Notices. Temporary final rule; extension of effective period

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BILLING CODE 5001-06-M DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 117 [CGD01-06-006] RIN 1625-AA09 Drawbridge Operation Regulations; Jamaica Bay and Connecting Waterways, New York City, NY AGENCY: Coast Guard, DHS. ACTION: Temporary final rule; extension of effective period. SUMMARY: The Coast Guard has changed the effective period for the temporary regulation governing the operation of the New York City Highway Bridge (Belt Parkway), at mile 0.8, across Mill Basin, at New York City, New York.

This temporary final rule allows the bridge owner to extend the effective period during which only one of the two moveable spans need open for the passage of vessel traffic. This rule is necessary to facilitate the completion of the ongoing bridge deck replacement. DATES: This temporary rule is effective from September 8, 2006 through December 30, 2006. ADDRESSES: Comments and material received from the public, as well as documents indicated in this preamble as being available in the docket, are part of docket CGD01-06-006 and are available for inspection or copying at the First Coast Guard District, Bridge Branch Office, 408 Atlantic Avenue, Boston, Massachusetts 02110, between 7 a.m. and 3 p.m., Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT: Ms. Judy Leung-Yee, Project Officer, First Coast Guard District,

(212)668-7195. SUPPLEMENTARY INFORMATION: Regulatory Information On January 30, 2006, we published a notice of proposed rulemaking

(NPRM)entitled “Drawbridge Operation Regulations; Jamaica Bay and Connecting Waterways, New York City, NY,” in the **Federal Register** (71 FR 4852). We received no comments in response to the NPRM. On March 13, 2006, we published a temporary final rule

(TFR)entitled “Drawbridge Operation Regulations; Jamaica Bay and Connecting Waterways, New York City, NY,” in the **Federal Register** (71 FR 12621). We did not publish an NPRM for this extension of the temporary final rule's effective period. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing an NPRM because it is impracticable to issue an NPRM prior to the previously announced September 7, 2006 expiration of the temporary final rule, and because any interruption of the arrangements permitted by the temporary final rule would be contrary to the public interest. For the same reason, the Coast Guard finds under 5 U.S.C. 553(d) that good cause exists for making this extension of the temporary final rule effective less than 30 days after publication. The deck replacement for the New York City Highway Bridge is ongoing, vital, and necessary work that must be performed without delay as a result of the deterioration of the existing bridge deck which could fail if not replaced with all due speed. Work is behind schedule due to unforeseen construction delays and bad weather. In order to assure the continued safe and reliable operation of the bridge, construction should be allowed to continue through December 30, 2006. Background and Purpose The New York City Highway Bridge (Belt Parkway), has a vertical clearance of 34 feet at mean high water and 39 feet at mean low water in the closed position. The existing regulations are listed at 33 CFR 117.795(b). The owner of the bridge, New York City Department of Transportation (NYCDOT), requested a temporary change to the drawbridge operation regulations in November 2005, to facilitate the replacement of the bridge roadway deck. During the prosecution of that rehabilitation construction, the opening span that was undergoing deck replacement could not open for vessel traffic. As a result, the bridge owner requested that only one of the two opening spans open for the passage of vessel traffic from March 1, 2006 through September 7, 2006. The Coast Guard published a temporary final rule (71 FR 12621) on March 13, 2006, effective from March 8, 2006 through September 7, 2006, to facilitate the above construction. The work was scheduled to be completed by September 7, 2006, but due to unforeseen construction delays and weather conditions, the work will not be completed by September 7, 2006, as planned. As a result, the extension of the effective period of this regulation is necessary to allow the bridge owner to continue to open only one of the two moveable spans for the passage of vessel traffic from March 8, 2006 through December 30, 2006, to facilitate the completion of the ongoing bridge deck replacement. Discussion of Rule This temporary rule change would amend 33 CFR 117.795 by suspending paragraph (b), which lists the New York City Highway Bridge (Belt Parkway), and by adding a temporary paragraph

(d)to allow single span bridge openings from March 8, 2006 through December 30, 2006. Regulatory Evaluation This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3), of that Order. The Office of Management and Budget has not reviewed it under that Order. This conclusion is based on the fact that the vessel traffic that normally transits this bridge should not be precluded from transiting due to single span bridge openings. Small Entities Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we considered whether this rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. This rule would not have a significant economic impact on a substantial number of small entities for the following reason: Mill Basin is navigated predominantly by recreational vessels. The single span bridge openings should not preclude vessel traffic from transiting the bridge because the recreational vessels that normally use this waterway should be able to transit through the bridge with the reduced horizontal clearance of 67.5 feet due to their relative small size. Assistance for Small Entities Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we offered to assist small entities in understanding the rule so that they could better evaluate its effects on them and participate in the rulemaking process. Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). Collection of Information This rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). Federalism A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this rule under that Order and have determined that it does not have implications for federalism. Unfunded Mandates Reform Act The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble. Taking of Private Property This rule will not affect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights. Civil Justice Reform This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden. Protection of Children We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not concern an environmental risk to health or risk to safety that may disproportionately affect children. Indian Tribal Governments This final rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. Energy Effects We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211. Technical Standards The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies. This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards. Environment We have analyzed this rule under Commandant Instruction M16475.1D, and Department of Homeland Security Management Directive 5100.1, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969

(NEPA)(42 U.S.C. 4321-4370f), and have concluded that there are no factors in this case that would limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Therefore, this rule is categorically excluded, under figure 2-1, paragraph (32)(e) of the Instruction, from further environmental documentation considering that it relates to the promulgation of operating regulations or procedures for drawbridges. Under figure 2-1, paragraph (32)(e) of the Instruction, an “Environmental Analysis Check List” and a “Categorical Exclusion Determination” are not required for this rule. List of Subjects in 33 CFR Part 117 Bridges. For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 117 as follows: PART 117—DRAWBRIDGE OPERATION REGULATIONS 1. The authority citation for part 117 continues to read as follows: Authority: 33 U.S.C. 499; 33 CFR 1.05-1(g); Department of Homeland Security Delegation No. 0170.1; section 117.255 also issued under the authority of Public Law 102-587, 106 Stat. 5039. 2. From September 8, 2006 through December 30, 2006, § 117.795 is amended by suspending paragraph

(b)and adding a temporary paragraph (d), to read as follows: § 117.795 Jamaica Bay and Connecting Waterways. (d)(1) The New York City Highway Bridge (Belt Parkway), mile 0.8, across Mill Basin, need only open one moveable span for the passage of vessel traffic from March 8, 2006 through December 30, 2006. The draw need not be opened for the passage of vessel traffic from 12 p.m. to 9 p.m. on Sundays from May 15 through September 30, and on Memorial Day, Independence Day, and Labor Day. However, on these days the draw shall open on signal from the time two hours before to one hour after the predicted high tide(s).

