) conducting acoustic measurements of those launch vehicles not having sound pressure level measurements made previously.
        The 30th Space Wing's request is to modify the first monitoring activity, observation of harbor seal, elephant seal, and sea lion activity in the vicinity of the rookery nearest the launch platform on VAFB, to only require observations during the March 1 through June 30 harbor seal pupping season at VAFB.
        Potential Effect of Modification to Monitoring Requirements on Pacific Harbor Seals at VAFB
        Since modification of regulations, in whole or in part, must account for new information that has been collected through monitoring, reporting, or research (see 50 CFR 216.105 (c)), this preamble outlines the 30th Space Wing's research and monitoring results to date.  Based on the scientific research program and bioacoustic monitoring of space vehicle launches conducted from 1997 through 2001 at VAFB, the 30th Space Wing asserts that the proposed modification to the monitoring requirements would not alter the negligible impact determination made by NMFS during the rule making (64 FR 9925, March 1, 1999).  Rather, results of the 30th Space Wing's monitoring and research programs verify that the impacts of rocket launches have had a negligible impact on the harbor seals at VAFB.  To verify the negligible impact determination made by NMFS as a prerequisite issuance of the final rule, the monitoring and research programs for VAFB were designed to detect changes in population parameters that indicate the overall condition of the potentially affected populations.
        Results from the monitoring and research program include an analysis of indicators of population health at the regional and site-specific level.  These indicators include: trends in abundance, pup production and mortality, daily and seasonal haul-out behaviors, measured sound exposure levels from space launch vehicles, behavioral response of Pacific harbor seals to launch noise, and Pacific harbor seal auditory brainstem response (ABR) measurements.  For a more detailed account of the 30th Space Wing's research and monitoring programs and analysis of results, see SRS Technologies (2001).
        Pacific Harbor Seal Scientific Research Program at VAFB
        Data from the scientific research program conducted from 1997 through 2001 shows that the harbor seal population (including pups) at VAFB is increasing and doing as well or better than other harbor seal populations in California.  The Pacific harbor seal is the main pinniped species found along the coastline of VAFB; there are 3 main harbor seal haul-out sites on the Base.
        Trends in Abundance

        The most recent estimate of the Pacific harbor seal population in California is 30,293 seals (Forney et al., 2000).  From 1979 to 1995, the California population increased at an estimated annual rate of 5.6 percent.  The total population of harbor seals at VAFB is estimated to be 1,040 (775 on south VAFB and 265 on north VAFB), where the telemetry data for seals was used to correct for seals that were at sea during the census (SRS Technologies 2001).  The harbor seal population has been increasing since 1997 at an annual rate of 12.6 percent.  During this period, 5 to 7 space vehicle launches were conducted per year.  Recent information by several researchers suggests that harbor seals are only decreasing in areas (e.g., San Miguel Island, California) where they are in competition for haul-out space with California sea lions (Zalophus californianus) and northern elephant seals (Mirounga angustirostris).  California sea lions and northern elephant seals rarely haul-out at VAFB; therefore, competition for haul-out space should not be a factor in growth of the harbor seal population at VAFB.
        Pup Production and Mortality
        Annual harbor seal pup production at VAFB has increased by 5.3 percent annually.  The only decrease in pup production occurred during the 1998 El Niño season when there was a 13.6 percent decrease from the previous year.  In contrast to VAFB haul-out sites, pup production at Point Conception, CA (control site for the VAFB research program located 25 km south of the south VAFB haul-out site) showed an annual increase of 2.9 percent.  This smaller percentage in annual pup production may be due to the fact that Point Conception has a limited area where females and pups can haul-out without being harassed by other seals or exposed to high tides and swells.  There are more haul-out areas for females with pups at VAFB; therefore, only El Niño type disturbance should affect pup production at VAFB.

