Proposed Rules. Final rule

24,005 words·~109 min read·/register/2006/06/21/06-5567

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

BILLING CODE 3410-11-P; 4310-55-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Parts 150, 152, 154, 158, 159, 168, 170, 172, 174, 178, and 180 [EPA-HQ-OPP-2006-0403; FRL-8070-7] Technical Amendments; Change of Address for the Office of Pesticide Programs AGENCY: Environmental Protection Agency (EPA). ACTION: Final rule. SUMMARY: EPA's Office of Pesticide Programs

(OPP)has relocated to new offices in Arlington, VA. OPP's official mailing address has not changed; however, the courier and in-person delivery address, the docket address, and the internal mail codes used by OPP have changed. EPA is revising references throughout its pesticide regulations to reflect these address changes. DATES: This final rule is effective on June 21, 2006. ADDRESSES: EPA has established a docket for this action under docket identification

(ID)number EPA-HQ-OPP-2006-0403. All documents in the docket are listed in the regulations.gov website. Although listed in the index, some information is not publicly available, e.g., Confidential Business Information

(CBI)or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available in the electronic docket at *http://www.regulations.gov* , or, if only available in hard copy, at the OPP Regulatory Public Docket in Rm. S-4400, One Potomac Yard (South Bldg.), 2777 S. Crystal Dr., Arlington, VA 22202. The Docket Facility is open from 8:30 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Docket Facility is

(703)305-5805. FOR FURTHER INFORMATION CONTACT: Kathryn Boyle, Field and External Affairs Division (7506P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone number:

(703)305-6304; fax number:

(703)305-5884; e-mail address: *boyle.kathryn@epa.gov* . SUPPLEMENTARY INFORMATION: I. General Information A. Does this Action Apply to Me? You may be potentially affected by this action if you submit applications or other pesticide related information to OPP. Potentially affected entities may include, but are not limited to: • Pesticide manufacturing (NAICS code 32532). This listing is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in this unit could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether this action might apply to certain entities. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under FOR FURTHER INFORMATION CONTACT . B. How Can I Access Electronic Copies of this Document? In addition to accessing an electronic copy of this **Federal Register** document through the electronic docket at *http://www.regulations.gov* , you may access this **Federal Register** document electronically through the EPA Internet under the “ **Federal Register** ” listings at *http://www.epa.gov/fedrgstr* . You may also access a frequently updated electronic version of 40 CFR parts 150, 152, 154, 158, 159, 168, 170, 172, 174, 178, and 180 through the Government Printing Office's pilot e-CFR site at *http://www.gpoaccess.gov/ecfr* . II. Background A. What Action is the Agency Taking? OPP has relocated to new offices in Arlington, VA. This move was announced in the **Federal Register** of April 19, 2006 (71 FR 20089) (FRL-8065-6). Detailed information on how to contact OPP at the new location was recently provided to the public in Pesticide Registration

(PR)Notice 2006-1 (April 12, 2006). PR Notice 2006-1 contains the mail codes which are to be used with submissions to OPP and is available on the Agency's website at *http://www.epa.gov/PR_Notices/pr2006-1.pdf* . The Agency is now amending its pesticide regulations in parts 150-189 of the Code of Federal Regulations

(CFR)to change the manner in which the addresses are referenced. Currently, there are over 20 references in 40 CFR parts 150-189 to either an address or docket location. Rather than maintain and have to update multiple address references, the Agency is creating a new § 150.17 to contain the U.S. Postal Service mailing address, the address for hand/courier delivery, and the location of the OPP Regulatory Public Docket. This means that individual addresses scattered throughout the CFR are being replaced by a reference to § 150.17. B. What is the Agency's Authority for Taking this Action? EPA is issuing this document under its general rulemaking authority, Reorganization Plan No. 3 of 1970 (5 U.S.C. App.). C. Why is EPA Issuing this as a Final Rule? Section 553 of the Administrative Procedure Act (APA), 5 U.S.C. 553(b)(3)(A), provides that an agency may issue rules of agency organization, procedure, and practice without first giving notice. This address change regulation qualifies as a rule of organization, procedure, or practice. Additionally, section 553 of the APA, 5 U.S.C. 553(b)(3)(B), provides that, when an agency for good cause finds that notice and public procedure are impracticable, unnecessary or contrary to the public interest, the agency may issue a rule without providing notice and an opportunity for public comment. EPA has determined that there is good cause for making this rule final without prior proposal and opportunity for comment because the actions taken in this final rule represent technical amendments to the regulations and do not involve substantive Agency action. Moreover, maintaining incorrect information on how to submit documents to the Agency may have legal consequences, and may increase costs to the regulated industry. For these reasons, notice and public procedure are unnecessary. EPA finds that this constitutes good cause under 5 U.S.C. 553(b)(3)(B). III. Statutory and Executive Order Reviews This final rule implements technical amendments to 40 CFR chapter I, subchapter E, to reflect the new OPP address. It does not otherwise impose or amend any requirements. As such, the Office of Management and Budget

(OMB)has determined that a technical amendment is not a “significant regulatory action” subject to review by OMB under Executive Order 12866, entitled *Regulatory Planning and Review* (58 FR 51735, October 4, 1993). Because this rule has been exempted from review under Executive Order 12866 due to its lack of significance, this rule is not subject to Executive Order 13211, *Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use* (66 FR 28355, May 22, 2001). This final rule does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 *et seq* ., or impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act of 1995

(UMRA)(Public Law 104-4). Nor does it require any special considerations under Executive Order 12898, entitled *Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations* (59 FR 7629, February 16, 1994); or OMB review or any Agency action under Executive Order 13045, entitled *Protection of Children from Environmental Health Risks and Safety Risks* (62 FR 19885, April 23, 1997). This action does not involve any technical standards that require the Agency's consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 note). Since this action is not subject to notice-and-comment requirements under the APA or any other statute, this action is not subject to the requirements of the Regulatory Flexibility Act

(RFA)(5 U.S.C. 601 *et seq* .). In addition, the Agency has determined that this action will not have a substantial direct effect on States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132, entitled *Federalism* (64 FR 43255, August 10, 1999). The Agency has determined that this rule does not have any substantial direct effects on one or more Indian tribes, on the relationship between the Federal Government and the Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes as described in Executive Order 13175, entitled *Consultation and Coordination with Indian Tribal Governments* (65 FR 67249, November 6, 2000). Thus, Executive Order 13132 and 13175 do not apply to this rule. IV. Congressional Review Act Yes. The Congressional Review Act

(CRA)(5 U.S.C. 801 *et seq* .) generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. Section 808 of CRA allows the issuing agency to make a rule effective sooner than otherwise provided by the CRA, if the agency makes a good cause finding that notice and public procedure is impracticable, unnecessary, or contrary to the public interest. This determination must be supported by a brief statement (5 U.S.C. 808(2)). As stated previously, EPA has made such a good cause finding, including the reasons therefore, and established an effective date of June 21, 2006. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the **Federal Register** . This action is not a “major rule” as defined by 5 U.S.C. 804(2). List of Subjects in 40 CFR Parts 150, 152, 154, 158, 159, 168, 170, 172, 174, 178, 180 Environmental protection, Administrative practice and procedure, Advertising, Agricultural commodities, Confidential business information, Exports, Food additives, Intergovernmental relations, Labeling, Occupational safety and health, Pesticides and pests, Reporting and recordkeeping requirements, Research. Dated: June 12, 2006. Susan B. Hazen, Acting Assistant Administrator, Office of Prevention, Pesticides and Toxic Substances. Therefore, 40 CFR chapter I is amended as follows: 1. Part 150, consisting of § 150.17, is added to subchapter E to read as follows: PART 150—GENERAL Authority: Reorganization Plan No. 3 of 1970 (5 U.S.C. App.). § 150.17 Addresses for applications and correspondence. The official addresses for all submissions directed to the Office of Pesticide Programs

(OPP)of the Environmental Protection Agency are as follows:

(a)*United States Postal Service mailing address* . Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington DC 20460-0001.

(b)*Hand/courier delivery address* . Office of Pesticide Programs, Environmental Protection Agency, 2777 S. Crystal Dr., Arlington, VA 22202-4501.

(c)*OPP Regulatory Public Docket address* . OPP Regulatory Public Docket is physically located in Rm. S-4400, One Potomac Yard (South Bldg.), 2777 S. Crystal Dr., Arlington, VA 22202-4501. This is not a mailing address. PART 152—[AMENDED] 2. The authority citation for part 152 continues to read as follows: Authority: 7 U.S.C. 136-136y; Subpart U is also issued under 31 U.S.C. 9701. 3. In § 152.25, revise paragraph (f)(2) to read as follows: § 152.25 Exemptions for pesticides of a character not requiring FIFRA regulation.

(f)* * *

(2)*Permitted inerts* . A pesticide product exempt under paragraph (f)(1) of this section may only include inert ingredients listed in the most current List 4A. This list is updated periodically. The most current list may be obtained by contacting the Registration Division at the appropriate address as set forth in 40 CFR 150.17(a) or (b). 4. Section152.55 is revised to read as follows: § 152.55 Where to send applications and correspondence. Applications and correspondence relating to registration should be sent to the Office of Pesticide Programs' Document Processing Desk at the appropriate address as set forth in 40 CFR 150.17(a) or (b). 5. In § 152.414, revise paragraph (a)(1) and the fourth sentence in (a)(2) to read as follows: § 152.414 Procedures.

(a)* * *

(1)A request for a waiver must be submitted in writing at the time the application is submitted to the Office of Pesticide Programs' Document Processing Desk at the appropriate address as set forth in 40 CFR 150.17(a) or (b).

(2)* * * Since the actual fee is submitted to an address different than the one to which the waiver request is submitted, a copy of the payment document must be submitted with the waiver request that is submitted to the Office of Pesticide Programs' Document Processing Desk as described in paragraph (a)(1) of this section. * * * PART 154—[AMENDED] 6. The authority citation for part 154 continues to read as follows: Authority: 15 U.S.C. 136a, d, and w. 7. In § 154.15, revise paragraph (f)(1)(ii) to read as follows: § 154.15 Docket for the Special Review.

(f)* * *

(1)* * *

(ii)The docket and index will be available at the OPP Regulatory Public Docket located as set forth in 40 CFR 150.17(c). PART 158—[AMENDED] 8. The authority citation for part 158 continues to read as follows: Authority: 7 U.S.C. 136-136y. 9. In § 158.45, revise paragraph

(d)to read as follows: § 158.45 Waivers.

(d)*Availability of waiver decisions* . Agency decisions under this section granting waiver requests will be available to the public at the OPP Regulatory Public Docket located as set forth in 40 CFR 150.17(c). Any person may obtain a copy of any waiver decision by written request in the manner set forth in 40 CFR part 2. PART 159—[AMENDED] 10. The authority citation for part 159 continues to read as follows: Authority: 7 U.S.C. 136-136y. 11. In § 159.156, remove paragraphs

(a)and (b), redesignate paragraphs

(c)through

(k)as paragraphs

(a)through (i), and revise the section's introductory text to read as follows: § 159.156 How information must be submitted. A submission under FIFRA section 6(a)(2) must be delivered to the Office of Pesticide Programs' Document Processing Desk at the appropriate address as set forth in 40 CFR 150.17(a) or (b). PART 168—[AMENDED] 12. The authority citation for part 168 continues to read as follows: Authority: 7 U.S.C. 136-136y. 13. In § 168.65, revise the last sentence in the parenthetical in paragraph (b)(1)(iii)(A) *(2)(i)* and the parenthetical in paragraph (b)(1)(iii)(A) *(2)(iii)* to read as follows: § 168.65 Pesticide export label and labeling requirements.

(b)* * *

(1)* * *

(iii)* * *

(A)* * * *(2)* * * * *(i)* * * * The classification of inerts is explained in EPA's Policy Statement on Inert Ingredients in Pesticide Products, which can be obtained at the OPP Regulatory Public Docket located as set forth in 40 CFR 150.17(c). *(iii)* * * * (See “Food Fragrances in Pesticide Formulations,” EPA's Office of Pesticide Programs Policy and Criteria Notice number 2155.1, November 20, 1975, which can be obtained at the OPP Regulatory Public Docket located as set forth in 40 CFR 150.17(c).) 14. In § 168.75, revise the last sentence in paragraph (c)(2)(i)(D), paragraph (c)(2)(ii)(D), and paragraph (c)(2)(ii)(F) to read as follows: § 168.75 Procedures for exporting unregistered pesticides—purchaser acknowledgement statements.

(c)* * *

(2)* * *

(i)* * *

(D)* * * This information must be transmitted to the Office of Pesticide Programs' Document Processing Desk at the appropriate address as set forth in 40 CFR 150.17(a) or (b), Attention: Purchaser Acknowledgement Statement.

(ii)* * *

(F)* * * The annual summary shall be sent to the Office of Pesticide Programs' Document Processing Desk at the appropriate address as set forth in 40 CFR 150.17(a) or (b), Attention: Annual Summary of Exports. PART 170—[AMENDED] 15. The authority citation for part 170 continues to read as follows: Authority: 7 U.S.C. 136w. 16. In § 170.112, revise the introductory text of paragraph (e)(1) to read as follows: § 170.112 Entry restrictions.

(e)* * *

(1)*Exception requiring agency approval* . A request for an exception must be submitted to the Office of Pesticide Programs' Document Processing Desk at the appropriate address as set forth in 40 CFR 150.17(a) or

(b)and must be accompanied by two copies of the following information: PART 172—[AMENDED] 17. The authority citation for part 172 continues to read as follows: Authority: 7 U.S.C. 136c, 136w. Section 172.4 is also issued under 31 U.S.C. 9701. 18. In § 172.3, revise the fourth sentence of paragraph

(d)to read as follows: § 172.3 Scope of requirement.

(d)* * * Persons intending to conduct tests who are uncertain whether the testing may be conducted without a permit may submit a request for determination to the Office of Pesticide Programs' Document Processing Desk at the appropriate address as set forth in 40 CFR 150.17(a) or (b). * * * 19. In § 172.4, revise paragraph

(a)to read as follows: § 172.4 Applications.

(a)*Time for submission* . An application or request for amendment to an existing permit shall be submitted as far as possible in advance of the intended date of shipment or use to the Office of Pesticide Programs' Document Processing Desk at the appropriate address as set forth in 40 CFR 150.17(a) or (b). 20. In § 172.46, revise paragraph

(b)to read as follows: § 172.46 Submission of a notification.

(b)*Where to submit a notification* . A notification shall be submitted to the Office of Pesticide Programs' Document Processing Desk at the appropriate address as set forth in 40 CFR 150.17(a) or (b), Attention: Biotechnology Notification Review. 21. In § 172.52, revise paragraph (b)(2) to read as follows: § 172.52 Notification exemption process.

(b)* * *

(2)*Where to submit a petition* . All petitions shall be submitted to the Office of Pesticide Programs' Document Processing Desk at the appropriate address as set forth in 40 CFR 150.17(a) or (b). PART 174—[AMENDED] 22. The authority citation for part 174 continues to read as follows: Authority: 7 U.S.C. 136-136y; 21 U.S.C. 346a and 371. 23. In § 174.71, revise paragraph

(d)to read as follows: § 174.71 Submission of information regarding adverse effects.

(d)Reports and questions should be submitted to the Office of Pesticide Programs' Document Processing Desk at the appropriate address as set forth in 40 CFR 150.17(a) or (b). PART 178—[AMENDED] 24. The authority citation for part 178 continues to read as follows: Authority: 21 U.S.C. 346a, 371(a); Reorg. Plan No. 3 of 1970. 25. In § 178.25, revise paragraphs

(1)and (b)(2) to read as follows: § 178.25 Form and manner of submission of objections.