(2)For the purpose of this section, predicted high tide(s) occur 15 minutes later than that predicted for Sandy Hook, as documented in the tidal current data, which is updated, generated and published by the National Oceanic and Atmospheric Administration/National Ocean Service. Dated: August 7, 2006. Timothy S. Sullivan, Rear Admiral, U.S. Coast Guard, Commander, First Coast Guard District. [FR Doc. E6-13895 Filed 8-22-06; 8:45 am] BILLING CODE 4910-15-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 180 [EPA-HQ-OPP-2006-0165; FRL-8079-3] Dimethenamid; Pesticide Tolerance AGENCY: Environmental Protection Agency (EPA). ACTION: Final rule. SUMMARY: This regulation establishes tolerances for residues of dimethenamid in or on leek;onion, green; onion,Welsh; shallot, fresh leaves. Interregional Research Project No.4 (IR-4) requested these tolerances under the Federal Food, Drug, and Cosmetic Act (FFDCA), as amended by the Food Quality Protection Act of 1996 (FQPA). DATES: This regulation is effective August 23, 2006. Objections and requests for hearings must be received on or before October 23, 2006, and must be filed in accordance with the instructions provided in 40 CFR part 178 (see also Unit I.C. of the **SUPPLEMENTARY INFORMATION)** . ADDRESSES: EPA has established a docket for this action under docket identification

(ID)number EPA-HQ-OPP-2006-0165. All documents in the docket are listed in the index for the docket. 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 Building), 2777 S. Crystal Drive, Arlington, VA. The Docket Facility is open from 8:30 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The Docket telephone number is

(703)305-5805. FOR FURTHER INFORMATION CONTACT: Barbara Madden, Registration Division (7505P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone number:

(703)305-6463; e-mail address: *Madden.Barbara@epa.gov* . SUPPLEMENTARY INFORMATION: I. General Information A. Does this Action Apply to Me? You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. Potentially affected entities may include, but are not limited to: • Crop production (NAICS 111), e.g., agricultural workers; greenhouse, nursery, and floriculture workers; farmers. • Animal production (NAICS 112), e.g., cattle ranchers and farmers, dairy cattle farmers, livestock farmers. • Food manufacturing (NAICS 311), e.g., agricultural workers; farmers; greenhouse, nursery, and floriculture workers; ranchers; pesticide applicators. • Pesticide manufacturing (NAICS 32532), e.g., agricultural workers; commercial applicators; farmers; greenhouse, nursery, and floriculture workers; residential users. 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 part 180 through the Government Printing Office's pilot e-CFR site at *http://www.gpoaccess.gov/ecfr* . To access the OPPTS Harmonized Guidelines referenced in this document, go directly to the guidelines at *http://www.epa.gpo/opptsfrs/home/guidelin.htm* C. Can I File an Objection or Hearing Request? Under section 408(g) of the FFDCA, as amended by the FQPA, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. The EPA procedural regulations which govern the submission of objections and requests for hearings appear in 40 CFR part 178. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2006-0165 in the subject line on the first page of your submission. All requests must be in writing, and must be mailed or delivered to the Hearing Clerk on or before October 23, 2006. In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing that does not contain any CBI for inclusion in the public docket that is described in **ADDRESSES** . Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit your copies, identified by docket ID number EPA-HQ-OPP-2006-0165, by one of the following methods: • Federal eRulemaking Portal: *http://www.regulations.gov* . Follow the on-line instructions for submitting comments. • *Mail* : Office of Pesticide Programs

(OPP)Regulatory Public Docket (7502P), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001. • *Delivery* : OPP Regulatory Public Docket (7502P), Environmental Protection Agency, Rm. S-4400, One Potomac Yard (South Building), 2777 S. Crystal Drive, Arlington, VA. Deliveries are only accepted during the Docket's normal hours of operation (8:30 a.m. to 4 p.m., Monday through Friday, excluding legal holidays). Special arrangements should be made for deliveries of boxed information. The Docket telephone number is

(703)305-5805. II. Background and Statutory Findings In the **Federal Register** of March 22, 2006 (71 FR 14521) (FRL-7766-7), EPA issued a notice pursuant to section 408(d)(3) of FFDCA, 21 U.S.C. 346a(d)(3), announcing the filing of a pesticide petition (PP 4E6844) by Interregional Research Project No. 4 (IR-4), Technology Center of New Jersey, Rutgers, the State University of New Jersey, 681 U.S. Highway #1 South, North Brunswick, NJ 08902-3390. The petition requested that 40 CFR 180.464 be amended by establishing a tolerance for residues of the herbicide dimethenamid, (R,S)-2-chloro-N-[(1-methyl-2-methoxy) ethyl]-N-(2,4-dimethylthien-3-yl)-acetamide in or on the raw agricultural commodities: onion, green at 0.01 parts per million (ppm); leek at 0.01 ppm; onion, Welsh at 0.01 ppm; and shallot, fresh leaves at 0.01 ppm. That notice included a summary of the petition prepared by BASF Corporation, the registrant. There were no comments received in response to the notice of filing. Section 408(b)(2)(A)(i) of FFDCA allows EPA to establish a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.” Section 408(b)(2)(A)(ii) of FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings, but does not include occupational exposure. Section 408(b)(2)(C) of FFDCA requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue....” EPA performs a number of analyses to determine the risks from aggregate exposure to pesticide residues. For further discussion of the regulatory requirements of section 408 of the FFDCA and a complete description of the risk assessment process, see *http://www.epa.gov/fedrgstr/EPA-PEST/1997/November/Day-26/p30948.htm* . III. Aggregate Risk Assessment and Determination of Safety Consistent with section 408(b)(2)(D) of FFDCA, EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of and to make a determination on aggregate exposure, consistent with section 408(b)(2) of FFDCA, for a tolerance for residues of dimethenamid, (R,S)-2-chloro-N-(1-methyl-2-methoxy) ethyl-N-(2,4-dimethylthien-3-yl)-acetamide in or on the raw agricultural commodities: onion, green at 0.01 ppm; leek at 0.01 ppm; onion, Welsh at 0.01 ppm; and shallot, fresh leaves at 0.01 ppm. EPA's assessment of exposures and risks associated with establishing the tolerance follows. A. Toxicological Profile EPA has evaluated the available toxicity data and considered its validity, completeness, and reliability as well as the relationship of the results of the studies to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children. Specific information on the studies received and the nature of the toxic effects caused by dimethenamid as well as the no-observed-adverse-effect-level (NOAEL) and the lowest-observed-adverse-effect-level (LOAEL) from the toxicity studies can be found at http://www.epa.gov/fedrgstr/EPA-PEST/2004/September/Day-24/p21501.htm. B. Toxicological Endpoints For hazards that have a threshold below which there is no appreciable risk, the dose at which no adverse effects are observed (the NOAEL) from the toxicology study identified as appropriate for use in risk assessment is used to estimate the toxicological level of concern (LOC). However, the lowest dose at which adverse effects of concern are identified (the LOAEL) is sometimes used for risk assessment if no NOAEL was achieved in the toxicology study selected. An uncertainty factor