        There are no documented occurrences of premature pupping at VAFB.  In addition, the rate of pup mortality is low (0.6 pups per year), with none of the mortalities associated with any of the launch activities.  Because the rough terrain along the VAFB coastline makes seal captures difficult, only 15 seal pups have been tagged; it has been difficult to estimate the long-term survival and recruitment rate of these pups.  Based on telemetry data from the 15 tagged individuals and the behavior of pups at other sites, the 30th Space Wing estimates that approximately 54 percent of pups continue to haul-out at VAFB after weaning.  There have been no tag returns of dead pups from VAFB, but some pups have been sighted up to 25 km away from the natal haul-out site.  This suggests that mortality is low for weaned pups and that up to 35 percent of pups born at VAFB may migrate to other haul-out sites.
        Daily and Seasonal Haul-out Behavior
        At south VAFB, the daily haul-out behavior of harbor seals is dependent on time of day rather than tide height.  The highest number of seals haul-out at south VAFB between 1100 through 1700 hours.  At north VAFB haul-out sites, tide has a greater influence on the daily haul-out behavior of seals.  Part of the reason for the tidal influence at north VAFB is the coastline's topography, which consists of low lying rocky areas that are substantially covered during high tides.  In addition, haul-out behavior at all sites may be influenced by environmental factors such as high swell, tide height, and wind. The combination of all three may prevent seals from hauling out at most sites. The number of seals hauled out at any site can vary greatly from day to day based on environmental conditions.
        Several factors affect the seasonal haul-out behavior of harbor seals including environmental conditions, reproduction, and molting.  Harbor seal numbers at VAFB begin to increase in March during the pupping season (March to June) as females spend more time on shore nursing pups.  The population is at its highest during the molt which occurs from May through July.  During the molting season, tagged harbor seals at VAFB increased their time spent on shore by 22.4 percent; however, all seals continued to make daily trips to sea to forage.  Molting harbor seals entering the water because of a disturbance by a space vehicle launch or another source would not be adversely affected in their ability to molt and would not endure thermoregulatory stress.  During pupping and molting season, harbor seals at the south VAFB sites expand into haul-out areas that are not used the rest of the year.  The number of seals hauled out begins to decrease in August after the molt is complete and reaches the lowest number in late fall and early winter.
        Pacific Harbor Seal Bioacoustic Monitoring at VAFB
        Data from the bioacoustic monitoring of space vehicle launches conducted from 1997 through 2001 shows that haul-out behavior appears to be unaffected by launch operations, and there has been no temporary or permanent threshold shifts evidenced as a result of launch noise.
        The types of sounds discussed in this document are airborne and impulsive.  For this reason, the document references both pressure and energy measurements for sound levels.  For pressure, the sound pressure level (SPL) is described in terms of decibels (dB) re micro-Pascal (micro-Pa), and for energy, the sound exposure level (SEL) is described in terms of dB re micro-Pa2 -second.  In other words, SEL is the squared instantaneous sound pressure over a specified time interval, where the sound pressure is averaged over 5 percent to 95 percent of the duration of the sound (in this case, one second).  Airborne noise measurements are usually expressed relative to a reference pressure of 20 micro-Pa, which is 26 dB above the underwater sound pressure reference of 1 micro-Pa. However, the conversion from air to water intensities is more involved (Buck, 1995) and is beyond the scope of this document.
        In order to obtain details on the launch noise reaching harbor seals on VAFB, acoustic measurements were collected via two independent systems.  The first system was designed to measure the low frequency sound associated with rocket launches. The second system was designed to measure background noise levels, ambient noise levels, and sound events that exceed a pre-set minimum sound level.
        Measured Sound Exposure Levels from Space Launch Vehicles
        To study the effect of noise on wildlife, the sound under study is typically measured using an A-weighted filter.  A-weighting is a standard filter used in acoustics that approximates human hearing.  However, because most animals do not have hearing similar to humans, A-weighting does not accurately represent sounds as heard by non-human mammals (SRS Technologies, 2001).  Several researchers (Mohl, 1968; Terhune, 1991; Terhune and Turnbull, 1995; Kastak and Schusterman, 1998) have measured the in-air hearing in harbor seals.  At 2000 hertz (Hz), harbor seals were found to have hearing sensitivities averaging around 30 dB.  In contrast, the quietest sound a human can hear at 2000 Hz registers at -1 dB (Sivian and White, 1933).  At 2000 Hz, A-weighting adds 1.2 dB to the sound being analyzed; therefore, A-weighting does not accurately represent sounds as heard by harbor seals.  To gain a better understanding of how launch noise is perceived by harbor seals, SRS Technologies created a frequency-weighting filter, similar to what A-weighting is for humans, based on the in-air hearing ability of harbor seals (SRS Technologies, 2001).
        Acoustical measurements have been collected and analyzed for 21 space vehicle launches of 7 different types of vehicles using both A-weighted and harbor-seal weighted filters.  The average measurements are shown in Table 1:

            Table 1

            Type
            Distance from Haul-out (km/mi)
            Average A-weighted Sound Exposure Level (dB)
            Harbor seal-weighted Sound Exposure Level (dB)