(b)* * *

(1)Mailed submissions should be addressed to: Office of the Hearing Clerk (1900L), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001.

(2)For hand/courier delivery the Office of the Hearing Clerk is located at Suite 350, 1099 14 th St., NW., Washington, DC 20005. PART 180—[AMENDED] 26. The authority citation for part 180 continues to read as follows: Authority: 21 U.S.C. 321(q), 346a and 371. 27. In § 180.33, revise the second sentence of paragraph

(l)and the fourth sentence of paragraph

(m)to read as follows: § 180.33 Fees.

(l)* * * A request for waiver or refund of a fee shall be submitted to the Office of Pesticide Programs' Document Processing Desk at the appropriate address as set forth in 40 CFR 150.17(a) or (b). * * *

(m)* * * The actual letter or petition, along with supporting data, shall be forwarded within 30 days of payment to the Office of Pesticide Programs' Document Processing Desk at the appropriate address as set forth in 40 CFR 150.17(a) or (b). * * * [FR Doc. E6-9750 Filed 6-20-06; 8:45 am] BILLING CODE 6560-50-S ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 262 [EPA-R01-RCRA-2006-0391; FRL-8186-3] Extension of Site-Specific Regulations for University Laboratories XL Project AGENCY: Environmental Protection Agency (EPA). ACTION: Direct final rule. SUMMARY: The EPA is taking direct final action to extend the expiration date of the New England University Laboratories XL Project (Labs XL Project) rule that EPA previously promulgated under the eXcellence and Leadership program (Project XL), allowing laboratories at certain universities in Massachusetts and Vermont to follow certain alternative RCRA generator requirements. In this action, EPA is extending the expiration date from September 30, 2006 to a new date of April 15, 2009. EPA is making no further changes to the Labs XL Project regulations other than the change in expiration date. DATES: This direct final rule will be effective on August 21, 2006, without further notice, unless EPA receives adverse written comments by July 21, 2006. If EPA receives adverse comments, EPA will publish a timely withdrawal notice in the **Federal Register** indicating that this direct final rule has been withdrawn due to adverse comment. ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R01-RCRA-2006-0391, by one of the following methods: • *www.regulations.gov:* Follow the on-line instructions for submitting comments. • *E-mail: biscaia.robin@epa.gov.* • Mail: Robin Biscaia, Hazardous Waste Unit, Office of Ecosystems Protection, EPA Region I, One Congress Street, Suite 1100 (Mail Code: CHW), Boston, MA 02114-2023. • Hand Delivery: Robin Biscaia, Hazardous Waste Unit, Office of Ecosystems Protection, EPA Region I, One Congress Street, Suite 1100 (Mail Code: CHW), Boston, MA 02114-2023. Such deliveries are only accepted during the EPA's normal hours of operation, and special arrangements should be made for deliveries of boxed information. *Instructions:* Direct your comments to Docket ID No. EPA-R01-RCRA-2006-0391. EPA's policy is that all comments received will be included in the public docket without change and may be made available online at *www.regulations.gov,* including any personal information provided, unless the comment includes information claimed to be Confidential Business Information

(CBI)or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through *www.regulations.gov* or e-mail. The *www.regulations.gov* Web site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going through *www.regulations.gov* , your e-mail address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. *Docket:* EPA has established a docket for this action under Docket ID No. EPA-R01-RCRA-2006-0391. All documents in the docket are listed on the *www.regulations.gov* web site. Although listed in the index, some information may not be publicly available, *e.g.* , CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically through *www.regulations.gov* or in hard copy at the EPA New England Library, One Congress Street—11th Floor, Boston, MA 02114-2023, business hours Monday through Thursday 10 a.m. to 3 p.m., telephone:

(617)918-1990. Records in these dockets are available for inspection and copying during normal business hours. FOR FURTHER INFORMATION CONTACT: Robin Biscaia, Hazardous Waste Unit, EPA New England, One Congress Street, Suite 1100 (Mail Code: CHW), Boston, MA 02114-2023, telephone:

(617)918-1642, e-mail: *biscaia.robin@epa.gov.* SUPPLEMENTARY INFORMATION: I. Background Previously, on October 21, 2003, the EPA proposed an extension of the original expiration date of the Labs XL Project. EPA received no negative public comments in response to the proposal, and published a final rule on March 12, 2004. EPA is again extending the expiration date, this time as a direct final rule, without prior proposal, because the Agency views the extension as non-controversial and anticipates no adverse comments. Unless the EPA gets written comments which oppose this action during the comment period, the decision will take effect as provided below. If EPA gets comments that oppose this action, EPA will withdraw this direct final rule and it will not take effect. EPA will then address the public comments in a later final rule, but may not provide any further opportunity for comment beyond what is being provided for in this document. Any parties interested in commenting on this action should do so during the comment period being provided for in this action. A. Why Is the EPA Extending the Expiration Date of Its XL Project Regulations? As indicated above, EPA is extending the expiration date of September 30, 2006 set forth in 40 CFR 262.108 of the Labs XL Project regulations until April 15, 2009. The original rule implementing the Labs XL Project took effect on September 28, 1999 and allowed four years for the colleges to demonstrate the beneficial aspects of the new management system expiring on September 30, 2003. *See* 40 CFR 262.108. EPA later determined that an extension was appropriate, and published a **Federal Register** on October 21, 2003 (68 FR 60060) proposing a three-year extension (until September 30, 2006) of the Labs XL Project regulations. EPA received no negative public comments in response to the proposal, and finalized the extension on March 12, 2004 (69 FR 11801). In the meantime, EPA has been developing a national set of alternative regulations for academic laboratories that are similar to the Labs XL Project regulations. However, since these alternative regulations for academic laboratories will not be in place prior to the expiration of the current September 30, 2006 Labs XL Project regulations, if the Labs XL Project was not extended, there would be a period of time in which labs participating in the Labs XL Project would have to terminate their participation in the program and would not be able to benefit from alternative generator regulations, either under the Labs XL Project (since this would have expired) or under the National Labs Rule that EPA is developing (since this would not have been finalized). For this reason, EPA has decided to extend the expiration date of the Labs XL Project to allow time for a national set of alternative regulations to be promulgated and for equivalent regulations to be adopted by the States. EPA is proposing an extension of approximately two and a half years because the Agency believes that this would be a reasonable period of time for EPA to promulgate its National Labs Rule, and for the States to adopt equivalent regulations. Of course, nothing in this rule pre-judges what general Federal and State regulations ultimately will be adopted—rather, it simply gives an opportunity for alternative general regulations to be adopted before the expiration of the Labs XL Project. Also, EPA Region I recently has done an analysis of the Labs XL Project, which is available in the Docket. Based on this analysis, and other oversight of the project, the EPA believes that the continuation of the project should provide a superior level of environmental protection in comparison to an immediate return by the three covered institutions to standard RCRA regulation. EPA is publishing this rule without prior proposal because the Agency views it as a non-controversial action. The Agency anticipates no adverse comments, since none were received during the previous comment period to extend the original expiration date. However, in the “Proposed Rules” section of this **Federal Register** publication, EPA is publishing a separate, parallel document that will serve as a proposal to extend the current expiration date if the Agency receives adverse comments. B. What Is the University Labs XL Project? EPA announced Project XL—“eXcellence and Leadership” in May 1995 as a part of the National Performance Review and the EPA's effort to reinvent environmental protection. *See* 60 FR 27282 (May 23, 1995). Project XL provides a limited number of private and public regulated entities an opportunity to develop pilot projects to provide regulatory flexibility that would result in environmental protection that is superior to what would be achieved through compliance with current standard regulations and reasonably anticipated future regulations. One of the projects that EPA approved under Project XL was the Labs XL project. This project was intended to provide certain flexibility under RCRA for:

(1)The University of Massachusetts—Boston, Boston, MA;

(2)Boston College, Chestnut Hill, MA; and

(3)the University of Vermont, Burlington, VT (the “participating universities”). On September 28, 1999, EPA, the participating universities, the Massachusetts Department of Environmental Protection and the Vermont Department of Environmental Conservation signed the Final Project Agreement for the project. That agreement and the related specially adopted Federal and State regulations allow the participating universities to comply with the terms of their Environmental Management Plans

(EMPs)for their laboratories in place of certain standard requirements for hazardous waste generators, during a trial period. In order to allow this experiment, the EPA promulgated certain regulations in 1999 which are set forth in 40 CFR 262.10(j) and 40 CFR 262.100—108. *See* 64 FR 52380 (September 28, 1999) (final rulemaking) and 64 FR 40696 (July 27, 1999) (proposed rulemaking). The reasons for promulgating these particular EPA regulations are fully set forth in those previous rulemaking notices and will not be repeated here. These EPA regulations were designed to enable the EPA to authorize as part of a State's RCRA authorized program State regulations that were different from the standard EPA regulations, in order to implement the Labs XL project. After EPA promulgated its Labs XL Project regulations, both Massachusetts and Vermont promulgated their own state regulations establishing equivalent alternative standards for laboratories at the participating universities. The Vermont regulations were authorized by the EPA and became part of the federally enforceable Vermont RCRA program on October 26, 2000. *See* 65 FR 64164. The Massachusetts regulations were authorized by the EPA and became part of the federally enforceable Massachusetts RCRA program on March 12, 2004. *See* 69 FR 11801. C. What Is the Federal Regulation Change in This Rule? The Federal regulation change in this direct final rule is to extend the expiration date in 40 CFR 262.108 from September 30, 2006 to April 15, 2009. EPA is making no further changes to the Labs XL Project regulations. The regulation change is set out at the end of this document. II. Statutory and Executive Order Reviews The EPA has examined the effects of the change to the Federal regulations and reached the conclusions set out below. A. Executive Order 12866: Regulatory Planning and Review Under Executive Order 12866 (58 FR 51735, October 4, 1993), the Agency must determine whether the regulatory action is “significant” and therefore subject to Office of Management and Budget

(OMB)review and the requirements of the Executive Order. The Order defines “significant regulatory action” as one that is likely to result in a rule that may:

(1)Have an annual effect on the economy of $100 million or more or adversely effect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities;

(2)Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency;

(3)Materially alter the budgetary impact of entitlement, grants, user fees, or loan programs or the rights and obligations of recipients thereof;

(4)Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order. Because the annualized cost of these actions will be significantly less than $100 million and because these actions will not meet any of the other criteria specified in the Executive Order, it has been determined that this rule is not a “significant regulatory action” under the terms of the Executive Order and is therefore not subject to OMB review. B. Paperwork Reduction Act Under the Paperwork Reduction Act, 44 U.S.C. 3501 *et seq.* , Federal agencies must consider the paperwork burden imposed by any information request contained in a proposed rule or final rule. The Labs XL Project applies to only three universities, and any reporting obligations for nine or fewer sources are not subject to the Paperwork Reduction Act. Therefore, no information collection request

(ICR)was submitted to OMB for review under the Paperwork Reduction Act. C. Regulatory Flexibility Act The Regulatory Flexibility Act, 5 U.S.C. 601 *et seq.* , generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking under the Administrative Procedure Act or other statute, unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions. In determining whether a rule has a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act, the impact of concern is any significant adverse economic impact, since the primary purpose of any regulatory flexibility analysis would be to identify and address regulatory alternatives “which minimize any significant economic impact of the proposed rule on small entities.” 5 U.S.C. 603 and 604. Thus, an agency may certify that a rule will not have a significant economic impact on a substantial number of small entities if the rule relieves regulatory burden, or otherwise has a positive economic effect on all of the small entities subject to the rule. The Labs XL Project applies to only three universities. Also, the rule increases flexibility—thus relieving the regulatory burden. Accordingly, the EPA hereby certifies that this action will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 *et seq.* ). Thus a regulatory flexibility analysis is not required to be prepared under that Act. D. Unfunded Mandates Reform Act Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector. Under section 202 of the UMRA, the EPA generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures to State, local, and tribal governments, in the aggregate, or to the private sector, of $100 million or more in any one year. Before promulgating a EPA rule for which a written statement is needed, section 205 of the UMRA generally requires the EPA to identify and consider a reasonable number of regulatory alternatives and adopts the least costly, most cost-effective or least burdensome alternative that achieves the objectives of the rule. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows the EPA to adopt an alternative other than the least costly, most cost-effective or least burdensome alternative if the Administrator publishes with the final rule an explanation why that alternative was not adopted. In addition, before the EPA establishes any regulatory requirements that may significantly or uniquely affect small governments, including tribal governments, it must have developed under section 203 of the UMRA a small government agency plan. The plan must provide for notifying potentially affected small governments about the regulatory requirements, enabling officials of affected small governments to have meaningful and timely input in the development of the EPA regulatory proposals with significant Federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements. The EPA has determined that the section 202 and 205 requirements do not apply to this action because the rule does not contain a Federal mandate that may result in annual expenditures of $100 million or more for State, local, and/or tribal governments in the aggregate, or the private sector. Costs to State, local or tribal governments and the private sector already exist under the State program, and the actions will not impose any additional obligations on regulated entities. Thus the requirements of section 203 that the EPA develop a small government agency plan will not apply to this rule. E. Executive Order 13132: Federalism Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), requires the EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have Federalism implications.” “Policies that have Federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” This rule does not have federalism implications. It will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. This rule does not create a mandate on State, local, or tribal governments and does not impose any enforceable duties on these entities. Thus, Executive Order 13132 does not apply to this rule. F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 6, 2000), requires the EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” “Policies that have tribal implications” is defined in the Executive Order to include regulations that have “substantial direct effects on one or more Indian tribes, on the relationship between the Federal government and the Indian tribes, or on the distribution of power and responsibilities between the Federal government and the Indian tribes.” The actions will not have tribal implications, as defined by the Executive Order, because they will have no direct effect in Indian Country. None of the three universities participating in the XL project are located in Indian Country; therefore, this rule does not significantly or uniquely affect the communities of Indian tribal governments. Thus, Executive Order 13175 does not apply to this rule. G. Executive Order 13045: Protection of Children From Environmental Health and Safety Risks Executive Order 13045, “Protection of Children from Environmental Health Risks and Safety Risks,” applies to any rule that:

(1)Is determined to be “economically significant” as defined under Executive Order 12866, and

(2)concerns an environmental health or safety risk that the EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, the Agency must evaluate the environmental health or safety effects of the planned rule on children and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency. This rule is not subject to Executive Order 13045 because it is not an economically significant rule as defined by Executive Order 12866. In addition, it does not concern environmental health or safety risks that the EPA has reason to believe may have a disproportionate effect on children. H. Executive Order 13211: Actions That Significantly Affect Energy Supply, Distribution, or Use This rule is not subject to Executive Order 13211 because that Executive Order applies only to rules that are “significant” under Executive Order 12866, and this rule is not a significant regulatory action under Executive Order 12866. I. National Technology Transfer and Advancement Act Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (“NTTAA”), Public Law 104-113, section 12(d) (15 U.S.C. 272 note) directs the EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards ( *e.g.* , materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies. The NTTAA directs the EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards. This rule does not involve technical standards covered by voluntary consensus standards. Therefore, EPA did not consider the use of any voluntary consensus standards. J. Congressional Review Act The Congressional Review Act, 5 U.S.C. 801 *et seq.* , as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA is submitting a report containing this document and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication in the **Federal Register** . In addition, a major rule cannot take effect until 60 days after it is published in the **Federal Register** . This action is not a “major rule” as defined in 5 U.S.C. 804(2). However, it nevertheless will take effect in 60 days in accordance with the procedures applicable to direct final rules. List of Subjects in 40 CFR Part 262 Environmental protection, Hazardous waste, Reporting and recordkeeping requirements. Authority: The Federal regulation change is being made under the authority of the Resource Conservation and Recovery Act