(rat)and one sex (males). The incidence of liver tumors was just slightly increased from the level in the historical control data. Higher doses did not demonstrate the occurrence of liver adenomas significantly different from the controls. No dose-related tumors were seen in the mouse carcinogenicity study, and a battery of mutagenicity studies with dimethenamid-P (90:10 S:R isomers) were negative or equivocal for genetic mutations including unscheduled DNA synthesis. 2. *Dietary exposure from drinking water* . The Agency lacks sufficient monitoring exposure data to complete a comprehensive dietary exposure analysis and risk assessment for dimethenamid in drinking water. Because the Agency does not have comprehensive monitoring data, drinking water concentration estimates are made by reliance on simulation or modeling taking into account data on the physical characteristics of dimethenamid. Further information regarding EPA drinking water models used in pesticide exposure assessment can be found at http://www.epa.gov/oppefed1/models/water/index.htm. Based on the PRZM/EXAMS and SCI-GROW models, the estimated environmental concentrations

(EECs)of dimethenamid for acute exposures are estimated to be 49 parts per billion

(ppb)for surface water and 0.42 ppb for ground water. The EECs for chronic exposures are estimated to be 7.9 ppb for surface water and 0.42 ppb for ground water.Modeled estimates of drinking water concentrations were directly entered into the dietary exposure model (DEEM-FCID TM , Version 1.3). For acute dietary risk assessment, the peak water concentration value of 49 ppb was used to access the contribution to drinking water. For chronic dietary risk assessment, the annual average concentration of 7.9 ppb was used to access the contribution to drinking water 3. *From non-dietary exposure* . The term “residential exposure” is used in this document to refer to non-occupational, non-dietary exposure (e.g., for lawn and garden pest control, indoor pest control, termiticides, and flea and tick control on pets). Dimethenamid is not registered for use on any sites that would result in residential exposure. 4. *Cumulative effects from substances with a common mechanism of toxicity* . Section 408(b)(2)(D)(v) of the FFDCA requires that, when considering whether to establish, modify, or revoke a tolerance, the Agency consider “available information” concerning the cumulative effects of a particular pesticide's residues and “other substances that have a common mechanism of toxicity.” Unlike other pesticides for which EPA has followed a cumulative risk approach based on a common mechanism of toxicity, EPA has not made a common mechanism of toxicity finding as to dimethenamid and any other substances and dimethenamid does not appear to produce a toxic metabolite produced by other substances. For the purposes of this tolerance action, therefore, EPA has not assumed that dimethenamid has a common mechanism of toxicity with other substances. For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see the policy statements released by EPA's Office of Pesticide Programs concerning common mechanism determinations and procedures for cumulating effects from substances found to have a common mechanism on EPA's website at *http://www.epa.gov/pesticides/cumulative* . D. Safety Factor for Infants and Children 1. * In general* . Section 408 of FFDCA provides that EPA shall apply an additional tenfold margin of safety for infants and children in the case of threshold effects to account for prenatal and postnatal toxicity and the completeness of the data base on toxicity and exposure unless EPA determines based on reliable data that a different margin of safety will be safe for infants and children. Margins of safety are incorporated into EPA risk assessments either directly through use of a MOE analysis or through using uncertainty (safety) factors in calculating a dose level that poses no appreciable risk to humans. In applying this provision, EPA either retains the default value of 10X when reliable data do not support the choice of a different factor, or, if reliable data are available, EPA uses a different additional safety factor value based on the use of traditional uncertainty factors and/or special FQPA safety factors, as appropriate. 2. *Prenatal and postnatal sensitivity* . No offspring pre- or postnatal susceptibility to either dimethenamid (50:50 S:R isomers) or dimethenamid-P (90:10 S:R isomers) was seen in a rabbit or two rat developmental studies and reproduction study. There is low concern for pre- or postnatal toxicity since the developmental effects from the [S] and [RS] mixture are similar and occur at similar doses. 3. *Conclusion* . There is a complete toxicity data base for dimethenamid and exposure data are complete or are estimated based on data that reasonably accounts for potential exposures. EPA determined that the safety factor for dimethenamid should be 100 (10X safety factor for interspecies extrapolation and 10X for intraspecies variation). The additional FQPA SF was removed taking into account the low concerns and lack residual uncertainties with regard to prenatal and postnatal toxicity and the completeness of the toxicity and exposure data base. E. Aggregate Risks and Determination of Safety The Agency currently has two ways to estimate total aggregate exposure to a pesticide from food, drinking water, and residential uses. First, a screening assessment can be used, in which the Agency calculates drinking water levels of comparison (DWLOCs) which are used as a point of comparison against estimated drinking water concentrations (EDWCs). The DWLOC values are not regulatory standards for drinking water, but are theoretical upper limits on a pesticide's concentration in drinking water in light of total aggregate exposure to a pesticide in food and residential uses. More information on the use of DWLOCs in dietary aggregate risk assessments can be found at *http://www.epa.gov/oppfead1/trac/science/screeningsop.pdf* More recently the Agency has used another approach to estimate aggregate exposure through food, residential and drinking water pathways. In this approach, modeled surface and ground water EDWCs are directly incorporated into the dietary exposure analysis, along with food. This provides a more realistic estimate of exposure because actual body weights and water consumption from the CSFII are used. The combined food and water exposures are then added to estimated exposure from residential sources to calculate aggregate risks. The resulting exposure and risk estimates are still considered to be high end, due to the assumptions used in developing drinking water modeling inputs. 1. *Acute risk* . Using the exposure assumptions discussed in this unit for acute exposure, the acute dietary exposure from food and water to dimethenamid will occupy <1% of the aPAD for females 13 years and older. Therefore, EPA does not expect the aggregate exposure to exceed 100% of the aPAD. 2. *Chronic risk* . Using the exposure assumptions described in this unit for chronic exposure, EPA has concluded that exposure to dimethenamid food and water will utilize <1 % of the cPAD for the U.S. population, 1.2 % of the cPAD for all infants < 1 year old, the subpopulation at greatest exposure, and <1 % of the cPAD for children 1-2 years old. There are no residential uses for dimethenamid. Therefore, EPA does not expect the aggregate exposure to exceed 100% of the cPAD. 3. *Short-term and Intermediate-term risk* . Short-term and Intermediate-term aggregate exposures take into account residential exposure plus chronic exposure to food and water (considered to be a background exposure level). Dimethenamid is not registered for use on any sites that would result in residential exposure. Therefore, the aggregate risk is the sum of the risk from food and water, which do not exceed the Agency's level of concern. 4. *Aggregate cancer risk for U.S. population* . The Agency considers the chronic aggregate risk assessment, making use of the cPAD, to be protective of any aggregate cancer risk. See Unit III.E.2. 5. *Determination of safety* . Based on these risk assessments, EPA concludes that there is a reasonable certainty that no harm will result to the general population, and to infants and children from aggregate exposure to dimethenamid residues. IV. Other Considerations A. Analytical Enforcement Methodology Adequate enforcement methodology (AM-0884-0193-1) is available to enforce the tolerance expression. AM-0884-0193-1 is a gas chromatography