            Athena
            2.8/1.7
            107.5
            68.3

            Minotaur
            2.3/1.4
            106.2
            67.3

            Titan IV
            8.5/5.3
            100.2
            58.9

            Taurus
            0.55/0.34
            125.2
            89.8

            Delta II
            2.0/1.2
            114.9
            78.6

            Minuteman III
            15.6/9.7
            88.7
            42.3

            Atlas
            11.0/6.8
            86.1
            47.3

        Behavioral Response of Pacific Harbor Seals to Launch Noise
        During the biological monitoring at VAFB, the response of harbor seals to rocket launch noise varied depending on the intensity of noise and the age of the seal.  When launch noise was below an A-weighted sound exposure level of 100 decibels (dBA)(re 20 micro-Pa2-second), observations showed that not all seals fled the haul-out site and those that remained were exclusively adults.  Given the high degree of site fidelity among adult harbor seals, it is likely that those seals that remained on the haul-out site during rocket launches had previously been exposed to launches.  It is possible that adult seals have become acclimated to the launch noise and react differently than younger inexperienced seals.  Of the 20 seals (adult and younger) tagged at VAFB, 8 (40 percent) were exposed to at least one launch disturbance and continued to return to the same haul-out site.  Three of these tagged seals were exposed to 2 or more launch disturbances.  Six (75 percent) of the tagged seals exposed to launch noise appeared to remain in the water adjacent to the haul-out site and then returned to shore within 2 to 22 minutes after the launch.  The 2 tagged seals that left the haul-out site area after the launch had been on shore for at least 6 hours subsequent to the launch and returned to the haul-out site in 24 hours.
        ABR Measurements
        In order to further determine if harbor seals experience any change in their hearing sensitivity as a result of launch noise, the acoustic contractor conducted ABR testing on 10 harbor seals prior to and after the launches of 3 Titan IV rockets, a vehicle type with one of the loudest harbor seal-weighted SELs (see table above).  Detailed analysis of the ABR measurements showed that there were no detectable changes in the seals' hearing sensitivity as a result of the launch noise.  However, the 2 to 3.5 hour delay in ABR testing post-launch could mean that the seals had recovered from a temporary threshold shift (TTS) before the testing could begin. However, as there were no detectable changes in the hearing sensitivity of these animals when they were tested after the delay, the 30th Space Wing concludes, with confidence, that the animals did not have permanent hearing changes due to exposure to the launch noise from the Titan IV rockets.
        Preliminary Conclusions
        As outlined in this preamble, results of on-going, long-term monitoring efforts designed to track trends in haul-out patterns and seal distribution at VAFB show that the harbor seal population at VAFB is increasing and doing as well or better than other harbor seal populations in California. Acoustic measurements in conjunction with biological monitoring of haul-out sites and tagged seals over these same 4 years, suggest that the haul-out behavior of harbor seals is unaffected by launch operations.  This data also provides conclusive evidence that no permanent hearing damage has resulted from space vehicle launches at VAFB. This new information obtained through monitoring, reporting, and research verifies NMFS' previous negligible impact determination by showing that the level, manner, and effects of the marine mammal takes are so small in number that they are inconsequential to the abundance, distribution, and productivity of marine mammal populations in California (Swartz and Hofman, 1991).  Therefore, NMFS has preliminarily concluded that the impact of amending the current regulations to require monitoring observations only during the harbor seal pupping season at VAFB is consi Information Solicited stent with NMFS' March 1, 1999 negligible impact determination (64 FR 9925).
        Information Solicited

        NMFS requests interested persons to submit comments, information, and suggestions concerning the request and the structure and content of the proposed amendment to regulations. Because this document contains only a summary of the information provided in the documents available to the public (see ADDRESSES), commenters are requested to review these documents before submitting comments.
        Classification
        This action is not significant for purposes of Executive Order 12866.
        The Assistant General Counsel for Legislation and Regulation of the Department of Commerce certified to the Small Business Administration, when the original rule was proposed in 1998 (63 FR 39055, July 21, 1998), that, if adopted, the rule would not have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act. The rule only affects the U.S. Air Force, large defense companies, and an undetermined number of contractors providing services related to the launches, including the monitoring of launch impacts on marine mammals. Some of the affected contractors may be small businesses. The economic impact on these small businesses depends on the award of contracts for such services. The economic impact cannot be determined with certainty, but will either be beneficial or have no effect, directly or indirectly, on small businesses.  Because of this classification, a regulatory flexibility analysis was neither required nor prepared.  This action does not alter those conclusions.
        National Environmental Policy Act (NEPA)
        The U.S. Air Force prepared an Environmental Assessment (EA) and issued a Finding of No Significant Impact, as part of its request for a small take authorization in 1997. This EA contains information incorporated by reference in the application that is necessary for determining whether the activities proposed for receiving small take authorizations are having a negligible impact on affected marine mammal stocks.  NMFS adopted the U.S. Air Force EA as its own as provided by 40 CFR 1506.3. In the final rule for this activity (64 FR 9925, March 1, 1999), NMFS found that the issuance of regulations and LOAs to the Air Force would not result in a significant environmental impact on the human environment and that it would be unnecessary to either prepare its own NEPA documentation, or to recirculate the Air Force EA for additional comments.  This action is within the scope of the EA and does not alter its conclusions.

          List of Subjects in 50 CFR Part 216
          Exports, Fish, Imports, Indians, Labeling, Marine mammals, Penalties, Reporting and recordkeeping requirements, Seafood, Transportation.

          For the reasons discussed in the preamble, 50 CFR part 216 is proposed to be 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., unless otherwise noted.

          2. In § 216.125, paragraph (b) (1) is revised to read as follows:

            § 216.125
            Requirements for monitoring and reporting.

          (b) * * *

          (1) Conduct observations on harbor seal, elephant seal, and sea lion activity in the vicinity of the rookery nearest the launch platform or, in the absence of pinnipeds at that location, at another nearby haulout, for at least 72 hours prior to any planned launch occurring during the harbor seal pupping season (1 March through 30 June) and continue for a period of time not less than 48 hours subsequent to launching.

          Dated: September 7, 2001.
          John Oliver,
          Acting Assistant Administrator for Fisheries, National Marine Fisheries Service.

      [FR Doc. 01-23038  Filed 9-13-01; 8:45 am]
      BILLING CODE  3510-22-S