(RCRA)sections 2002 and 3002, 42 U.S.C. 6912 and 6922. Dated: June 12, 2006. Robert W. Varney, Regional Administrator, EPA New England. For the reasons set forth in the preamble, chapter I of title 40 of the Code of Federal Regulations is amended as follows: PART 262—STANDARDS APPLICABLE TO GENERATORS OF HAZARDOUS WASTE 1. The authority citation for part 262 continues to read as follows: Authority: 42 U.S.C. 6906, 6912, 6922-6925, 6937, and 6938. Subpart J—University Laboratories XL Project—Laboratory Environmental Management Standard 2. Section 262.108 is revised to read as follows: § 262.108 When will this subpart expire? This subpart will expire on April 15, 2009. [FR Doc. E6-9754 Filed 6-20-06; 8:45 am] BILLING CODE 6560-50-P FEDERAL COMMUNICATIONS COMMISSION 47 CFR Parts 2, 25, and 87 [ET Docket No. 02-305, FCC 06-62] World Radiocommunication Conferences Concerning Frequency Bands above 28 MHz AGENCY: Federal Communications Commission. ACTION: Final rule. SUMMARY: This document denies a Petition for Partial Reconsideration filed by AirTV Limited in response to the Commission's *S-Band Allocation Order,* which, inter alia, deleted the unused Broadcasting Satellite Service

(BSS)allocation from the band 2500-2690 MHz and removed a related footnote from the Table of Frequency Allocations (Table). We continue to believe that the decision in the *S-Band Allocation Order* serves the public interest because it will prevent terrestrial licensees in the band 2500-2690 MHz from incurring the costs of mitigating the interference expected from BSS systems, such as the one proposed by AirTV. DATES: Effective July 21, 2006. FOR FURTHER INFORMATION CONTACT: Patrick Forster, Office of Engineering and Technology, Policy and Rules Division,

(202)418-7061, e-mail: *Patrick.Foster@fcc.gov.* SUPPLEMENTARY INFORMATION: This is a summary of the Commission's *Order on Reconsideration,* ET Docket No. 02-305, FCC 06-62, adopted May 3, 2006 and released May 8, 2006. The full text of this document is available on the Commission's Internet site at *http://www.fcc.gov.* It is also available for inspection and copying during regular business hours in the FCC Reference Center (Room CY-A257), 445 12th Street., SW., Washington, DC 20554. The full text of this document also may be purchased from the Commission's duplication contractor, Best Copy and Printing Inc., Portals II, 445 12th St., SW., Room CY-B402, Washington, DC 20554; telephone

(202)488-5300; fax

(202)488-5563; e-mail *FCC@BCPIWEB.COM.* Summary of the Order on Reconsideration 1. In the *Order on Reconsideration,* the Commission denies a Petition for Partial Reconsideration (Petition) filed by AirTV Limited (AirTV) in response to the Commission's *S-Band Allocation Order,* which, *inter alia,* deleted the unused Broadcasting Satellite Service

(BSS)allocation from the band 2500- 2690 MHz and removed a related footnote from the Table of Frequency Allocations (Table). We continue to believe that the decision in the *S-Band Allocation Order* is necessary to prevent terrestrial licensees in the band 2500-2690 MHz from incurring the costs of mitigating the interference expected from BSS systems, such as the one proposed by AirTV. 2. On January 22, 2004, AirTV filed its Petition seeking reinstatement of the BSS allocation in the band 2520-2670 MHz and expansion of the BSS allocation in that band through deletion of footnote NG101. On February 9, 2004, we released a public notice seeking comment on AirTV's Petition, 69 FR 7484 February 17, 2004. The Wireless Communications Association International, Inc.

(WCA)filed an opposition (Opposition) to AirTV's Petition on March 3, 2004. In addition, both AirTV and WCA submitted additional pleadings in the record. 3. Pursuant to § 1.429(a) of the Commission's rules, any interested party may petition for reconsideration of a final action in a Commission proceeding. Section 1.429(b) states that a petition for reconsideration which relies on facts which have not previously been presented to the Commission will be granted only if

(1)the facts relied on relate to events which have changed since the last opportunity to present them to the Commission;

(2)the facts relied on were unknown to the petitioner until after his last opportunity to present them to the Commission, and he could not through the exercise of ordinary diligence have learned of the facts in question prior to such an opportunity; or

(3)the Commission determines that consideration of the facts relied on is required in the public interest. 4. We first reject AirTV's apparent position that it bore no responsibility for demonstrating in the record that BSS systems, such as its proposed Direct-to-Aircraft

(DTA)system, would not cause interference to terrestrial systems. We distinguish between a burden of proof, which AirTV mistakenly believes that we imposed upon it in the *S-Band Allocation Order,* and the burden of persuasion that is an integral part of any rulemaking proceeding. In the *Notice of Proposed Rule Making,* (“NPRM”), the Commission sought comment on the proposed deletion of an unused BSS allocation, and the record that was subsequently developed included pleadings setting forth reasons why we should adopt or reject the proposal. Because the Commission must make a rational connection between the facts found and the choice made, and provide a reasoned analysis to support its determination—and because in this case the comments contained conflicting stances—any interested party had a responsibility to weigh in with substantive and persuasive arguments in order to support its position. Thus, it was incumbent upon AirTV to offer substantive and persuasive comments that could counter both our tentative conclusion and other parties' pleadings that supported the proposed deletion of the allocation. In addition, however, we also now agree with WCA that AirTV's suggestion in its comments that the Commission should retain the BSS allocation, but without footnote NG101, was an inappropriate filing and amounts to the equivalent of a waiver request or a petition for further rulemaking. As such, it was incumbent on AirTV to show that its proposed DTA system would not interfere with terrestrial systems. 5. In the *S-Band Allocation Order,* the Commission made the determination that deleting the BSS/Fixed Satellite Service

(FSS)allocation would serve the public interest by preventing the potential disruption of Educational Broadband Service

(EBS)and Broadband Radio Service

(BRS)across the country, as well as by avoiding imposing high costs on terrestrial licensees to mitigate harmful interference from BSS and FSS services to terrestrial services. A review of the record on reconsideration gives us no reason to alter our conclusion. We do not find persuasive AirTV's argument that we should overturn our decision on the grounds that its proposed system would not produce “unacceptable interference” to terrestrial systems because it would operate with power flux density

(PFD)levels 10 dB below the PFD levels specified in International Telecommunication Union

(ITU)Table 21-4. As the final product of a consultative process that involved input from a variety of working groups, ITU Table 21-4 sets forth maximum PFD levels at the Earth's surface produced by emissions from a satellite that are intended to promote sharing between BSS and terrestrial services in the band 2500-2690 MHz. We note, however, that other parties that have studied the potential for BSS interference to terrestrial systems in the band have discussed the possible interference mitigation measures that may be necessary with shared operations in the band. For example, in a liaison statement from ITU-R Study Groups Working Party

(WP)6S to WP 8F that AirTV did not cite, WP 6S indicates that all BSS systems, even if operated at PFD levels 10 dB below the levels specified in ITU Table 21-4 as AirTV proposed, will reduce the coverage area of terrestrial systems in the band 2630-2655 MHz. Similarly, the United Kingdom, within the framework of the European Conference of Postal and Telecommunications Administrations Electronic Communications Committee Project Team 1 (CEPT ECC/PT1), found that BSS systems, even if operated at the lower PFD levels proposed by AirTV, will result in reduced coverage area for terrestrial systems using the band 2630-2655 MHz. Even one of the Draft Recommendations cited by AirTV in support of its Petition expressly assumes that terrestrial stations will be employing mitigation techniques to counteract BSS systems' interference. All these studies predict the additional interference mitigation costs for terrestrial systems subjected to BSS interference would include, for example, the need to install additional base stations in order to restore any lost coverage area. Furthermore, because the studies by WP 6S and the United Kingdom only consider BSS systems' interference potential to IMT-2000 terrestrial systems, the potential impact to existing BRS and EBS systems in the United States is actually greater than the impact predicted in those studies. This is due to the fact that existing BRS and EBS systems use receiving antennas with higher gain than the receiving antennas typically employed in IMT-2000 systems. 6. A closer examination of AirTV's proposed system gives us additional reason to conclude that it would impose interference mitigation burdens on incumbent terrestrial service operators. When we compare the interference-to-noise (I/N) ratios AirTV purports its system would produce with the ratios reported in the WP 6S and United Kingdom studies, we find that AirTV's I/N ratios closely approximate the I/N ratios that the WP 6S and the United Kingdom materials indicate will result in reduced coverage area and increased interference mitigation costs for terrestrial systems. Furthermore, the interference study that accompanied AirTV's Petition does not evaluate the interference potential of its proposed satellites at 55° West Longitude and 96° West Longitude, and does not compute the I/N ratios for elevation angles below 20° for its proposed satellite at 86° West Longitude, where the interference potential from AirTV's proposed system to terrestrial systems is greatest. Satellite signals received at elevation angles below 20° have the greatest potential to cause harmful interference to terrestrial systems because the gain of the receiving antennas in these terrestrial systems increases as the elevation angle decreases below this angle. In this regard, the potential for interference from AirTV's system is most prevalent where AirTV's satellite signals would be received by terrestrial systems' receiving antennas at elevation angles less than 20°, as WCA asserts, in Alaska and Hawaii, but also in portions of the Continental United States, including locations in Arizona, California, Nevada, Oregon, Washington, Idaho, Montana, North and South Dakota, Wyoming, Colorado, and Utah. An evaluation of the interference potential of AirTV's proposed system at elevation angles less than 20° shows that it would produce I/N ratios that exceed −6dB, which all parties have indicated will affect terrestrial operations in the band. 7. For the foregoing reasons, we continue to believe that the Commission properly and rationally concluded that BSS systems will affect the coverage area and introduce potential interference mitigation costs for terrestrial systems. Although AirTV may plan to operate a system that generates PFD levels “significantly below” the maximum levels in Table 21-4 of the ITU Radio Regulations, that in itself does not mean that such operations will not have a significant effect on terrestrial users in the band. While Table 21-4 and the studies we discuss, above, set forth ways in which the band may be shared, it is a different matter to conclude that such shared use best serves the public interest here. In balancing the effect of such burdens on terrestrial licensees against the currently unused BSS allocation, the prospect of interference to terrestrial licensees that would affect their planning and deployment of systems weighs strongly against reinstating the unused BSS allocation. Accordingly, we continue to believe that it best serves the public interest to remove the allocation. 8. Because we have determined that BSS systems will impose interference mitigation costs that we find unacceptable for terrestrial systems, we also reject AirTV's suggestion that the Commission could consider individual BSS applications on a case-by-case basis as impractical. This is especially relevant in light of the Commission's decisions to reband and add a mobile allocation to the band 2500-2690 MHz that are anticipated to promote increased mobile use in these frequencies. Our restructuring of the band, with the enhanced flexibility targeted to facilitate new mobile and wireless broadband applications, is likely to make it more, rather than less, difficult to avoid interference from BSS systems to terrestrial systems. Moreover, based on our evaluation of AirTV's proposed system, we conclude that a BSS system will have minimal likelihood of success in overcoming these interference challenges. Were we to implement AirTV's suggestion to examine specific BSS system proposals on a case-by-case basis and address the appropriate terrestrial mitigation remedy for the interference such BSS systems would be expected to cause to terrestrial systems, we would introduce complexity, uncertainty, and the likelihood of increased costs for terrestrial operators in the band 2500-2690 MHz to build their systems with capabilities for mitigating possible interference from BSS operations. In exchange, we would introduce the prospect that, under certain circumstances that would have not been clearly demonstrated as of yet, it might be possible, at some point in the future, to deploy a BSS operation in the band that would not impose unacceptable interference mitigation costs on existing terrestrial systems. 9. We also find AirTV's other arguments unpersuasive. We reject the argument that, in order to delete the unused BSS allocation, we need an affirmative showing from terrestrial licensees in the band that the BSS cannot coexist with existing terrestrial services. Our election in the *Multichannel Video Distribution and Data Service* (MVDDS) proceeding to require such an analysis does not mandate such an analysis every time we consider adding a new service. In addition, this is a case in which the Commission deleted, rather than added, a service allocation from a frequency band. Furthermore, the respective services contemplated by the parties would both involve ubiquitous mobile receivers. Given the challenges inherent in arranging compatible uses of such receivers, we see no point in requiring or reviewing further technical studies. The sharing scenario proposed is, in this case, not practicable. Consequently, we see no purpose in maintaining an allocation for BSS when we are not in a position to adequately protect BSS earth stations from interference. 10. AirTV also contends for the first time, at this late date, that § 7 of the Communications Act of 1934, as amended, requires parties that oppose the introduction of a new service in the band (and thus support the Commission's deletion of the BSS allocation in the band 2500-2690 MHz) to demonstrate that the BSS was inconsistent with the public interest. As an initial matter, we note that that portion of the Act has been characterized as a broad policy statement reflecting congressional delegation on policy matters to the Commission's discretion. Furthermore, even if section 7 should be read to apply to the instant situation involving the deletion of an unused allocation, we nevertheless find that our decision is consistent with the provision's intent. Specifically, because we think that the BRS/EBS band, as recently restructured, holds great potential for the development of new services and technologies, it was consistent with the public interest for us to remove an allocation for a service (in this case, the BSS) that was not presently being offered and that, if deployed, could impose limitations on the rapid and robust deployment of new BRS and EBS technologies. Thus, our decision serves to encourage the provision of new technologies and services to the public, in furtherance of section 7's broad and general policies. 11. We maintain our conclusion that deletion of the BSS allocation was not violative of international requirements, notwithstanding AirTV's arguments to the contrary. We note that the U.S. Schedule of Specific Commitments to the World Trade Organization

(WTO)Basic Telecommunications Agreement includes an exemption from most-favored-nation obligations for the Direct-to-Home Fixed-Satellite Service (DTH-FSS), Direct Broadcast Satellite

(DBS)service, and Digital Audio Radio Service (DARS). Under this exemption, the U.S. is not required to extend most-favored-nation treatment for these satellite services in evaluating coordination requests from foreign administrations for applications to transmit into the territory of the U.S. by non-U.S. satellite systems. In addition, nothing in the U.S. Schedule of Specific Commitments or in the Commission's decision implementing the WTO decision, however, limits the exempted satellite services to a specific frequency band, in particular the DBS frequency band. For this reason, the exemption applies to all signals transmitted or retransmitted by satellites that are intended for direct reception by the general public. Thus, we reject AirTV's assertion that, because BSS systems at 2500-2690 MHz are not part of the Commission's definition of DBS services in § 25.201, the Commission's deletion of the BSS allocation from the band 2500-2690 MHz was precluded by the commitments the U.S. has under the WTO's General Agreement on Trade in Services (GATS). In addition, as we previously determined, under the WTO's GATS, the U.S. may also limit new satellite authorizations when incumbent operations face potential interference. Furthermore, we agree with WCA's assertion that the Commission's decision to delete the BSS allocation does not discriminate against foreign licensees, because the decision affects both domestic and foreign systems in a non-discriminatory fashion. This conforms to the WTO's GATS non-discrimination policies. Conclusion 12. Having reexamined our allocation decision, we remain convinced that it was properly decided based on interference mitigation concerns. We continue to believe, that simultaneous operation of BSS and terrestrial systems at 2520-2670 MHz would require parties to address matters of technical compatibility in order to make use of the band. Thus, we continue to find that the public interest is served by our deletion of the unused BSS allocation, and that our decision will prevent terrestrial licensees from incurring the costs of evaluating and mitigating the interference that any proposed BSS deployment—including the AirTV system examined herein—would be expected to cause to terrestrial systems. Procedural Matters 13. A Regulatory Flexibility Act analysis or certification, *see generally* 5 U.S.C 604-605, is not required because this order does not promulgate or revise any rules. Ordering Clauses 14. Pursuant to sections 4(i), 303(r), and 405 of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 303(r), and 405, and § 1.429 of the Commission's Rules, 47 CFR 1.429, the Petition for Partial Reconsideration filed by AirTV Limited, is denied. Federal Communications Commission. Marlene H. Dortch, Secretary. [FR Doc. E6-9592 Filed 6-20-06; 8:45 am] BILLING CODE 6712-01-P FEDERAL COMMUNICATIONS COMMISSION 47 CFR Part 64 [CG Docket No. 03-123; DA 06-1043] Telecommunications Relay Services and Speech-to-Speech Services for Individuals With Hearing and Speech Disabilities AGENCY: Federal Communications Commission. ACTION: Final rule; dismissal of petition. SUMMARY: In this document, the Commission denies a petition for declaratory ruling ( *Petition* ) filed by Telco Group, Inc. (Telco Group) requesting that the Commission either exclude international revenues from the end-user revenue base used to calculate payments due to the Interstate Telecommunications Relay Service