(GC)method using an HP-1 or HP-5 column and mass selective detection (MSD). The method may be requested from: Chief, Analytical Chemistry Branch, Environmental Science Center, 701 Mapes Rd., Ft. Meade, MD 20755-5350; telephone number:

(410)305-2905; e-mail address: *residuemethods@epa.gov* . B. International Residue Limits There are no Codex, Canadian, or Mexican MRLs for dimethenamid in or on the proposed commodities. Therefore, harmonization of tolerances is not an issue. V. Conclusion Therefore, tolerance are established for residues of dimethenamid, (R,S)-2-chloro-N-[(1-methyl-2-methoxy) ethyl]-N-(2,4-dimethylthien-3-yl)-acetamide in or on the commodities onion, green at 0.01 ppm; leek at 0.01 ppm; onion, Welsh at 0.01 ppm; and shallot, fresh leaves at 0.01 ppm. VI. Statutory and Executive Order Reviews This final rule establishes a tolerance under section 408(d) of FFDCA in response to a petition submitted to the Agency. The Office of Management and Budget

(OMB)has exempted these types of actions from review 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 would require Agency 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 tolerances and exemptions that are established on the basis of a petition under section 408(d) of FFDCA, such as the tolerance in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act

(RFA)(5 U.S.C. 601 *et seq.* ) do not apply. 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). Executive Order 13132 requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” This final rule directly regulates growers, food processors, food handlers and food retailers, not States. This action does not alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of section 408(n)(4) of FFDCA. For these same reasons, the Agency has determined that this rule does not have any “tribal implications” as described in Executive Order 13175, entitled *Consultation and Coordination with Indian Tribal Governments* (65 FR 67249, November 6, 2000). Executive Order 13175, requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” “Policies that have tribal implications” is defined in the Executive order to include regulations that have “substantial direct effects on 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.” This rule will not have substantial direct effects on tribal governments, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified in Executive Order 13175. Thus, Executive Order 13175 does not apply to this rule. VII. Congressional Review Act The Congressional Review Act, 5 U.S.C. 801 *et seq.* , as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of this final rule in the **Federal Register** . This final rule is not a “major rule” as defined by 5 U.S.C. 804(2). List of Subjects in 40 CFR Part 180 Environmental protection, Administrative practice and procedure, Agricultural commodities, Pesticides and pests, Reporting and recordkeeping requirements. Dated: August 7, 2006. Donald R. Stubbs, Acting Director, Registration Division, Office of Pesticide Programs. Therefore, 40 CFR chapter I is amended as follows: PART 180—[AMENDED] 1. The authority citation for part 180 continues to read as follows: Authority: 21 U.S.C. 321(q), 346a and 371. 2. Section 180.464 is amended by alphabetically adding commodities to the table in paragraph

(a)to read as follows: § 180.464 Dimethenamid; tolerances for residues.

(a)* * * Commodity Parts per million * * * * * Leek 0.01 * * * * * Onion, green 0.01 Onion, Welsh 0.01 * * * * * Shallot, fresh leaves 0.01 * * * * * [FR Doc. E6-13660 Filed 8-22-06; 8:45 am] BILLING CODE 6560-50-S ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 180 [EPA-HQ-OPP-2006-0461; FRL-8078-1] Triflumizole; Pesticide Tolerances for Emergency Exemptions AGENCY: Environmental Protection Agency (EPA). ACTION: Final rule. SUMMARY: This regulation establishes time-limited tolerances for combined residues of triflumizole in or on turnip, greens. Additionally, this regulation increases the tolerance levels and extends time-limited tolerances for Chinese Napa cabbage, collards, coriander leaves (cilantro), kale, kohlrabi, mustard greens and parsley. Further, this regulation extends time-limited tolerances for broccoli, dandelion and Swiss chard. This action is in response to EPA's granting of emergency exemptions under section 18 of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) authorizing use of the pesticide on parsley, dandelion, Swiss chard, collards, kale, kohlrabi, mustard greens, Chinese Napa cabbage, broccoli, coriander leaves (cilantro), and turnip greens. This regulation establishes, revises, and/or extends a maximum permissible level for residues of triflumizole in these food commodities. These tolerances expire and are revoked on December 31, 2009. DATES: This regulation is effective August 23, 2006. Objections and requests for hearings must be received on or before October 23, 2006, and must be filed in accordance with the instructions provided in 40 CFR part 178 (see also Unit I.C. of the SUPPLEMENTARY INFORMATION . ADDRESSES: EPA has established a docket for this action under docket identification

(ID)number EPA-HQ-OPP-2006-0461. All documents in the docket are listed on the regulations.gov website. Although listed in the index, some information is not publicly available, e.g., Confidential Business Information

(OPP)Regulatory Public Docket in Rm. S-4400, One Potomac Yard (South Building), 2777 S. Crystal Drive Arlington, VA. The hours of operation of this Docket Facility are from 8:30 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The Docket telephone number is

(703)305-5805. FOR FURTHER INFORMATION CONTACT: Libby Pemberton, Registration Division (7505P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone number:

(703)308-9364; e-mail address: *Sec-18-Mailbox@epa.gov* . SUPPLEMENTARY INFORMATION: I. General Information A. Does this Action Apply to Me? You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. Potentially affected entities may include, but are not limited to: • Crop production (NAICS code 111). • Animal production (NAICS code 112). • Food manufacturing (NAICS code 311). • 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 part 180 through the Government Printing Office's pilot e-CFR site at *http://www.gpoaccess.gov/ecfr* . C. Can I File an Objection or Hearing Request? Under section 408(g) of the FFDCA, as amended by the FQPA, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. The EPA procedural regulations which govern the submission of objections and requests for hearings appear in 40 CFR part 178. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2006-0461 in the subject line on the first page of your submission. All requests must be in writing, and must be mailed or delivered to the Hearing Clerk on or before October 23, 2006. In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing that does not contain any CBI for inclusion in the public docket that is described in ADDRESSES . Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit your copies, identified by docket ID number EPA-HQ-OPP-2006-0461, by one of the following methods: • Federal eRulemaking Portal: *http://www.regulations.gov* . Follow the on-line instructions for submitting comments. • *Mail* : Office of Pesticide Programs