(TRS)Fund (Fund), or in the alternative, waive the portion of Telco Group's contribution based on its international end-user revenues. Further, Telco Group requests a stay of its payment obligation pending the Commission's decision. The Commission finds that the inclusion of international end-user revenues in calculating carriers' obligations to the Interstate TRS Fund is appropriate. In addition, the Commission is unable to find good cause to waive the portion of Telco Group's Interstate TRS Fund assessment based on its international services revenue. Because the Commission addresses the merits of the *Petition,* the request for stay is dismissed as moot. DATES: Effective May 16, 2006. ADDRESSES: Federal Communications Commission, 445 12th Street, SW., Washington, DC 20554. FOR FURTHER INFORMATION CONTACT: Thomas Chandler, Consumer & Governmental Affairs Bureau, Disability Rights Office at

(202)418-1475 (voice),

(202)418-0597 (TTY), or e-mail at *Thomas.Chandler@fcc.gov.* SUPPLEMENTARY INFORMATION: This document does not contain new or modified information collection requirements subject to the PRA of 1995, Public Law 104-13. In addition, it does not contain any new or modified “information collection burden for small business concerns with fewer than 25 employees,” pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, *see* 44 U.S.C. 3506 (c)(4). This is a summary of the Commission's document DA 06-1043, *Telecommunications Relay Services and Speech-to-Speech Services for Individuals with Hearing and Speech Disabilities,* Declaratory Ruling, CG Docket No. 03-123, DA 06-1043, adopted May 16, 2006, released May 16, 2006, addressing issues raised in Telco Group's Petition for Declaratory Ruling, or in the Alternative, Petition for Waiver ( *Petition* ), filed July 26, 2004. The full text of document DA 06-1043 and copies of any subsequently filed documents in this matter will be available for public inspection and copying during regular business hours at the FCC Reference Information Center, Portals II, 445 12th Street, SW., Room CY-A257, Washington, DC 20554. Document DA 06-1043 and copies of subsequently filed documents in this matter may also be purchased from the Commission's duplicating contractor at Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC 20554. Customers may contact the Commission's duplicating contractor at its Web site *http://www.bcpiweb.com* or by calling 1-800-378-3160. To request materials in accessible formats for people with disabilities (Braille, large print, electronic files, audio format), send an e-mail to *fcc504@fcc.gov* or call the Consumer & Governmental Affairs Bureau at

(202)418-0530 (voice),

(202)418-0432 (TTY). Document DA 06-1043 can also be downloaded in Word or Portable Document Format

(PDF)at: *http://www.fcc.gov/cgb/dro.* Synopsis Background Title IV of the ADA directs the Commission to ensure that interstate and intrastate telecommunications relay services are available, to the extent possible and in the most efficient manner, to individuals with hearing and speech disabilities in the United States. *See generally* Public Law 101-336, 104 Statute 327, 366-69 (July 26, 1990), codified at 47 U.S.C. 225; *see also* 47 U.S.C. 225(b)(1). Section 225 of the Communications Act, requires the Commission to establish regulations to ensure the quality of relay service. 47 U.S.C. 225(b). The Commission initially implemented this mandate in three orders. In *TRS I* , the Commission adopted rules identifying the relay services that carriers offering voice telephone transmission services must provide to persons with hearing and speech disabilities and the TRS mandatory minimum standards that govern the provision of service. *See Telecommunications Relay Services for Individuals with Hearing and Speech Disabilities, and the Americans with Disabilities Act of 1990* , CC Docket No. 90-571, Report and Order and Request for Comments, 6 FCC Rcd 4657 (July 26, 1991) ( *TRS I* ), published at 56 FR 36729, August 1, 1991; *see* 47 CFR 64.604 of the Commission's rules (the TRS “mandatory minimum standards”). In *TRS II* , the Commission adopted a shared funding mechanism for interstate TRS cost recovery, spreading the cost of providing TRS to all subscribers of every interstate service. * See Telecommunications Services for Individuals with Hearing and Speech Disabilities, and the Americans with Disabilities Act of 1990 * , CC Docket No. 90-571, Order on Reconsideration, Second Report and Order, and Further Notice of Proposed Rulemaking, 8 FCC Rcd 1802, 1805-1806, at paragraphs 19-27 (February 25, 1993) ( *TRS II* ), published at 58 FR 12204, March 3, 1993 and 58 FR 12175, March 3, 1993. Under section 225(d)(3) of the Communication's Act, the Commission's regulations governing the jurisdictional separation of costs shall generally provide that the costs caused by interstate TRS shall be recovered from all subscribers to every interstate service, and the costs caused by intrastate TRS shall be recovered by the states. 47 U.S.C. 225(d)(3). The Commission also proposed that under this mechanism a charge would be assessed on all common carriers that offer interstate telecommunications services to create the Interstate TRS Fund, and that the providers would be compensated from the Fund for providing TRS based on a national average TRS interstate minute of use rate. *TRS II* , 8 FCC Rcd at 1806, paragraphs 23-26. In *TRS III* , the Commission established the Interstate TRS Fund, currently administered by the National Exchange Carrier Association (NECA), to reimburse TRS providers for the costs of providing interstate TRS. *See Telecommunications Services, and the Americans with Disabilities Act of 1990,* CC Docket No. 90-571, Third Report and Order, 8 FCC Rcd 5300 (July 20, 1993) ( *TRS III* ), published at 58 FR 39671, July 26, 1993. That order also finalized the contribution methodology for payments into the Fund and defined the interstate services subject to the contribution assessment. The Commission adopted a regulation providing that “[c]ontributions shall be made by all carriers who provide interstate services, including, but not limited to * * * international * * * services.” 47 CFR 64.604(c)(5)(iii)(A) of the Commission's rules; *see also TRS III* , 8 FCC Rcd at 5306, paragraph 33 (ordering clause adopting rule amendments set forth in Appendix B); *Telecommunications Services for Individuals with Hearing and Speech Disabilities, Recommended TRS Cost Recovery Guidelines* , CC Docket No. 98-67, Memorandum Opinion and Order and Further Notice of Proposed Rulemaking, 16 FCC Rcd 22948, 22949-22950, paragraph 2 (December 21, 2001), published at 67 FR 4203, January 29, 2002 and 67 FR 4227, January 29, 2002 (noting that *TRS III* required “that every carrier providing interstate telecommunications services contribute to the TRS Fund on the basis of * * * interstate and international revenues”). In its *Petition* , Telco Group requests that the Commission exclude international revenues from the revenue base used to calculate payments due to the Interstate TRS Fund, “at least for those carriers whose international revenues comprise a significant portion of their total interstate and international revenues,” or in the alternative, find good cause to waive Telco Group's obligations to the Fund that are based on its international revenues. *Petition* at 1. Telco Group maintains that such relief is warranted because, in what Telco Group argues is an analogous case involving the Universal Service Fund (USF), the United States Court of Appeals for the Fifth Circuit required the Commission to revisit the USF assessment on the international services revenue of a provider of primarily international services and *de minimis* interstate services. *Petition* at 3 (citing *Texas Office of the Public Utility Counsel* v. *FCC* , 183 F.3d 393 (5th Cir. 1999) ( *TOPUC* )). The Court found that requiring a carrier to pay an assessment on its international services revenue that exceeded the carrier's total interstate revenue violated the equitable and nondiscriminatory contribution requirement of the Universal Service statute, section 254 of the Communications Act of 1934, as amended. *TOPUC* , 183 F.3d at 434-435; *see* 47 U.S.C. 254(b)(4). Although the Interstate TRS Fund is governed by section 225 of the Communications Act, rather than section 254 of the Communications Act, Telco Group argues that the Interstate TRS Fund contribution rules also are “designed to be equitable and nondiscriminatory” and, therefore, the relief afforded in *TOPUC* should be extended to TRS. *Petition* at 4. Telco Group argues that its circumstance is comparable to the *TOPUC* plaintiff because the “vast majority” of Telco Group's revenues—approximately 96 percent—are derived from international services. Moreover, Telco Group argues the public interest will be served by granting the requested relief because it will ensure Telco Group “remains as a viable competitor in the market for interstate services.” *Petition* at 9. Telco Group adds that the “high payment obligations also hinder Telco Group's ability to compete outside the United States, and so contradict the Commission's efforts to promote and encourage competition in the international and interstate markets.” *Petition* at 9-10 (citing *2000 Biennial Regulatory Review* — *Policies and Procedures Concerning the International, Interexchange Marketplace* , IB Docket No. 02-202, Report and Order, 16 FCC Rcd 10647 (March 20, 2001)), published at 66 FR 16874, March 28, 2001. On October 25, 2004, the Telco Group *Petition* was place on Public Notice. *Telco Group, Inc. Files Petition for Declaratory Ruling or Waiver to Exclude International Revenues from the Revenue Base Used to Calculate Payment to the Interstate TRS Fund* , CC Docket No. 98-67, Public Notice, 19 FCC Rcd 20965 (October 25, 2004), published at 69 FR 64573, November 5, 2004. Two oppositions were filed, one from a carrier and one from an organization representing the deaf community. Comments were filed by MCI

(MCI)(November 26, 2004) and Telecommunications for the Deaf, Inc.

(TDI)(November 24, 2004). Late filed comments were filed by Globecomm Systems, Inc. (“GSI”) on February 14, 2006. On that same date, GSI also filed a petition for declaratory ruling that there is no obligation to pay into the Interstate TRS Fund based on revenues arising from traffic that does not originate or terminate in the United States. Globecomm Systems, Inc., Petition for Declaratory Ruling (filed February 14, 2006). Because the issue in the GSI petition—whether certain calls should be considered international calls—is distinct from the issue raised in Telco Group's *Petition* , the Commission will address GSI's petition in a separate order. Telco Group did not file any reply comments. Discussion Telco Group's *Petition* is premised on the congruence between section 254 of the Communications Act, which establishes Universal Service requirements, and section 225 of the Communications Act, which establishes requirements for the provision of TRS. Sections 254 and 225 of the Communications Act, however, differ in fundamental and, in this case, dispositive ways. Unlike USF assessments, contributions to the Interstate TRS Fund are used, in part, to reimburse international relay calls. Therefore, in this case, the public interest lies in ensuring adequate funding for interstate TRS—including international TRS—by assessing contributions on as broad a revenue base as can be justified. Accordingly, Telco Group's request that the Commission exclude international revenues from the end-user revenue base used to calculate payments due to the Interstate TRS Fund is denied. Because Telco Group has not demonstrated why individualized relief is appropriate, the company's request for waiver of the interstate TRS assessment on international services revenue is also denied. Unlike the Universal Service Fund, which does not directly support international services but only may be used only to support domestic services, the Interstate TRS Fund is used to support *international* TRS. *TRS I Order* , 6 FCC Rcd at 4660-4661, paragraph 18 (discussing comments that relay services should relay international calls that originate or terminate in the United States provided that equipment of the foreign country is compatible with U.S. equipment); *TRS III Order* , 8 FCC Rcd at 5301, paragraph 9, note14 (in adopting rule requiring contributions to the Fund to be based on, *inter alia,* international services, Commission notes Sprint's argument “that international services should be included because TRS providers will be compensated by the administrator for international TRS minutes of use”). IP Relay service is an exception to this rule. *See, e.g., Telecommunications Relay Services and Speech-to-Speech Services for Individuals with Hearing and Speech Disabilities,* CC Docket No. 98-67, Order, 19 FCC Rcd 12224, 12242, at paragraph 48, note, 121 (June 30, 2004) (noting that the Fund “does not currently reimburse providers for the costs of providing international calls via IP Relay”); *Telecommunications Relay Services and Speech-to-Speech Services for Individuals with Hearing and Speech Disabilities,* CC Docket No. 98-67, Order, 18 FCC Rcd 12823, 12837, at paragraph 42 (June 30, 2003) (noting that in March 2003 NECA was directed to suspend payment to TRS providers for international IP Relay service minutes); *see also 2004 TRS Report and Order* , 19 FCC Rcd at 12525, paragraph 129, published at 69 FR 53346, September 1, 2004 and 69 FR 53382, September 1, 2004 (noting that although Fund does not pay for international IP Relay service calls, it does pay for international Video Relay Service calls). Therefore, unlike the USF assessments at issue in *TOPUC,* excluding international revenues from the revenue base used for calculating TRS contributions would not serve the public interest. With the TRS Fund, it is not the case—as in *TOPUC* —that a provider of only *de minimis* interstate service may be required to bear a disproportionately heavy burden in subsidizing the provision of such services by other carriers. Contributions to the Interstate TRS Fund based on Telco Group's international services revenue can, in turn, be used to subsidize international TRS. Moreover, Telco Group is required to contribute the same percentage of its interstate and international revenues to the Interstate TRS Fund as other carriers that provide both interstate and international services. This approach is both equitable and nondiscriminatory. Opposition of MCI at 3. As MCI notes, “it would be discriminatory if Telco Group, and other internationally-oriented carriers, were allowed to exclude international revenues from the TRS contribution base. Companies such as MCI, who also earn international revenues by providing international prepaid calling services, as well as other international services, would be required to compete against companies who would have been granted a discriminatory cost advantage were the Commission to grant Telco Group's request.” Moreover, *TOPUC* is specifically based on the equitable and nondiscriminatory contribution requirement of section 254 of the Communications Act. Section 254 of the Communications Act states that “[a]ll providers of telecommunications services should make an equitable and nondiscriminatory contribution to the preservation and advancement of universal service.” 47 U.S.C. 254(b)(4). The Court found that requiring COMSAT, a satellite provider of primarily international services along with *de minimis* interstate service offerings, to contribute to the Universal Service Fund based on its international services revenues was inequitable and discriminatory given that COMSAT's contribution based on international services revenue would exceed the company's total interstate revenues. The Court stated that “the agency's interpretation of ‘equitable and nondiscriminatory,’ allowing it to impose prohibitive costs on carriers such as COMSAT, is ‘arbitrary and capricious’ * * * [because] COMSAT and carriers like it will contribute more in universal service payments than they will generate from interstate service.” *TOPUC,* 183 F.3d at 434-435. Section 225 of the Communications Act, however, contains no such express requirement. In the absence of such language, and particularly because international services are supported by the Interstate TRS Fund, the Commission is not bound by the TOPUC decision to reduce or eliminate Interstate TRS Fund assessments on international services for Telco Group or similarly situated providers. With respect to contributions, the only limiting language of section 225 of the Communications Act is jurisdictional in nature. *See* 47 U.S.C. 225(d)(3) (addressing jurisdictional separation of costs). Accordingly, Telco Group's request for a declaratory ruling excluding international services revenue from the interstate contribution base is denied. Telco Group's request for waiver of the interstate TRS assessment on its international services revenue is also denied. Although the Commission may waive a provision of its rules for “good cause shown,” 47 CFR 1.3 of the Commission's rules; *see generally 2004 TRS Report and Order,* 19 FCC Rcd at 12520, paragraph 110 (discussing standard for waiving Commission rules). Telco Group's argument rests on the fact that a high percent of its revenues derive from international services and therefore its TRS payment is substantially higher that it would be if international revenues were not included and burdensome. *Petition* at 9-10. As noted above, however, because the Fund supports both international and interstate TRS, TRS assessments are based on both international and interstate revenues, and the fact that some contributors have relatively more international revenues, or more interstate revenues, is not relevant to ensuring adequate funding for these services. Congressional Review Act The Commission will not send a copy of the *Declaratory Ruling* pursuant to the Congressional Review Act because the adopted rules are rules of particular applicability. *See* 5 U.S.C. 801(a)(1)(A). Ordering Clauses Pursuant to the authority contained in section 225 of the Communications Act of 1934, as amended, 47 U.S.C. 225, and §§ 0.141 and 0.361 of the Commission's rules, 47 CFR 0.141 and 0.361, Telco Group's Petition for Declaratory Ruling or, in the Alternative, Petition for Waiver, is denied. Having addressed the merits of the Petition for Declaratory Ruling or, in the Alternative, Petition for Waiver, Telco Group's Petition for Stay Pending Resolution of Petition for Declaratory Ruling or, in the Alternative, Petition for Waiver is moot. Federal Communications Commission. Monica S. Desai, Chief, Consumer & Governmental Affairs Bureau. [FR Doc. E6-9795 Filed 6-20-06; 8:45 am] BILLING CODE 6712-01-P FEDERAL COMMUNICATIONS COMMISSION 47 CFR Part 73 [DA 06-1072; MB Docket No. 05-4; RM-11133] Radio Broadcasting Services; Hagerstown and Myersville, MD AGENCY: Federal Communications Commission. ACTION: Final rule. SUMMARY: At the request of Manning Broadcasting, former licensee of Station WARX(FM), Hagerstown, Maryland, this document reallots Channel 295B from Hagerstown, Maryland, to Myersville, Maryland, as the community's first local transmission service, and modifies the license for Station WARX(FM) to specify the new community. Channel 295B is reallotted at Myersville at a site 13.9 kilometers (2.4 miles) west of the community at coordinates 34-29-57 NL and 77-36-42 WL. DATES: Effective July 17, 2006. ADDRESSES: Secretary, Federal Communications Commission, 445 12th Street, SW., Room TW-A325, Washington, DC 20554. FOR FURTHER INFORMATION CONTACT: Victoria M. McCauley, Media Bureau,