(703)305-5805. II. Background and Statutory Findings EPA, on its own initiative, in accordance with sections 408(e) and 408 (l)(6) of the Federal Food, Drug, and Cosmetic Act (FFDCA), 21 U.S.C. 346a, is establishing tolerances for combined residues of the fungicide triflumizole,1-(1-((4-chloro-2-trifluoromethyl)phenyl)imino)-2-propoxyethyl)-1H-imidazole, and its metabolites containing the 4-chloro-2-trifluoromethylaniline moiety, calculated as the parent compound, in or on turnip, greens at 20 parts per million

(ppm)and increasing the tolerance levels in or on cabbage, Chinese, Napa at 20 ppm; collards at 20 ppm; coriander, leaves at 20 ppm; kale at 20 ppm; kohlrabi at 20 ppm; mustard, greens at 20 ppm; and parsley, leaves at 20 ppm. Further, this regulation extends time-limited tolerances for broccoli at 1.0 ppm; dandelion, leaves at 7.0 ppm and Swiss chard at 7.0 ppm. These tolerances expire and are revoked on December 31, 2009. EPA will publish a document in the **Federal Register** to remove the revoked tolerances from the Code of Federal Regulations (CFR). Section 408(l)(6) of the FFDCA requires EPA to establish a time-limited tolerance or exemption from the requirement for a tolerance for pesticide chemical residues in food that will result from the use of a pesticide under an emergency exemption granted by EPA under section 18 of FIFRA. Such tolerances can be established without providing notice or period for public comment. EPA does not intend for its actions on section 18 related tolerances to set binding precedents for the application of section 408 of the FFDCA and the new safety standard to other tolerances and exemptions. Section 408(e) of the FFDCA allows EPA to establish a tolerance or an exemption from the requirement of a tolerance on its own initiative, i.e., without having received any petition from an outside party. Section 408(b)(2)(A)(i) of the FFDCA allows EPA to establish a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.” Section 408(b)(2)(A)(ii) of the FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings, but does not include occupational exposure. Section 408(b)(2)(C) of the FFDCA requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue. . . .” Section 18 of the FIFRA authorizes EPA to exempt any Federal or State agency from any provision of FIFRA, if EPA determines that “emergency conditions exist which require such exemption.” This provision was not amended by the Food Quality Protection Act of 1996 (FQPA). EPA has established regulations governing such emergency exemptions in 40 CFR part 166. III. Emergency Exemption for Triflumizole on Parsley, Dandelion, Swiss Chard, Collards, Kale, Kohlrabi, Mustard Greens, Chinese Napa Cabbage, Broccoli, Coriander Leaves (Cilantro), and Turnip Greens and FFDCA Tolerances Texas has declared a crisis exemption under FIFRA section 18 for the use of triflumizole on parsley, dandelion, Swiss chard, collards, kale, kohlrabi, mustard greens, Chinese Napa cabbage, broccoli, coriander leaves (cilantro), and turnip greens for control of powdery mildew. Texas states that the effective control of powdery mildew over the 70-90 day growing season requires two additional applications of a systemic pesticide beyond those permitted on the currently registered alternative labels. After having reviewed the submission, EPA concurs that emergency conditions exist for this State. As part of its assessment of this emergency exemption, EPA assessed the potential risks presented by residues of triflumizole in or on parsley, dandelion, Swiss chard, collards, kale, kohlrabi, mustard greens, Chinese Napa cabbage, broccoli, coriander leaves (cilantro), and turnip greens. In doing so, EPA considered the safety standard in section 408(b)(2) of the FFDCA, and EPA decided that the necessary tolerances under section 408(l)(6) of the FFDCA would be consistent with the safety standard and with FIFRA section 18. Consistent with the need to move quickly on the emergency exemptions in order to address urgent non-routine situations and to ensure that the resulting foods are safe and lawful, EPA is issuing these tolerances without notice and opportunity for public comment as provided in section 408(l)(6) of the FFDCA. Although these tolerances expire and are revoked on June 30, 2009, under section 408(l)(5) of the FFDCA, residues of the pesticide not in excess of the amounts specified in the tolerances remaining in or on parsley, dandelion, Swiss chard, collards, kale, kohlrabi, mustard greens, Chinese Napa cabbage, broccoli, coriander leaves (cilantro), and turnip greens after that date will not be unlawful, provided the pesticide is applied in a manner that was lawful under FIFRA, and the residues do not exceed a level that was authorized by these tolerances at the time of that application. EPA will take action to revoke these tolerances earlier if any experience with, scientific data on, or other relevant information on this pesticide indicate that the residues are not safe. Because these tolerances are being approved under emergency conditions, EPA has not made any decisions about whether triflumizole meets EPA's registration requirements for use on parsley, dandelion, Swiss chard, collards, kale, kohlrabi, mustard greens, Chinese Napa cabbage, broccoli, coriander leaves (cilantro), and turnip greens or whether permanent tolerances for these uses would be appropriate. Under these circumstances, EPA does not believe that these tolerances serve as a basis for registration of triflumizole by a State for special local needs under FIFRA section 24(c). Nor do these tolerances serve as the basis for any State other than Texas to use this pesticide on these crops under section 18 of FIFRA without following all provisions of EPA's regulations implementing FIFRA section 18 as identified in 40 CFR part 166. For additional information regarding the emergency exemptions for triflumizole, contact the Agency's Registration Division at the address provided under FOR FURTHER INFORMATION CONTACT . IV. Aggregate Risk Assessment and Determination of Safety EPA performs a number of analyses to determine the risks from aggregate exposure to pesticide residues. For further discussion of the regulatory requirements of section 408 of the FFDCA and a complete description of the risk assessment process, see *http://www.epa.gov/fedrgstr/EPA-PEST/1997/November/Day-26/p30948.htm* . Consistent with section 408(b)(2)(D) of the FFDCA , EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of triflumizole and to make a determination on aggregate exposure, consistent with section 408(b)(2) of the FFDCA, for time-limited tolerances for combined residues of triflumizole in or on parsley, leaves at 20 ppm; dandelion, leaves at 7.0 ppm; Swiss chard at 7.0 ppm; collards at 20 ppm; kale at 20 ppm; kohlrabi at 20 ppm; mustard, greens at 20 ppm; Cabbage, Chinese, Napa at 20 ppm; broccoli at 1.0 ppm; coriander, leaves at 20 ppm; and turnip, greens at 20 ppm. The most recent estimated aggregate risks resulting from the use of triflumizole are discussed in the **Federal Register** for April 8, 2005 (70 FR 17908) (FRL-7701-6). This final rule established time-limited tolerances for residues of triflumizole in or on parsley, leaves; dandelion, leaves; Swiss chard; collards; kale; kohlrabi; mustard greens; cabbage, Chinese, Napa; broccoli; and coriander, leaves (cilantro) in connection with a crisis exemption declared by the state of Texas, December 21, 2004. A new risk assessment was conducted for the current action to include the proposed use on turnip greens and due to the submission of new residue chemistry data and subsequent necessary revision to the time-limited tolerances on the aforementioned crops. Refer to the April 8, 2005 **Federal Register** document for a detailed discussion of the aggregate risk assessments and determination of safety. Below is a brief summary of the aspects of the risk assessment which are affected by the change of tolerances. EPA has evaluated the available toxicity data and considered its validity, completeness, and reliability as well as the relationship of the results of the studies to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children. A summary of the toxicological dose and endpoints for triflumizole for use in human risk assessment is discussed in Unit IV.A. of the **Federal Register** of April 8, 2005 (70 FR 17908). EPA assessed risk scenarios for triflumizole under acute and chronic aggregate exposure (food + drinking water). Short-, intermediate-, and long-term aggregate risk assessments were not performed because there are no registered or proposed residential uses for triflumizole. A cancer aggregate risk assessment was not performed because triflumizole is not carcinogenic. The Dietary Exposure Evaluation Model - Food Commodity Intake Database (DEEM- FCID TM ) analysis evaluated the individual food consumption as reported by respondents in the USDA 1994-1996, 1998 nationwide Continuing Surveys of Food Intake by Individuals (CSFII) and accumulated exposure to the chemical for each commodity. Acute dietary exposure assessments were conducted for the general U.S. population (including infants and children) and females 13-49 years old using tolerance level residues and 100% crop treated

(CT)information for all registered and proposed uses). Drinking water was incorporated directly in the dietary assessment using the acute

(peak)concentration for surface water generated by the FIRST model. Using these exposure assessments, the EPA concluded that triflumizole exposure from food and water consumption will utilize 9.3 % of the aPAD for U.S. Population, 21% of the a PAD for all infants less than 1 year old, 25% of the aPAD for children 1-2 years old, the subpopulation at greatest exposure and 17% of the aPAD for females 13-49 years old. Therefore, EPA does not expect the aggregate exposure to exceed 100% of the aPAD. A refined, chronic dietary exposure assessment was performed for the general U.S. population and various population subgroups using anticipated residues

(ARs)from average field trial residues for apple, grape, pear, cherry, cucurbit, strawberry, and milk commodities; registered and proposed tolerance for all other commodities; % CT information for apples, grapes and pear commodities; and 100% CT information for all other uses. Drinking water was incorporated directly into the dietary assessment using the chronic (annual average) concentration for surface water generated by the FIRST model. Using these exposure assumptions, the EPA concluded that exposure to triflumizole from food and water will utilize 17% of the cPAD for the general U.S. population, 24% of the cPAD for all infants less that 1 year old and 31% of the cPAD for children 1-2 years old, the subpopulation at greatest exposure. Therefore, EPA does not expect the aggregate exposure to exceed 100% of the cPAD. V. Other Considerations A. Analytical Enforcement Methodology Adequate enforcement methodology (gas chromatography(GC)/nitrogen-phosphorus detector

(NPD)method) has been deemed acceptable as a tolerance enforcement method. The method may be requested from: Chief, Analytical Chemistry Branch, Environmental Science Center, 701 Mapes Rd., Ft. Meade, MD 20755-5350; telephone number:

(410)305-2905; e-mail address: *residuemethods@epa.gov* . B. International Residue Limits There are no Codex, Canadian or Mexican maximum residue limits established for triflumizole residues in/on crop commodities. Therefore, no compatibility issues exist with regard to the proposed U.S. tolerances discussed in this risk assessment. VI. Conclusion Therefore, tolerances are established/revised for combined residues of triflumizole, 1- (1-((4-chloro-2-(trifluoromethyl)phenyl)imino)-2-propoxyethyl)-1H-imidazole, and its metabolites containing the 4-chloro-2-trifluoromethylaniline moiety, calculated as the parent compound, in or on parsley, leaves at 20 ppm; dandelion, leaves at 7.0 ppm; Swiss chard at 7.0 ppm; collards at 20 ppm; kale at 20 ppm; kohlrabi at 20 ppm; mustard, greens at 20 ppm; cabbage, Chinese, Napa at 20 ppm; broccoli at 1.0 ppm; coriander, leaves at 20 ppm; and turnip, greens at 20 ppm. VII. Statutory and Executive Order Reviews This final rule establishes/revises time-limited tolerances under section 408 of the FFDCA. The Office of Management and Budget

(OMB)has exempted these types of actions from review 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 would require Agency 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 tolerances and exemptions that are established on the basis of a FIFRA section 18 exemption under section 408 of the FFDCA, such as the [tolerance/exemption] in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act

(RFA)(5 U.S.C. 601 *et seq* .) do not apply. [If this rule is adopting a proposed rule add the following sentence: The Agency hereby certifies that this rule will not have significant negative economic impact on a substantial number of small entities.] 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). Executive Order 13132 requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” This final rule directly regulates growers, food processors, food handlers, and food retailers, not States. This action does not alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of section 408(n)(4) of the FFDCA. For these same reasons, the Agency has determined that this rule does not have any “tribal implications” as described in Executive Order 13175, entitled *Consultation and Coordination with Indian Tribal Governments* (65 FR 67249, November 6, 2000). Executive Order 13175, requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” “Policies that have tribal implications” is defined in the Executive order to include regulations that have “substantial direct effects on 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.” This rule will not have substantial direct effects on tribal governments, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified in Executive Order 13175. Thus, Executive Order 13175 does not apply to this rule. VIII. Congressional Review Act The Congressional Review Act, 5 U.S.C. 801 *et seq* ., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of this final rule in the **Federal Register** . This final rule is not a “major rule” as defined by 5 U.S.C. 804(2). List of Subjects in 40 CFR Part 180 Environmental protection, Administrative practice and procedure, Agricultural commodities, Pesticides and pests, Reporting and recordkeeping requirements. Dated: August 11, 2006. Daniel J. Rosenblatt, Acting Director, Registration Division, Office of Pesticide Programs. Therefore, 40 CFR chapter I is amended as follows: PART 180—[AMENDED] 1. The authority citation for part 180 continues to read as follows: Authority: 21 U.S.C. 321(q), 346a and 371. 2. Section 180.476 is amended, in paragraph (b), by revising the table to read as follows: § 180.476 Triflumizole; tolerances for residues.