(202)418-2180. SUPPLEMENTARY INFORMATION: This is a summary of the Commission's *Report and Order,* MB Docket No. 05-4, adopted May 31, 2006, and released June 2, 2006. The *Notice of Proposed Rule Making,* 70 FR 3666, January 26, 2005, was issued at the request of Manning Broadcasting. The full text of this Commission decision is available for inspection and copying during normal business hours in the Commission's Reference Information Center, 445 Twelfth Street, SW., Washington, DC 20554. The complete text of this decision may also be purchased from the Commission's duplicating contractor, Best Copy and Printing, Inc., 445 12th Street, SW., Room CY-B402, Washington, DC 20054, telephone 800-378-3160 or *http://www.BCPIWEB.com.* The Commission will send a copy of this *Report and Order* in a report to be sent to Congress and the Government Accountability Office pursuant to the Congressional Review Act, *see* 5 U.S.C. 801(a)(1)(A). List of Subjects in 47 CFR Part 73 Radio, Radio broadcasting. For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR part 73 as follows: PART 73—RADIO BROADCAST SERVICES 1. The authority citation for part 73 continues to read as follows: Authority: 47 U.S.C. 154, 303, 334, 336. § 73.202 [Amended] 2. Section 73.202(b), the Table of FM Allotments under Maryland, is amended by removing Channel 295B at Hagerstown, and adding Myersville, Channel 295B. Federal Communications Commission. John A. Karousos, Assistant Chief, Audio Division, Media Bureau. [FR Doc. E6-9473 Filed 6-20-06; 8:45 am] BILLING CODE 6712-01-P FEDERAL COMMUNICATIONS COMMISSION 47 CFR Part 73 [DA 06-1074; MB Docket No. 05-124; RM-11174] Radio Broadcasting Services; Killen, AL and Loretto, TN AGENCY: Federal Communications Commission. ACTION: Final rule. SUMMARY: The Audio Division, at the request of Pulaski Broadcasting, Inc., licensee of Station WKSR-FM, Channel 252C3, Killen, Alabama, deletes Channel 252C3 at Killen, Alabama, from the FM Table of Allotments, allots Channel 252C3 at Loretto, Tennessee, as the community's first local FM service, and modifies the license of Station WKSR-FM to specify operation on Channel 252C3 at Loretto. Channel 252C3 can be allotted to Loretto, Tennessee, in compliance with the Commission's minimum distance separation requirements with a site restriction of 13.8 km (8.5 miles) southwest of Loretto. The coordinates for Channel 252C3 at Loretto, Tennessee, are 35-00-47 North Latitude and 87-34-06 West Longitude. DATES: Effective July 17, 2006. FOR FURTHER INFORMATION CONTACT: Deborah Dupont, Media Bureau,

(202)418-2180. SUPPLEMENTARY INFORMATION: This is a synopsis of the Commission's *Report and Order* , MB Docket No. 05-124, adopted May 31, 2006, and released June 2, 2006. The full text of this Commission decision is available for inspection and copying during normal business hours in the FCC Reference Information Center, Portals II, 445 12th Street, SW., Room CY-A257, Washington, DC 20554. The complete text of this decision also may be purchased from the Commission's duplicating contractor, Best Copy and Printing, Inc., 445 12th Street, SW., Room CY-B402, Washington, DC 20554,

(800)378-3160, or via the company's Web site, *www.bcpiweb.com.* The Commission will send a copy of this *Report and Order* in a report to be sent to Congress and the Government Accountability Office pursuant to the Congressional Review Act, *see* 5 U.S.C. 801(a)(1)(A). List of Subjects in 47 CFR Part 73 Radio, Radio broadcasting. For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR Part 73 as follows: PART 73—RADIO BROADCAST SERVICES 1. The authority citation for part 73 continues to read as follows: Authority: 47 U.S.C. 154, 303, 334, 336. § 73.202 [Amended] 2. Section 73.202(b), the Table of FM Allotments under Alabama is amended by removing Killen, Channel 252C3. 3. Section 73.202(b), the Table of FM Allotments under Tennessee is amended by adding Loretto, Channel 252C3. Federal Communications Commission. John A. Karousos, Assistant Chief, Audio Division, Media Bureau. [FR Doc. E6-9741 Filed 6-20-06; 8:45 am] BILLING CODE 6712-01-P FEDERAL COMMUNICATIONS COMMISSION 47 CFR Part 73 [DA 06-1186; MB Docket No. 06-51; RM-11317] Radio Broadcasting Services; Frisco City, AL AGENCY: Federal Communications Commission. ACTION: Final rule. SUMMARY: In response to a *Notice of Proposed Rule Making* , this *Report and Order* allots Channel 278A to Frisco City, Alabama. The coordinates for Channel 278A at Frisco City, Alabama are 31-27-42 NL and 87-32-29 WL, with a site restriction of 13.7 kilometers (8.5 miles) west of Frisco City. DATES: Effective July 17, 2006. ADDRESSES: Federal Communications Commission, 445 12th Street, SW., Washington, DC 20554. FOR FURTHER INFORMATION CONTACT: R. Barthen Gorman, Media Bureau,

(202)418-2180. SUPPLEMENTARY INFORMATION: This is a synopsis of the Commission's *Report and Order* , MB Docket No. 06-51, adopted May 31, 2006, and released June 2, 2006. The full text of this Commission decision is available for inspection and copying during normal business hours in the FCC's Reference Information Center at Portals II, 445 12th Street, SW., Room CY-A257, Washington, DC 20554. The document may also be purchased from the Commission's duplicating contractor, Best Copy and Printing, Inc., Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC 20554, telephone 1-800-378-3160 or *www.BCPIWEB.com* . The Commission will send a copy of this Report and Order in a report to be sent to Congress and the Government Accountability Office pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A). List of Subjects in 47 CFR Part 73 Radio, Radio broadcasting. As stated in the preamble, the Federal Communications Commission amends 47 CFR Part 73 as follows: PART 73—RADIO BROADCAST SERVICES 1. The authority citation for part 73 reads as follows: Authority: 47 U.S.C. 154, 303, 334, 336. § 73.202 [Amended] 2. Section 73.202(b), the Table of FM Allotments under Alabama, is amended by adding Frisco City, Channel 278A. Federal Communications Commission. John A. Karousos, Assistant Chief, Audio Division, Media Bureau. [FR Doc. E6-9742 Filed 6-20-06; 8:45 am] BILLING CODE 6712-01-P FEDERAL COMMUNICATIONS COMMISSION 47 CFR Part 73 [DA 06-1187; MB Docket No. 06-59; RM-11319] Radio Broadcasting Services; Gravette, Arkansas, and Southwest City, MO AGENCY: Federal Communications Commission. ACTION: Final rule. SUMMARY: The Audio Division, at the request of KERM, Inc., licensee of Station KURM-FM, Channel 262A, Southwest City, Missouri, deletes Channel 262A at Southwest City, Missouri, from the FM Table of Allotments, allots Channel 262A at Gravette, Arkansas, as the community's first local FM service, and modifies the license of Station KURM-FM to specify operation on Channel 262A at Gravette, Arkansas. Channel 262A can be allotted to Gravette, Arkansas, in compliance with the Commission's minimum distance separation requirements with a site restriction of 5.4 km (3.4 miles) west of Gravette. The coordinates for Channel 262A at Gravette, Arkansas, are 36-25-54 North Latitude and 94-30-46 West Longitude. DATES: Effective July 17, 2006. FOR FURTHER INFORMATION CONTACT: Deborah Dupont, Media Bureau,

(202)418-2180. SUPPLEMENTARY INFORMATION: This is a synopsis of the Commission's *Report and Order,* MB Docket No. 06-59, adopted May 31, 2006, and released June 2, 2006. The full text of this Commission decision is available for inspection and copying during normal business hours in the FCC Reference Information Center, Portals II, 445 12th Street, SW., Room CY-A257, Washington, DC 20554. The complete text of this decision also may be purchased from the Commission's duplicating contractor, Best Copy and Printing, Inc., 445 12th Street, SW., Room CY-B402, Washington, DC 20554,

(800)378-3160, or via the company's Web site, *www.bcpiweb.com.* The Commission will send a copy of this *Report and Order* in a report to be sent to Congress and the Government Accountability Office pursuant to the Congressional Review Act, see U.S.C. 801(a)(1)(A). List of Subjects in 47 CFR Part 73 Radio, Radio broadcasting. As stated in the preamble, the Federal Communications Commission amends 47 CFR Part 73 as follows: PART 73—RADIO BROADCAST SERVICES 1. The authority citation for part 73 continues to read as follows: Authority: 47 U.S.C. 154, 303, 334, 336. § 73.202 [Amended] 2. Section 73.202(b), the Table of FM Allotments under Arkansas is amended by adding Gravette, Channel 262A. 3. Section 73.202(b), the Table of FM Allotments under Missouri is amended by removing Southwest City, Channel 262A. Federal Communications Commission. John A. Karousos, Assistant Chief, Audio Division Media Bureau. [FR Doc. E6-9471 Filed 6-20-06; 8:45 am] BILLING CODE 6712-01-P FEDERAL COMMUNICATIONS COMMISSION 47 CFR Part 73 [DA 06-1188] Radio Broadcasting Services; Walnut Grove, MS AGENCY: Federal Communications Commission. ACTION: Final rule; denial of petition for reconsideration. SUMMARY: This document denies a Petition for Reconsideration filed by Crossgates Baptist Church directed at the staff letter action dismissing the Petition for Rulemaking requesting the reservation of vacant FM Channel 244C2 at Walnut Grove, Mississippi for noncommercial educational use. With this action, the proceeding is terminated. FOR FURTHER INFORMATION CONTACT: Rolanda F. Smith, Media Bureau

(202)418-2180. SUPPLEMENTARY INFORMATION: This is a synopsis of the Commission's *Memorandum Opinion and Order,* adopted May 31, 2006, and released June 2, 2006. The full text of this decision is available for inspection and copying during normal business hours in the FCC Reference Information Center at Portals ll, CY-A257, 445 12th Street, SW., Washington, DC. The complete text of this decision may also be purchased from the Commission's copy contractor, Best Copy and Printing, Inc., 445 12th Street, SW., Room CY-B402, Washington, DC 20054, telephone 1-800-378-3160 or *www.BCPIWEB.com.* The Commission will not send a copy of this *Memorandum Opinion and Order* pursuant to the Congressional Review Act, *see* 5 U.S.C. 801(a)(1)(A), because the aforementioned petition for reconsideration was denied. Federal Communications Commission. John A. Karousos, Assistant Chief, Audio Division Media Bureau. [FR Doc. E6-9472 Filed 6-20-06; 8:45 am] BILLING CODE 6712-01-P DEPARTMENT OF TRANSPORTATION Office of the Secretary of Transportation 49 CFR Part 1 [Docket No.:OST-1999-6189] RIN 9991-AA50 Organization and Delegation of Powers and Duties AGENCY: Office of the Secretary of Transportation (OST), U.S. Department of Transportation (DOT). ACTION: Correction of final rule. SUMMARY: This action corrects a final rule published in the **Federal Register** on May 31, 2006 (71 FR 30828), which delegated various authorities vested in the Secretary of Transportation by the “Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users” (Pub. L. 109-59) and other laws to the Research and Innovative Technology Administrator; the Federal Aviation Administrator; the Federal Highway Administrator; the Federal Railroad Administrator; the National Traffic Highway Safety Administrator; the Federal Transit Administrator; the Pipeline and Hazardous Materials Safety Administrator; the Federal Motor Carrier Safety Administrator; and the Under Secretary for Transportation Policy. DATES: *Effective Date:* June 21, 2006. FOR FURTHER INFORMATION CONTACT: Rebecca S. Behravesh, Attorney Advisor, Office of General Counsel, Department of Transportation, 400 7th St., SW., Room 10424, Washington, DC 20590-0001; Telephone

(202)366-9314. Correction to Final Rule The Office of the Secretary of Transportation

(OST)hereby corrects two typographical errors in the final rule that was published in the **Federal Register** on May 31, 2006 (71 FR 30830), Organization and Delegation of Powers and Duties, Docket No. OST-1999-6189. On page 30830 of volume 71 of the **Federal Register** , instruction 5 is corrected to read as follows: “Revise § 1.46(c), (d), (e), and

(i)and add

(l)and

(m)to read as follows:”. On page 30833 of volume 71 of the **Federal Register** , instruction 10(c) is corrected to read as follows: “Revise paragraph (b)(1) to read as follows:”. Issued this 13th day of June, 2006, at Washington, DC. Jeffrey A. Rosen, General Counsel. [FR Doc. E6-9731 Filed 6-16-06; 8:45 am] BILLING CODE 4910-9X-P DEPARTMENT OF TRANSPORTATION National Highway Traffic Safety Administration 49 CFR Parts 571, 575, and 582 [Docket No. NHTSA-2005-21564; Notice 2] Vehicle Safety Hotline; Child Restraint Systems; Technical Amendment AGENCY: National Highway Traffic Safety Administration (NHTSA), Department of Transportation (DOT). ACTION: Technical amendment. SUMMARY: On June 21, 2005, NHTSA published a final rule that made technical amendments to several regulations that reference NHTSA's Vehicle Safety Hotline telephone number. The rule updated the Hotline telephone number and added our Web address to the information that NHTSA requires manufacturers and dealers to provide consumers. The effective date for those amendments to Part 571, *Federal motor vehicle safety standards,* Part 575, *Consumer information;* and Part 582, *Insurance cost information regulation,* is June 21, 2006. This document withdraws the June 21, 2005 amendments to part 571, in response to a request from General Motors and other motor vehicle manufacturers to have the effective date coincide with the traditional September 1 vehicle model year changeover date, this document changes the effective date of the amendments to September 1, 2006. DATES: This rule withdraws the amendments published at 70 FR 35556, June 21, 2005 to part 571. This rule delays the effective date of amendments to 49 CFR parts 575 and 582 published on June 21, 2005 from June 21, 2006 until September 1, 2006. The amendments to § 571.213 in this document are effective September 1, 2006. Voluntary compliance is permitted before that time. FOR FURTHER INFORMATION CONTACT: Deirdre Fujita, NHTSA Office of Chief Counsel, 400 Seventh Street, SW., Washington, DC 20590 (telephone 202-366-2992; fax 202-366-3820). SUPPLEMENTARY INFORMATION: In several regulations, NHTSA specifies that vehicle manufacturers, child restraint manufacturers or automobile dealers must provide the telephone number for our Vehicle Safety Hotline so that consumers concerned about safety recalls or potential defects could contact this agency. Because that telephone number has been updated to a toll-free number that can be used nationwide and to include a TTY number, on June 21, 2005, NHTSA amended the relevant sections of the CFR to use the new telephone number and to add our Web address so that consumers can access safety recall and defect information online (70 FR 35556; Docket 21564). We also updated text in the Part 582 (“Insurance Cost Information Regulation”) information form to reflect that our current New Car Assessment Program has information on side crash protection and relative rollover resistance. The effective date of the amended requirements pertaining to Parts 571, 575 and 582 was June 21, 2006. 1 1 The final rule also made similar changes to Part 577, “Defect and Noncompliance Notification,” section 577.5(g)(1)(vii). That section requires manufacturers to provide the agency's address and telephone number in notifications to the public of recall campaigns. Because that change could be made effective immediately without imposing any substantive burdens, the effective date for that change was July 21, 2005. Today's document does not affect the effective date for that Part 577 amendment. Vehicle Model Year Changeover We received a request from General Motors

(GM)asking that we change the effective date for certain aspects of the final rule, from June 21, 2006 to September 1, 2006 to coincide with traditional vehicle model year changeover (NHTSA-21564-2). Part 575 requires vehicle manufacturers to provide to first purchasers, among other things, information in the owner's manual on how they may contact NHTSA with concerns about potential safety-related defects (49 CFR 575.6(a)(2)). 2 GM explained that the vast majority of the owner's manuals would be printed with the information by June 21, 2006, but that there are certain low-volume vehicles that have owner's manuals that are printed in a single edition for which the entire quantity has already been printed. In addition, the petitioner stated, even for vehicles whose owners' manuals are typically printed in two editions during a model year, there might not be a second edition if original volume productions are not met. GM was concerned about the burden associated with producing and installing owner's manual supplements in 2006 model year vehicles produced after June 21, 2006 that have owner's manuals printed before that date. GM believed that our changing the effective date to September 1, 2006, while continuing to allow early compliance with the final rule, would eliminate the burden without adversely affecting the public's ability to contact the agency. The Alliance of Automobile Manufacturers (Alliance) filed a letter supporting GM's petition (NHTSA-21564-3). The Alliance urged NHTSA to allow manufacturers the 72 additional days to meet the amended requirements of Part 575. 2 If there is no owner's manual, the information is to be provided on a one-page document. We have examined the issues raised in the petition and have decided to delay the effective date of the technical amendments to parts 575 and 582 until September 1, 2006. We agree with the petitioner that a September 1, 2006 effective date will not adversely affect the public's ability to contact the agency. The vast majority of vehicles will have had their owner's manuals updated with the telephone numbers by this June 21, and this delay will only affect a number of smaller vehicle lines. Further, the former Auto Safety Hotline number (1-800-424-9393) can still be used to contact the agency. Child restraint manufacturers and automobile dealers will also be provided until September 1, 2006 to reference the updated telephone number and agency web address in the materials they produce. For those that use the September 1 traditional vehicle model year changeover date to revise their materials, this amendment provides flexibility in meeting the requirements. The amendment was not intended to impose or relax any substantive requirements or burdens on anyone. Not using a September 1, 2006, effective date to coincide with the traditional vehicle model year changeover was an oversight of the June 21, 2005 final rule which today's technical amendment corrects. Child Restraint Labeling This document also makes a technical amendment to the regulatory text of the June 21, 2005 final rule pertaining to Federal Motor Vehicle Safety Standard (FMVSS) No. 213, “Child restraint systems.” The regulatory text of the June 21, 2005 is amended to reflect labeling and other changes to FMVSS No. 213 adopted by a September 9, 2005 final rule that permitted information regarding online product registration to be included in child restraint product information, including child restraint labels and owner registration forms (70 FR 53569; Docket 22324). This technical amendment makes consistent the regulatory texts of the June 21, 2005 and September 2, 2005 final rules amending FMVSS No. 213. 3 3 The September 2, 2005 final rule noted that the June 21, 2005 final rule had changed the Hotline number required to be included on the labels of child restraints and in printed instructions (70 FR at 53573). List of Subjects in 49 CFR Part 571 Motor vehicle safety, Reporting and recordkeeping requirements, Tires. PART 571—FEDERAL MOTOR VEHICLE SAFETY STANDARDS In consideration of the foregoing, NHTSA is withdrawing the amendments to part 571 published at 70 FR 35556, June 21, 2005. The effective date of the amendments published at 70 FR 35556, June 21, 2005 to parts 575 and 582 is delayed until September 1, 2006. In further consideration of the foregoing NHTSA is amending 49 CFR part 571 as follows: 1. The authority citation for Part 571 continues to read as follows: Authority: 49 U.S.C. 322, 30111, 30115, 30117, and 30166; delegation of authority at 49 CFR 1.50. 2. Section 571.213 is amended to revise paragraph

(m)of S5.5.2, S5.5.5 (k), S5.6.1.7, and S5.6.2.2 to read as follows: § 571.213 Standard No. 213; Child restraint systems. S5.5.2 * * *

(m)One of the following statements, inserting an address and a U.S. telephone number. If a manufacturer opts to provide a Web site on the registration card as permitted in Figure 9a of this section, the manufacturer must include the statement in part (ii):

(i)“Child restraints could be recalled for safety reasons. You must register this restraint to be reached in a recall. Send your name, address, e-mail address if available (preceding four words are optional) and the restraint's model number and manufacturing date to ( *insert address* ) or call ( *insert a U.S. telephone number* ). For recall information, call the U.S. Government's Vehicle Safety Hotline at 1-888-327-4236 (TTY: 1-800-424-9153), or go to *http://www.NHTSA.gov.* ”

(ii)“Child restraints could be recalled for safety reasons. You must register this restraint to be reached in a recall. Send your name, address, e-mail address if available [preceding four words are optional], and the restraint's model number and manufacturing date to ( *insert address* ) or call ( *insert a U.S. telephone number* ) or register online at ( *insert Web site for electronic registration form* ). For recall information, call the U.S. Government's Vehicle Safety Hotline at 1-888-327-4236 (TTY: 1-800-424-9153), or go to *http://www.NHTSA.gov.* ” S5.5.5 * * *

(k)One of the following statements, inserting an address and a U.S. telephone number. If a manufacturer opts to provide a Web site on the registration card as permitted in Figure 9a of this section, the manufacturer must include the statement in part (ii):

(i)“Child restraints could be recalled for safety reasons. You must register this restraint to be reached in a recall. Send your name, address, e-mail address if available (preceding four words are optional), and the restraint's model number and manufacturing date to ( *insert address* ) or call ( *insert a U.S. telephone number* ). For recall information, call the U.S. Government's Vehicle Safety Hotline at 1-888-327-4236 (TTY: 1-800-424-9153), or go to *http://www.NHTSA.gov.* ”

(i)“Child restraints could be recalled for safety reasons. You must register this restraint to be reached in a recall. Send your name, address, e-mail address if available (preceding four words are optional), and the restraint's model number and manufacturing date to *(insert address* ) or call ( *insert a U.S. telephone number* ). For recall information, call the U.S. Government's Vehicle Safety Hotline at 1-888-327-4236 (TTY: 1-800-424-9153), or go to *http://www.NHTSA.gov.”*

(ii)“Child restraints could be recalled for safety reasons. You must register this restraint to be reached in a recall. Send your name, address, e-mail address if available (preceding four words are optional), and the restraint's model number and manufacturing date to ( *insert address* ) or call ( *insert U.S. telephone number* ) or register online at ( *insert Web site for electronic registration form* ). For recall information, call the U.S. Government's Vehicle Safety Hotline at 1-888-327-4236 (TTY: 1-800-424-9153), or go to *http://www.NHTSA.gov.”* Issued: June 13, 2006. Stephen R. Kratzke, Associate Administrator for Rulemaking. [FR Doc. E6-9582 Filed 6-20-06; 8:45 am] BILLING CODE 4910-59-P 71 119 Wednesday, June 21, 2006 Proposed Rules OFFICE OF PERSONNEL MANAGEMENT 5 CFR Part 451 RIN 3206-AL06 Awards AGENCY: Office of Personnel Management. ACTION: Proposed rule. SUMMARY: The Office of Personnel Management is issuing proposed regulations regarding the employee awards program. These revisions clarify the use of performance-based cash awards by providing that such awards programs, as designed and applied, must make meaningful distinctions based on levels of performance. This proposed change is designed to ensure that better performers receive greater recognition. DATES: Comments must be received on or before July 21, 2006. ADDRESSES: Send or deliver written comments to Jerome D. Mikowicz, Acting Deputy Associate Director for Pay and Performance Policy, Office of Personnel Management, Room 7H31, 1900 E Street, NW., Washington, DC 20415; FAX:

(202)606-4264; or e-mail: *pay-performance-policy@opm.gov.* FOR FURTHER INFORMATION CONTACT: Barbara Colchao,

(202)606-2720, FAX:

(202)606-4264, or e-mail: *pay-performance-policy@opm.gov.* SUPPLEMENTARY INFORMATION: OPM is proposing to amend the incentive awards regulations in part 451 of title 5, Code of Federal Regulations, to ensure effective application of the merit system principles and related appraisal and incentive awards requirements and authorities. This amendment would clarify that agencies using the incentive awards authorities in chapter 45 of title 5, United States Code, to grant employees performance-based cash awards on the basis of a summary rating of record of “fully successful” or above must ensure that such cash awards reflect meaningful distinctions based on levels of performance. In other words, when agencies grant rating-based awards, employees with higher performance ratings must be granted larger cash awards, as a percentage of basic pay, than those with lower ratings. This amendment is consistent with the merit system principle at 5 U.S.C. 2302(b)(3), which states, in part, “appropriate incentives and recognition should be provided for excellence in performance.” Further, the requirements in 5 U.S.C. chapter 43 regarding appraisal of employee performance state that the results of performance appraisal shall be used as a basis for rewarding employees “whose performance so warrants.” Taken together, these requirements are not reasonably met by providing uniform amounts as performance-based cash awards irrespective of differences in summary performance ratings. OPM is mindful that many agencies already use established performance-based awards programs that fully comport with the proposed regulatory requirement. Nonetheless, the importance of linking rating-based rewards to measured performance in a way that supports the merit system principle warrants this amendment to the awards regulations. In addition, OPM is proposing to clarify that a rating of record used as the basis for a performance-based cash award must be at the fully successful level (or equivalent) or higher. The statute at 5 U.S.C. 4505a already establishes this threshold for rating-based cash awards granted to General Schedule employees and to other employees in certain circumstances. These amendments to the incentive awards regulations would make no changes in regulations governing Senior Executive Service performance awards granted under 5 U.S.C. 5384 and 5 CFR 534.405. Waiver of 60-Day Comment Period for Proposed Rulemaking Pursuant to 5 U.S.C. 553(b)(3)(B), I find that good cause exists to waive the 60-day comment period for general notice of proposed rulemaking. Limiting the comment period for the proposed regulations to 30 days will enable OPM to issue final regulations at the time when most agencies are making their awards decisions, which will give practical effect to these regulations. E.O. 12866, Regulatory Review This rule has been reviewed by the Office of Management and Budget as a significant regulatory action in accordance with E.O. 12866. Regulatory Flexibility Act I certify that these regulations would not have a significant economic impact on a substantial number of small entities because they would apply only to Federal agencies and employees. List of Subjects in 5 CFR Part 451 Decorations, Medals, Awards, Government employees. Office of Personnel Management. Linda M. Springer, Director. Accordingly, OPM is proposing to revise part 451 of title 5 of the Code of Federal Regulations as follows: PART 451—AWARDS 1. The authority citation for part 451 continues to read as follows: Authority: 5 U.S.C. 4302, 4501-4509; E.O. 11438, 33 FR 18085, 3 CFR, 1966-1970 Comp., p. 755; E.O. 12828, 58 FR 2965, 3 CFR, 1993 Comp., p. 569. Subpart A—Agency Awards 2. In § 451.101, paragraph

(e)is revised to read as follows: § 451.101 Authority and coverage.

(e)An agency may grant performance-based cash awards on the basis of a rating of record at the fully successful level (or equivalent) or above under the authority of 5 U.S.C. 4505a and the provisions of this part to eligible non-GS employees who are covered by 5 U.S.C. chapter 45 and this part and who are not otherwise covered by an explicit statutory authority for the payment of such awards, including 5 U.S.C. 5384 (SES performance awards). 3. In § 451.104, paragraph (a)(3) is revised and a new paragraph

(h)is added to read as follows: § 451.104 Awards.

(a)* * *

(3)Performance as reflected in the employee's most recent rating of record (as defined in § 430.203 of this chapter), provided that the rating of record is at the fully successful level (or equivalent) or above, except that performance awards may be paid to SES members only under § 534.405 of this chapter and not on the basis of this subpart.