(b)* * * Commodity Parts per million Expiration/revocation date Broccoli 1.0 12/31/09 Cabbage, chinese, napa 20 12/31/09 Collards 20 12/31/09 Coriander, leaves 20 12/31/09 Dandelion, leaves 7.0 12/31/09 Kale 20 12/31/09 Kohlrabi 20 12/31/09 Mustard, greens 20 12/31/09 Parsley, leaves 20 12/31/09 Swiss chard 7.0 12/31/09 Turnip, greens 20 12/31/09 [FR Doc. E6-13659 Filed 8-22-06; 8:45 am] BILLING CODE 6560-50-S ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 180 [EPA-HQ-OPP-2005-0540; FRL-8086-9] Azoxystrobin; Pesticide Tolerance AGENCY: Environmental Protection Agency (EPA). ACTION: Final rule. SUMMARY: This regulation establishes tolerances for combined residues of azoxystrobin in or on vegetables, foliage of legume, group 7; vegetables, fruiting, group 8 (except tomato); pea and bean, succulent shelled, subgroup 6B; pea and bean, dried shelled, except soybean subgroup, 6C; citrus, dried pulp; citrus, oil; and fruit, citrus, Group 10. Interregional Research Project Number 4 (IR-4) requested these tolerances under the Federal Food, Drug, and Cosmetic Act (FFDCA), as amended by the Food Quality Protection Act of 1996 (FQPA). EPA is also deleting several existing tolerances that are no longer needed as a result of this action. DATES: This regulation is effective August 23, 2006. Objections and requests for hearings must be received on or before October 23, 2006, and must be filed in accordance with the instructions provided in 40 CFR part 178 (see also Unit I.C. of the SUPPLEMENTARY INFORMATION ). ADDRESSES: EPA has established a docket for this action under docket identification

(ID)number EPA-HQ-OPP-2005-0540. All documents in the docket are listed in the index for the docket. Although listed in the index, some information is not publicly available, e.g., Confidential Business Information

(703)305-6463; e-mail address: *madden.barbara@epa.gov* . SUPPLEMENTARY INFORMATION: I. General Information A. Does this Action Apply to Me? You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. Potentially affected entities may include, but are not limited to: • Crop production (NAICS 111), e.g., agricultural workers; greenhouse, nursery, and floriculture workers; farmers. • Animal production (NAICS 112), e.g., cattle ranchers and farmers, dairy cattle farmers, livestock farmers. • Food manufacturing (NAICS 311), e.g., agricultural workers; farmers; greenhouse, nursery, and floriculture workers; ranchers; pesticide applicators. • Pesticide manufacturing (NAICS 32532), e.g., agricultural workers; commercial applicators; farmers; greenhouse, nursery, and floriculture workers; residential users. 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 part 180 through the Government Printing Office's pilot e-CFR site at *http://www.gpoaccess.gov/ecfr* . To access the OPPTS Harmonized Guidelines referenced in this document, go directly to the guidelines at *http://www.epa.gpo/opptsfrs/home/guidelin.htm* . C. Can I File an Objection or Hearing Request? Under section 408(g) of the FFDCA, as amended by the FQPA, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. The EPA procedural regulations which govern the submission of objections and requests for hearings appear in 40 CFR part 178. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2005-0540 in the subject line on the first page of your submission. All requests must be in writing, and must be mailed or delivered to the Hearing Clerk on or before October 23, 2006. In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing that does not contain any CBI for inclusion in the public docket that is described in ADDRESSES . Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit your copies, identified by docket ID number EPA-HQ-OPP-2005-0540 by one of the following methods: • Federal eRulemaking Portal: *http://www.regulations.gov* . Follow the on-line instructions for submitting comments. • *Mail* : Office of Pesticide Programs

(703)305-5805. II. Background and Statutory Findings In the **Federal Register** of March 8, 2006 (71 FR 11624) (FRL-7765-5), EPA issued a notice pursuant to section 408(d)(3) of FFDCA, 21 U.S.C. 346a(d)(3), announcing the filing of a pesticide petition (PP 5E6916) by Interregional Research Project #4 (IR-4), 681 US Highway 1 South, North Brunswick, NJ 08902-3390. The petition requested that 40 CFR 180.507 be amended by establishing a tolerance for combined residues of the fungicide of azoxystrobin, [methyl (E)-2-(2-(6-(2-cyanophenoxy)pyrimidin-4-yloxy)phenyl)-3-methoxyacrylate] and the Z isomer of azoxystrobin, [methyl (Z)-2-(2-(6-(2-cyanophenoxy)pyrimidin-4-yloxy)phenyl)-3-methoxyacrylate], in or on citrus, dried pulp at 20.0 parts per million (ppm); citrus, oil at 40.0 ppm; fruit, citrus, group 10 at 10.0 ppm; vegetable, foliage of legume, group 7 at 30.0 ppm; vegetable, fruiting, group 8, except tomato at 2.0 ppm; pea and bean, succulent shelled, subgroup 6B at 0.5 ppm; pea and bean, dried shelled, except soybean, subgroup 6C at 0.5 ppm; animal feed, nongrass, group 18, forage at 30.0 ppm; animal feed, nongrass, group 18 hay at 55.0 ppm. That notice included a summary of the petition prepared by Syngenta, the registrant on behalf of the Interregional Research Project Number 4 (IR-4). One comment was received on the notice of filing. EPA's response to this comment is discussed in Unit IV.C. EPA is also deleting several established tolerances in § 180.507(a)(1) and (a)(3) that are no longer needed. The revisions to § 180.507(a)(1) are as follows: i. Delete eggplant and pepper tolerances at 2.0 ppm. Replaced with vegetable, fruiting group 8 (except tomato) at 2.0 ppm. ii. Delete soybean, forage at 25.0. Replaced with vegetable, foliage of legume, group 7 at 30.0 ppm. The revision to paragraph (a)(3) is to delete the time-limited tolerance for potato at 0.03 ppm because it has expired and remove it from § 180.507. Section 408(b)(2)(A)(i) of FFDCA allows EPA to establish a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.” Section 408(b)(2)(A)(ii) of FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings, but does not include occupational exposure. Section 408(b)(2)(C) of FFDCA requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue....” EPA performs a number of analyses to determine the risks from aggregate exposure to pesticide residues. For further discussion of the regulatory requirements of section 408 of the FFDCA and a complete description of the risk assessment process, see *http://www.epa.gov/fedrgstr/EPA-PEST/1997/November/Day-26/p30948.htm* . III. Aggregate Risk Assessment and Determination of Safety Consistent with section 408(b)(2)(D) of FFDCA, EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of and to make a determination on aggregate exposure, consistent with section 408(b)(2) of FFDCA, for a tolerance for combined residues of azoxystrobin, [methyl (E)-2-(2-(6-(2-cyanophenoxy)pyrimidin-4-yloxy)phenyl)-3-methoxyacrylate] and the Z isomer of azoxystrobin, [methyl (Z)-2-(2-(6-(2-cyanophenoxy)pyrimidin-4-yloxy)phenyl)-3-methoxyacrylate] on citrus, dried pulp at 20.0 ppm; citrus, oil at 40.0 ppm; fruit, citrus, group 10 at 10.0 ppm; vegetable, foliage of legume, group 7 at 30.0 ppm; vegetable, fruiting, group 8, except tomato at 2.0 ppm; pea and bean, succulent shelled, subgroup 6B at 0.5 ppm; and pea and bean, dried shelled, except soybean, subgroup 6C at 0.5 ppm. EPA's assessment of exposures and risks associated with establishing the tolerance follows. A. Toxicological Profile EPA has evaluated the available toxicity data and considered its validity, completeness, and reliability as well as the relationship of the results of the studies to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children. Specific information on the studies received and the nature of the toxic effects caused by azoxystrobin as well as the no-observed-adverse-effect-level (NOAEL) and the lowest-observed-adverse-effect-level (LOAEL) from the toxicity studies can be found at *http://www.epa.gov/fedrgstr/EPA-PEST/2000/September/Day-29/p25051.htm* . B. Toxicological Endpoints For hazards that have a threshold below which there is no appreciable risk, the dose at which no adverse effects are observed (the NOAEL) from the toxicology study identified as appropriate for use in risk assessment is used to estimate the toxicological level of concern (LOC). However, the lowest dose at which adverse effects of concern are identified (the LOAEL) is sometimes used for risk assessment if no NOAEL was achieved in the toxicology study selected. An uncertainty factor