(h)Programs for granting performance-based cash awards on the basis of a rating of record at the fully successful level (or equivalent) or above, as designed and applied, must make meaningful distinctions based on levels of performance. [FR Doc. E6-9797 Filed 6-20-06; 8:45 am] BILLING CODE 6325-39-P DEPARTMENT OF AGRICULTURE Agricultural Marketing Service 7 CFR Part 930 [Docket No. FV06-930-2 PR] Tart Cherries Grown in the States of Michigan, et al.; Increased Assessment Rate AGENCY: Agricultural Marketing Service, USDA. ACTION: Proposed rule. SUMMARY: This rule would increase the assessment rate established for the Cherry Industry Administrative Board (Board) for the 2006-2007 fiscal year and subsequent fiscal years from $0.0021 to $0.0066 per pound to fund the Board's administrative expenses and its new research and promotion program. Authorization to assess tart cherry handlers enables the Board to incur expenses that are reasonable and necessary to administer the program. The Board locally administers the marketing order which regulates the handling of tart cherries grown in the States of Michigan, New York, Pennsylvania, Oregon, Utah, Washington, and Wisconsin. The fiscal year begins July 1, 2006 and ends June 30, 2007. The assessment rate will remain in effect indefinitely unless modified, suspended, or terminated. DATES: Comments must be received by July 11, 2006. ADDRESSES: Interested persons are invited to submit written comments concerning this action. Comments must be sent to the Docket Clerk, Fruit and Vegetable Programs, AMS, USDA, 1400 Independence Avenue, SW., STOP 0237, Washington, DC 20250-0237; Fax:

(202)720-8938, or E-mail: *moabdocket.clerk@usda.gov.* All comments should reference the docket number and the date and page number of this issue of the **Federal Register** and will be made available for public inspection in the Office of the Docket Clerk during regular business hours or can be viewed at: *http://www.ams/usda.gov/fv/moab/html.* FOR FURTHER INFORMATION CONTACT: Dawana J. Clark or Kenneth G. Johnson, DC Marketing Field Office, Fruit and Vegetable Programs, AMS, USDA, Unit 155, 4700 River Road, Riverdale, Maryland 20737; telephone:

(301)734-5243, Fax:

(301)734-5275. Small businesses may request information on complying with this regulation by contacting Jay Guerber, Marketing Order Administration Branch, Fruit and Vegetable Programs, AMS, USDA, 1400 Independence Avenue, SW., STOP 0237, Washington, DC 20250-0237; telephone:

(202)720-2491, Fax:

(202)720-8938, or e-mail: *Jay.Guerber@usda.gov.* SUPPLEMENTARY INFORMATION: This rule is issued under Marketing Agreement and Order No. 930, as amended (7 CFR part 930), regulating the handling of tart cherries produced in the States of Michigan, New York, Pennsylvania, Oregon, Utah, Washington, and Wisconsin, hereinafter referred to as the “order.” The order is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.” The Department of Agriculture

(USDA)is issuing this rule in conformance with Executive Order 12866. This rule has been reviewed under Executive Order 12988, Civil Justice Reform. Under the marketing order now in effect, tart cherries are subject to assessments. Funds to administer the order are derived from such assessments. It is intended that the assessment rate as issued herein will be applicable to all assessable tart cherries beginning July 1, 2006, and continue until amended, suspended, or terminated. This rule will not preempt any State or local laws, regulations, or policies, unless they present an irreconcilable conflict with this rule. The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 608c(15)(A) of the Act, any handler subject to an order may file with the USDA a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with law and request a modification of the order or to be exempted therefrom. Such handler is afforded the opportunity for a hearing on the petition. After the hearing the USDA would rule on the petition. The Act provides that the district court of the United States in any district in which the handler is an inhabitant, or has his or her principal place of business, has jurisdiction to review the USDA's ruling on the petition, provided an action is filed not later than 20 days after the date of the entry of the ruling. This rule would increase the assessment rate established for the Board for the 2006-2007 and subsequent fiscal years for tart cherries from $0.0021 to $0.0066 per pound of tart cherries to fund the Board's administrative expenses and its new research and promotion program. The tart cherry marketing order provides authority for the Board, with approval of USDA, to formulate an annual budget of expenses and collect assessments from handlers to administer the program. The members of the Board are producers and handlers of tart cherries. They are familiar with the Board's needs and with the costs for goods and services in their local area and are thus in a position to formulate an appropriate budget and assessment rate. The assessment rate is formulated and discussed in a public meeting. Thus, all directly affected persons have an opportunity to participate and provide input. Authority to fix the rate of assessment to be paid by each handler and to collect such assessment appears in § 930.41 of the order. In addition, § 930.48 of the order provides that the Board, with the approval of the USDA, may establish or provide for the establishment of production research, marketing research, and market development projects designed to assist, improve, or promote the marketing, distribution, consumption, or efficient production of cherries. The expense of such projects is paid from funds collected pursuant to § 930.41 (Assessments), or from such other funds as approved by the USDA. For the 2003-2004 fiscal year, the Board recommended, and USDA approved, an assessment rate of $0.0021 per pound of tart cherries handled that would continue in effect from fiscal period to fiscal period unless modified, suspended, or terminated by USDA upon recommendation and information submitted by the Board or other information available to USDA. The Board met on March 16, 2006, and recommended 2006-2007 expenditures of $1,523,000 and an assessment rate of $0.0066 per pound of tart cherries. Eighteen of the nineteen Board members voted in support of the assessment rate increase. One Board seat is vacant. In comparison, last year's budgeted expenses were $488,000. The assessment rate of $0.0066 is $0.0045 higher than the rate currently in effect. The Board recommended that the assessment rate be increased to cover its administrative expenses and fund a new research and promotion program which will commence in Fall 2006. The proposed $0.0066 assessment rate would cover the costs of the research and promotion program which would be assessed at $.005 per pound (or $10 per ton) of cherries for processing and $.0016 per pound for administrative expenses. The $0.0016 per pound for administrative expenses would be a reduction from the 2005-2006 assessment rate of $0.0021 per pound. The Board believes that its new research and promotion program is the best way for the industry to develop both stronger demand for tart cherries and tart cherry products and increase sales opportunities. According to a recent Board survey, both growers and handlers believe a research and promotion program would benefit the industry. This program would be directed primarily at consumers and retail nutrition advisors, and employ promotional strategies, such as print advertising. All tart cherry handlers regulated under the marketing order would pay the proposed assessment rate to fund the new research and promotion program. However, certain organic handlers may be exempt from paying assessments for market promotion activities pursuant to 7 CFR 900.700. The major expenditures recommended by the Board for the 2006-2007 year include $1,150,000 for promotion, $169,000 for personnel, $82,000 for meetings, $77,000 for office expenses, $20,000 for compliance, and $5,000 for industry educational efforts. Budgeted expenses for major items in 2005-2006 were $159,000 for personnel, $150,000 for compliance, $81,000 for meetings, $93,000 for office expenses, and $5,000 for industry educational efforts. The Board recommended an increased assessment rate to generate larger revenue to meet its expenses and keep its reserves at an acceptable level. In deriving the recommended assessment rate, the Board determined assessable tart cherry production for the fiscal period at 230 million pounds. Therefore, total assessment income for 2006-2007 is estimated at $1,518,000 (230 million pounds × $0.0066). This amount plus adequate funds in the reserve and interest income would be adequate to cover budgeted expenses. Funds in the reserve (approximately $411,000) would be kept within the approximately six months' operating expenses as recommended by the Board consistent with § 930.42(a). The assessment rate established in this rule would continue in effect indefinitely unless modified, suspended, or terminated by USDA upon recommendation and other information submitted by the Board or other available information. Although the assessment rate would be effective for an indefinite period, the Board would continue to meet prior to or during each fiscal period to recommend a budget of expenses and consider recommendations for modification of the assessment rate. The dates and times of Board meetings are available from the Board or the USDA. Board meetings are open to the public and interested persons may express their views at these meetings. USDA will evaluate Board recommendations and other available information to determine whether modification of the assessment rate is needed. Further rulemaking would be undertaken as necessary. The Board's 2006-2007 budget and those for subsequent fiscal periods would be reviewed and, as appropriate, approved by the USDA. Initial Regulatory Flexibility Analysis Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA), the Agricultural Marketing Service

(AMS)has considered the economic impact of this action on small entities. Accordingly, AMS has prepared this initial regulatory flexibility analysis. The purpose of the RFA is to fit regulatory actions to the scale of business subject to such actions in order that small businesses will not be unduly or disproportionately burdened. Marketing orders issued pursuant to the Act, and rules thereunder, are unique in that they are brought about through group action of essentially small entities acting on their own behalf. Thus, both statutes have small entity orientation and compatibility. There are approximately 40 handlers of tart cherries who are subject to regulation under the tart cherry marketing order and approximately 900 producers of tart cherries in the regulated area. Small agricultural service firms, which includes handlers, are defined by the Small Business Administration (13 CFR 121.201) as those having annual receipts of less than $6,500,000, and small agricultural producers are defined as those having annual receipts of less than $750,000. The majority of producers and handlers of tart cherries under the order are considered small entities under SBA's standards. The principal demand for tart cherries is in the form of processed products. Tart cherries are dried, frozen, canned, juiced, and pureed. During the period 2001/2002 through 2005/2006, approximately 93.8 percent of the U.S. tart cherry crop, or 214.3 million pounds, was processed annually. Of the 214.3 million pounds of tart cherries processed, 62 percent was frozen, 26 percent was canned, and 12 percent was utilized for juice and other products. Based on National Agricultural Statistics Service data, acreage in the United States devoted to tart cherry production has been trending downward. Bearing acreage has declined from a high of 50,050 acres in 1987/99 to 37,100 acres in 2005/2006. This represents a 26 percent decrease in total bearing acres. Michigan leads the nation in tart cherry acreage with 74 percent of the total and produces about 72 percent of the U.S. tart cherry crop each year. This rule would increase the assessment rate established for the Board and collected from handlers for the 2006-2007 and subsequent fiscal periods from $.0021 to $.0066 per pound of tart cherries. The Board discussed continuing the existing assessment rate, but concluded that it needed the additional funds to devote to its research and promotion program which would be funded through assessments. This action would increase the assessment obligation imposed on handlers. While assessments impose some additional costs on handlers, the costs are minimal and uniform on all handlers. Some of the additional costs may be passed on to producers. However, these costs will be offset by the benefits derived by the operation of the marketing order. In addition, the Board's meeting was widely publicized throughout the tart cherry industry and all interested persons were invited to attend the meeting and participate in Board deliberations on all issues. Like all Board meetings, all entities, both large and small, were able to express views on this issue. Finally, interested persons are invited to submit information on the regulatory and informational impacts of this action on small businesses. This proposed rule would impose no additional reporting or recordkeeping requirements on either small or large tart cherry handlers. As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies. AMS is committed to compliance with the Government Paperwork Elimination Act (GPEA), which requires Government agencies in general to provide the public the option of submitting information or transacting business electronically to the maximum extent possible. USDA has not identified any relevant Federal rules that duplicate, overlap, or conflict with this rule. A small business guide on complying with fruit, vegetable, and specialty crop marketing agreements and orders may be viewed at the following Web site: *http://www.ams.usda.gov/fv/moab.html.* Any questions about the compliance guide should be sent to Jay Guerber at the previously mentioned address in the FOR FURTHER INFORMATION CONTACT section. A 20-day comment period is provided to allow interested persons to respond to this proposed rule. Twenty days is deemed appropriate because:

(1)The 2006-2007 fiscal period begins July 1, 2006, and the marketing order requires that the rate of assessment for each fiscal year apply to all assessable tart cherries handled during such period;

(2)the Board needs to have sufficient funds to pay its expenses which are incurred on a continuous basis; and

(3)handlers are aware of this action which was recommended by the Board at a public meeting. List of Subjects in 7 CFR Part 930 Marketing agreements, Reporting and recordkeeping requirements, Tart cherries. For the reasons set forth in the preamble, 7 CFR part 930 is proposed to be amended as follows: PART 930—TART CHERRIES GROWN IN THE STATES OF MICHIGAN, NEW YORK, PENNSYLVANIA, OREGON, UTAH, WASHINGTON, AND WISCONSIN 1. The authority citation for 7 CFR part 930 continues to read as follows: Authority: 7 U.S.C. 601-674. 2. Section 930.200 is revised to read as follows: § 930.200 Assessment rate. On and after July 1, 2006, the assessment rate imposed on handlers shall be $0.0066 per pound of tart cherries grown in the production area and utilized in the production of tart cherry products. Included in this rate is $.005 per pound of cherries to cover the costs of the new research and promotion program and $.0016 per pound of cherries to cover administrative expenses. Dated: June 15, 2006. Lloyd C. Day, Administrator, Agricultural Marketing Service. [FR Doc. E6-9727 Filed 6-20-06; 8:45 am] BILLING CODE 3410-02-P DEPARTMENT OF THE TREASURY 31 CFR Part 103 RIN 1506-AA86 FEDERAL RESERVE SYSTEM 12 CFR Part 219 [Regulation S, Docket No. R-1258] Threshold for the Requirement To Collect, Retain, and Transmit Information on Funds Transfers and Transmittals of Funds AGENCIES: Financial Crimes Enforcement Network, Department of the Treasury; Board of Governors of the Federal Reserve System. ACTION: Joint advance notice of proposed rulemaking (Advance Notice). SUMMARY: The Financial Crimes Enforcement Network (FinCEN) of the Department of the Treasury (Treasury) and the Board of Governors of the Federal Reserve System (Board) are reviewing the threshold in the rule requiring banks and nonbank financial institutions to collect and retain information on funds transfers and transmittals of funds. FinCEN is reviewing the threshold in the rule requiring banks and nonbank financial institutions to transmit information on funds transfers and transmittals of funds. The requirement to collect, retain, and transmit information on funds transfers and transmittals of funds applies only to funds transfers and transmittals of funds in amounts of $3,000 or more. FinCEN and the Board (collectively, the Agencies) request comment from the public, including law enforcement and financial institutions, to assess whether the potential benefit to law enforcement of a lower threshold outweighs the potential burden to financial institutions. DATES: Written comments on this Advance Notice may be submitted on or before August 21, 2006. ADDRESSES: *FinCEN:* You may submit comments, identified by Regulatory Identification Number

(RIN)1506-AA86, by any of the following methods: • *Federal E-rulemaking Portal:* *http://www.regulations.gov.* Follow the instructions for submitting comments. Include 1506-AA86 in the submission. • *E-mail:* *regcomments@fincen.treas.gov.* Include 1506-AA86 in the subject line of the message. • *Mail:* FinCEN, P.O. Box 39, Vienna, VA 22183. Include 1506-AA86 in the body of the text. All comments received will be posted without change to *http://www.fincen.gov.* Your comments will not be edited to remove identifying, contact, or other personal information. Comments may be inspected in the FinCEN reading room between 10 a.m. and 4 p.m. in Washington, DC. Persons wishing to inspect comments must request an appointment by telephone at

(202)354-6400 (not a toll-free number). *Board:* You may submit comments, identified by Docket No. R-1258, by any of the following methods: • *Agency Web site:* *http://www.federalreserve.gov.* Follow the instructions for submitting comments at *http://www.federalreserve.gov/generalinfo/foia/ProposedRegs.cfm.* • *Federal E-Rulemaking Portal: http://www.regulations.gov.* Follow the instructions for submitting comments. • *E-mail:* *regs.comments@federalreserve.gov.* • *Fax:*

(202)452-3819 or

(202)452-3102. • *Mail:* Jennifer J. Johnson, Secretary, Board of Governors of the Federal Reserve System, 20th Street and Constitution Avenue, NW., Washington, DC 20551. All public comments are available from the Board's Web site at *http://www.federalreserve.gov/generalinfo/foia/ProposedRegs.cfm,* as submitted, unless modified for technical reasons. Accordingly, your comments will not be edited to remove any identifying or contact information. Public comments may also be viewed electronically or in paper in Room MP-500 of the Board's Martin Building (20th and C Streets, NW.) between 9 a.m. and 5 p.m. on weekdays. FOR FURTHER INFORMATION CONTACT: *FinCEN:* Regulatory Policy and Programs Division, Financial Crimes Enforcement Network,

(800)949-2732. *Board:* James K. Owens, Manager,

(202)728-5848, Division of Reserve Bank Operations and Payment Systems, Suzanne L. Williams, Manager,

(202)452-3513, Division of Banking Supervision and Regulation, or Christopher W. Clubb, Senior Counsel,

(202)452-3904, Legal Division. For the hearing impaired only: Telecommunications Device for the Deaf,

(202)263-4869. SUPPLEMENTARY INFORMATION: I. Background A. Statutory and Regulatory Background The Bank Secrecy Act

(BSA)(Pub. L. 91-508, codified at 12 U.S.C. 1829b and 1951-1959, and 31 U.S.C. 5311-5314 and 5316-5332) authorizes the Secretary of the Treasury (Secretary) to require financial institutions to keep records and file reports that the Secretary determines have a high degree of usefulness in criminal, tax, or regulatory investigations or proceedings, or in intelligence or counterintelligence matters to protect against terrorism. The authority of the Secretary to administer the BSA has been delegated to the Director of FinCEN. The BSA was amended by the Annunzio-Wylie Anti-Money Laundering Act of 1992 (Pub. L. 102-550) (Annunzio-Wylie). Annunzio-Wylie authorizes the Secretary and the Board to jointly issue regulations requiring insured depository institutions to maintain records of domestic funds transfers. 1 In addition, Annunzio-Wylie authorizes the Secretary and the Board to jointly issue regulations requiring insured depository institutions and certain nonbank financial institutions to maintain records of international funds transfers and transmittals of funds. 2 Annunzio-Wylie requires the Secretary and the Board, in issuing regulations for international funds transfers and transmittals of funds, to consider the usefulness of the records in criminal, tax, or regulatory investigations or proceedings, and the effect of the regulations on the cost and efficiency of the payments system. 3 1 12 U.S.C. 1829b(b)(2). The Treasury—and not the Board—is authorized to issue regulations requiring nonbank financial institutions to maintain records of domestic transmittals of funds. 2 12 U.S.C. 1829b(b)(3). The terms “funds transfer,” “originator,” “beneficiary,” and “payment order” apply only in the context of banks. The term “transmittal of funds” includes a funds transfer and its counterpart in the context of nonbank financial institutions. *See* 31 CFR 103.11(jj). Transmittors, recipients, and transmittal orders in the context of nonbank financial institutions play the same role as originators, beneficiaries, and payment orders in the context of banks. 3 12 U.S.C. 1829b(b)(3). On January 3, 1995, the Agencies jointly issued a recordkeeping rule that requires banks and nonbank financial institutions to collect and retain information on funds transfers and transmittals of funds in amounts of $3,000 and more. 4 At the same time, FinCEN issued a rule—the travel rule—that requires banks and nonbank financial institutions to transmit information on funds transfers and transmittals of funds to other banks or nonbank financial institutions. 5 The recordkeeping rule is codified at 31 CFR 103.33(e) and (f), 6 and the travel rule is codified at 31 CFR 103.33(g). 7 4 60 FR 220-01 Jan. 3, 1995. 5 60 FR 234-01 Jan. 3, 1995. The Bank Secrecy Act authorizes the Treasury to issue regulations requiring financial institutions to implement procedures for complying with the Bank Secrecy Act and to guard against money laundering. FinCEN issued the travel rule pursuant to this authority. 6 Through a separate rulemaking, the Board added on January 3, 1995 a new subpart B to 12 CFR Part 219, which cross-references the requirements of 31 CFR 103.33(e) and (f). *See* 60 FR 231-01 Jan. 3, 1995. 7 Recordkeeping requirements for banks are set forth in 31 CFR 103.33(e). Recordkeeping requirements for nonbank financial institutions are set forth in 31 CFR 103.33(f). The travel rule—codified at 31 CFR 103.33(g)—applies by its terms to both bank and nonbank financial institutions. B. Overview of the Recordkeeping and Travel Rules The recordkeeping and travel rules in 31 CFR 103.33 require banks and nonbank financial institutions to collect, retain, and transmit information on funds transfers and transmittals of funds in amounts of $3,000 and more. Under the recordkeeping rule, the originator's bank or transmittor's financial institution must collect and retain the following information:

(a)Name and address of the originator or transmittor;

(b)the amount of the payment or transmittal order;

(c)the execution date of the payment or transmittal order;

(d)any payment instructions received from the originator or transmittor with the payment or transmittal order; and

(e)the identity of the beneficiary's bank or recipient's financial institution. In addition, the originator's bank or transmittor's financial institution must retain as much of the following information as the bank or nonbank financial institution receives with the payment or transmittal order:

(1)Name and address of the beneficiary or recipient;

(2)account number of the beneficiary or recipient; and

(3)any other specific identifier of the beneficiary or recipient. The originator's bank or transmittor's financial institution is required to verify the identity of the person placing a payment or transmittal order if the order is made in person and the person placing the order is not an established customer. 8 Similarly, should the beneficiary's bank or recipient's financial institution deliver the proceeds to the beneficiary or recipient in person, the bank or nonbank financial institution must verify the identity of the beneficiary or recipient—and collect and retain various items of information identifying the beneficiary or recipient—if the beneficiary or recipient is not an established customer. Finally, an intermediary bank or intermediary financial institution—and the beneficiary's bank or recipient's financial institution—must retain originals or copies of payment or transmittal orders. 8 The term “established customer” is defined at 31 CFR 103.11(l). Under the travel rule, the originator's bank or transmittor's financial institution is required to include information, including all information required under the recordkeeping rule, in a payment or transmittal order sent by the bank or nonbank financial institution to another bank or nonbank financial institution in the payment chain. An intermediary bank or intermediary financial institution is also required to transmit information to other banks or nonbank financial institutions in the payment chain, to the extent the information is received by the intermediary bank or intermediary financial institution. II. Issues for Comment The requirement in 31 CFR 103.33 to collect, retain, and transmit information on funds transfers and transmittals of funds applies only to funds transfers and transmittals of funds in amounts of $3,000 or more. This Advance Notice requests comment on the potential effect of lowering the threshold—or eliminating the threshold altogether—as a means of combating terrorism, money laundering, and other illicit activity and protecting the U.S. financial system from these threats. Money launderers and terrorist financiers have become increasingly sophisticated in their use of funds transfers and transmittals of funds. In addition, the operating environment for banks and other financial institutions has evolved since the issuance of the recordkeeping and travel rules for funds transfers and transmittals of funds. In October 2001, the Financial Action Task Force issued “Special Recommendations on Terrorist Financing.” 9 Special Recommendation VII aims to ensure that basic information pertaining to the originator or transmittor in a funds transfer or transmittal of funds is collected, retained, and transmitted to banks or other financial institutions in the payment chain. 10 The Financial Action Task Force recommends a de minimis threshold no higher than $1,000 with the interest of identifying low value originators or transmitters without driving legitimate transactions underground and below regulatory review. The Agencies are considering the recommendation and assessing its appropriateness for the financial system in the United States. 9 *See* Nine Special Recommendations on Terrorist Financing (October 22, 2004). The document was amended on October 22, 2004—with the addition of Special Recommendation IX on cash couriers. The Financial Action Task Force is an international, inter-governmental body whose purpose is the development and promotion of national and international policies to combat money laundering and terrorist financing. 10 *See* Revised Interpretative Note to Special Recommendation VII: Wire Transfers (June 10, 2005). A. Benefit to Law Enforcement This Advance Notice requests comment on the benefit to law enforcement of reducing or eliminating the threshold for the requirement to collect, retain, and transmit information on funds transfers and transmittals of funds. Funds transfers and transmittals of funds are fast and efficient methods of moving funds anywhere in the world. Criminals have used funds transfers and transmittals of funds to facilitate or commit financial and other crimes. Representatives from the United States Drug Enforcement Administration, the State of Arizona, the Puerto Rico High Intensity Financial Crime Area, the Office of the New York State Attorney General, and the civil and criminal investigatory functions of the Internal Revenue Service have all indicated that the additional information collected as a result of lowering or eliminating the threshold would prove beneficial to investigations of money laundering, terrorist financing, and other financial crime. These representatives of law enforcement have indicated that lowering or eliminating the threshold would promote the disruption of illegal activity and make illegal activity more expensive for perpetrators by forcing them to use costlier alternative means of transferring funds to avoid higher risks of detection for funds transfers and transmittals of funds beneath the current threshold. Law enforcement has stated that criminals are aware of the current threshold and conduct transactions in amounts under the threshold to avoid providing identification. One agency, for instance, indicated that transactions in a money laundering and drug case involved amounts between $2,600 to $2,900. Another agency pointed to a money laundering incident—with a total value of over $1 million in laundered funds—that involved human trafficking and forced labor. All of the transactions in the money laundering incident involved amounts less than $3,000. One agency observed that the laundering of illegal proceeds from human smuggling involves transactions in amounts that average approximately $1,800. The agency also observed that money launderers have started to structure these amounts, using multiple transactions in amounts that range from $500 to $1,000. The same agency analyzed data it collected—on nearly 100,000 transactions in amounts of $750 or more—and determined that 97 percent involved amounts less than $3,000. The Agencies are interested in empirical support from law enforcement to document the degree of usefulness of a lower threshold in criminal, tax, or regulatory investigations or proceedings, or intelligence or counterintelligence matters. In this regard, the Agencies request responses from law enforcement to the following questions:

(1)To what extent have funds transfers or transmittals of funds under the $3,000 threshold been important to law enforcement investigations and proceedings? Please explain.

(2)To what extent have law enforcement investigations or proceedings been hindered by the $3,000 threshold? What is law enforcement's experience in being able to obtain records of transactions under the $3,000 threshold pursuant to subpoenas or search warrants? How frequently has law enforcement encountered financial institutions that do not retain records of the transactions under the $3,000 threshold and what types of institutions are involved?

(3)How frequently has law enforcement identified cases where persons have structured funds transfers or transmittals of funds to be under the $3,000 threshold in order to evade the recordkeeping requirement? How might structuring behavior change if the threshold was lowered to $2,000? To $1,000?

(4)Inasmuch as information regarding international transmittals of funds can be obtained by law enforcement without a judicial order or other similar process, how often has currently available information been accessed, and how useful was it? B. Burden to the Financial System This Advance Notice requests comment on the burden to the financial system, if any, that would result from lowering or eliminating the threshold for the requirement to collect, retain, and transmit information on funds transfers and transmittals of funds. Concurrent with this Advance Notice, the Treasury is evaluating the burden to financial institutions and usefulness to law enforcement of a reporting requirement for certain cross-border funds transfers and transmittals of funds. 11 If the current $3,000 threshold for the requirement to collect, retain, and transmit information on funds transfers and transmittals of funds is lowered or eliminated, the reporting requirement currently being considered could similarly include cross-border funds transfers or transmittals of funds in amounts less than $3,000. Accordingly, in commenting on the burden to collect, retain, and transmit information on funds transfers and transmittals of funds resulting from lowering or eliminating the current threshold, commenters may also wish to comment on whether the extent or nature of the burden would be affected by promulgation of a requirement to report cross-border funds transfers and transmittals of funds below the $3,000 threshold. 11 Section 6302 of the Intelligence Reform and Terrorism Prevention Act of 2004 (Pub. L. 108-458) authorizes the Secretary of the Treasury to prescribe regulations, if feasible, to require the reporting to FinCEN of certain cross-border funds transfers if such reporting is reasonably necessary to conduct the efforts of the Treasury against money laundering and terrorist financing. In deciding on a threshold of $3,000 in 1995, the Agencies balanced the value of data on funds transfers and transmittals of funds with the burden to the financial system. The Agencies established the current threshold in response to concerns by financial institutions that imposing requirements to collect, retain, and transmit information on funds transfers and transmittals of funds could result in significant implementation and ongoing costs. The expansion of requirements under the Bank Secrecy Act and advancing technology, however, may have reduced the incremental cost of obtaining, retaining, and transmitting information on funds transfers and transmittals of funds in amounts below the current threshold. In general, the responsibilities of financial institutions under the Bank Secrecy Act have expanded over time. For example, a money services business must now report suspicious transactions 12 and implement programs for ensuring compliance with the Bank Secrecy Act. 13 Money services businesses may collect and retain information on transmittals of funds as a means of ensuring compliance with the requirement to report suspicious transactions. The requirement on the part of money services businesses to report suspicious transactions may mean that reducing or eliminating the threshold would impose less of an incremental cost. If this is not the case, the Agencies welcome comments from money services businesses. 12 *See* 31 CFR 103.20. The requirement applies to transactions occurring after December 31, 2001. The threshold for the requirement to report suspicious transactions is $2,000. 13 *See* 31 CFR 103.125. A money services business must implement the program on or before the later of July 24, 2002 and the end of the ninety-day period beginning on the day following the date the business is established. In addition, technology has advanced since the issuance of the recordkeeping and travel rules for funds transfers and transmittals of funds. Banks and other financial institutions may use less expensive or more efficient means of electronic storage and retrieval. The Agencies are gathering information on financial institutions' practices and procedures to measure the compliance burden of lowering the threshold. The Agencies request responses from financial institutions to the following questions:

(1)What proportion of funds transfers or transmittals of funds that your financial institution processes as an originator's bank or transmittor's financial institution involves amounts less than $3,000? What proportion involves amounts less than $2,000? What proportion involves amounts less than $1,000?

(2)For each category of funds transfer or transmittal of funds—those involving amounts less than $3,000, less than $2,000, and less than $1,000—what proportion does your financial institution process as an originator's bank or transmittor's financial institution for originators or transmittors who fail to qualify as “established customers''? What proportion does your financial institution process as a beneficiary's bank or recipient's financial institution for beneficiaries or recipients who fail to qualify as “established customers''? Do the recordkeeping practices of your financial institution for these transactions—and the practices of your financial institution in verifying the identities of persons who fail to qualify as “established customers”—differ based on whether the funds transfer or transmittal of funds involves an amount above or below the current threshold of $3,000? If so, please describe the differences.

(3)Do the recordkeeping practices of your financial institution for funds transfers or transmittals of funds involving amounts below the current threshold of $3,000 differ from those for funds transfers or transmittals of funds involving amounts above the threshold? If so, please describe the differences.

(4)Does the information that your financial institution includes in payment or transmittal orders for funds transfers or transmittals of funds involving amounts below the current threshold of $3,000 differ from the information that your financial institution includes in payment or transmittal orders for funds transfers or transmittals of funds involving amounts above the threshold? If so, please describe the differences.

(5)How would reducing or eliminating the threshold affect the price and type of the services that your financial institution provides in connection with domestic and cross-border funds transfers or transmittals of funds? To the extent possible, discuss the effect based on reductions of the threshold in increments of $1,000, or explain at which point lowering the threshold would substantially impact the price and type of services provided by your financial institution.

(6)How would reducing or eliminating the threshold affect the cost and efficiency of payment operations at your financial institution and the payments system in general? To the extent possible, discuss the effect based on reductions of the threshold in increments of $1,000, or explain at which point lowering the threshold would substantially impact the cost and efficiency of payment operations at your financial institution or the payments system in general. C. Burden to the Public Finally, the Agencies are gathering information on consumer practices and procedures to measure the effect of lowering the threshold. The Agencies request responses from the public to the following questions:

(1)Would increases in the price of funds transfers or transmittals of funds result in the use of alternative methods of sending funds, such as sending a money order by post or courier?

(2)Would a requirement for originator information below the current threshold result in the use of alternative methods of sending funds, such as sending a money order by post or courier?

(3)Are there certain types of transactions that permit the use of alternative methods more than others? For transactions that allow for alternative methods, please explain how you would decide between the various methods of sending funds.

(4)Do you engage in different behavior when making funds transfers and transmittal of funds above and below $3,000 because of the current threshold? Please explain. III. Conclusion With this Advance Notice, the Agencies request comment on the potential effect of lowering or eliminating the threshold for the requirement in 31 CFR 103.33 to collect, retain, and transmit information on funds transfers and transmittals of funds. Comments on all aspects of the Advance Notice are welcome, and the Agencies encourage all interested parties to provide their views. IV. Executive Order 12866 The Agencies do not know whether regulations under the Bank Secrecy Act will be amended, or the nature of any amendment. Consequently, the Agencies do not know whether the potential regulatory action would constitute a significant regulatory action under Executive Order 12866. This Advance Notice neither establishes nor proposes any regulatory requirements. Accordingly, the Agencies solicit comment, information, and data on the potential effects of any potential regulation. Robert W. Werner, Director, Financial Crimes Enforcement Network. By order of the Board of Governors of the Federal Reserve System, June 15, 2006. Jennifer J. Johnson, Secretary of the Board. [FR Doc. 06-5567 Filed 6-20-06; 8:45 am]

Connectionstraces to 32

Traces to 32 documents

U.S. Code