(mbyp)of cattle, goat, hog, horse, and sheep. Risk assessments were conducted by EPA to assess dietary exposures from azoxystrobin in food as follows: i. *Acute exposure* . Quantitative acute dietary exposure and risk assessments are performed for a food-use pesticide, if a toxicological study has indicated the possibility of an effect of concern occurring as a result of a one-day or single exposure. In conducting the acute dietary exposure assessment EPA used the Dietary Exposure Evaluation Model software with the Food Commodity Intake Database (DEEM-FCID TM ), which incorporates food consumption data as reported by respondents in the USDA 1994-1996 and 1998 Nationwide Continuing Surveys of Food Intake by Individuals (CSFII), and accumulated exposure to the chemical for each commodity. The following assumptions were made for the acute exposure assessments: One hundred percent of proposed and registered crops are assumed treated with azoxystrobin and tolerance-level residues. ii. *Chronic exposure* . In conducting the chronic dietary exposure assessment EPA used the Dietary Exposure Evaluation Model software with the Food Commodity Intake Database (DEEM-FCID TM ), which incorporates food consumption data as reported by respondents in the USDA 1994-1996 and 1998 Nationwide Continuing Surveys of Food Intake by Individuals (CSFII), and accumulated exposure to the chemical for each commodity. The following assumptions were made for the chronic exposure assessments: Some percent crop treated information for selected crops and tolerance-level residues. iii. *Cancer* . Azoxystrobin is classified as “not likely to be a human carcinogen.” Therefore, a cancer dietary exposure assessment was not performed. iv. *Anticipated residue and percent crop treated

(PCT)information* . Section 408(b)(2)(F) of FFDCA states that the Agency may use data on the actual percent of food treated for assessing chronic dietary risk only if the Agency can make the following findings: Condition 1, that the data used are reliable and provide a valid basis to show what percentage of the food derived from such crop is likely to contain such pesticide residue; Condition 2, that the exposure estimate does not underestimate exposure for any significant subpopulation group; and Condition 3, if data are available on pesticide use and food consumption in a particular area, the exposure estimate does not understate exposure for the population in such area. In addition, the Agency must provide for periodic evaluation of any estimates used. To provide for the periodic evaluation of the estimate of PCT as required by section 408(b)(2)(F) of FFDCA, EPA may require registrants to submit data on PCT. The Agency used PCT information as follows: almond, 20%; apricot, 15%; asparagus, 1%; dry beans and peas, 1%; green beans, 25%; garden beets, 15%; sugar beets, 1%; blueberry, 15%; cabbage, 5%; cantaloupes, 10%; carrot, 10%; celery, 10%; cherry, 5%; sweet corn, 10%; cucumber, 15%; filbert, 5%; garlic, 50%; grape, 10%; grapefruit, 20%; guar, 1%; honeydew melon, 5%; lettuce, 1%; mustard greens, 15%; onion, 10%; orange, 17%; parsley, 30%; peach, 5%; peanut, 10%; pecan, 1%; pepper, 10%; pistachio, 30%; prunes and plum, 1%; potato, 25%; pumpkin, 20%; rapeseed (canola), 5%; rice, 25%; safflower, 5%; soybean, 1%; spinach, 10%; summer and winter squash, 15%; strawberry, 20%; sunflower, 5%; tangerine, 20%; tomato, 20%; turnip greens, 15%; walnut, 1%; watermelon, 25%; and wheat, 1%. EPA estimates projected percent crop treated

(PPCT)for a new pesticide use by assuming that the percent crop treated

(PCT)during the pesticide's initial five years of use on a specific use site will not exceed the average PCT of the dominant pesticide (i.e., the one with the greatest PCT) on that site over the three most recent surveys. Comparisons are only made among pesticides of the same pesticide types (i.e., the dominant fungicide on the use site is selected for comparison with a new fungicide). The PCTs included in the average may be each for the same pesticide or for different pesticides since the same or different pesticides may dominate for each year selected. Typically, EPA uses USDA/NASS as the source for raw PCT data because it is publicly available and does not have to be calculated from available data sources. When a specific use site is not surveyed by USDA/NASS, EPA uses proprietary data and calculates the estimated PCT. The estimated PPCT for azoxystrobin on PH oranges is based on the recent PCT of market leader imazilil. The estimated PPCT for this new use of azoxystrobin is a high-end estimate that is highly unlikely to be exceeded during the initial five years of actual use. This is based on the fact that azoxystrobin complements imazilil in fungicide resistance programs to control imazilil-resistant populations of *Penicillium* spp. (green mold disease) and to reduce the potential for crop losses from fungicide-resistant populations of the pathogen. Azoxystrobin is highly unlikely to exceed imazilil use because it is used in imazilil resistance management. Thus the given PPCT for azoxystrobin is appropriate for use in chronic dietary risk assessment. 2. *Dietary exposure from drinking water* . The Agency lacks sufficient monitoring exposure data to complete a comprehensive dietary exposure analysis and risk assessment for azoxystrobin in drinking water. Because the Agency does not have comprehensive monitoring data, drinking water concentration estimates are made by reliance on simulation or modeling taking into account data on the physical characteristics of azoxystrobin. Further information regarding EPA drinking water models used in pesticide exposure assessment can be found at *http://www.epa.gov/oppefed1/models/water/index.htm* . Based on the FIRST and SCI-GROW models, the estimated environmental concentrations

(EECs)of azoxystrobin for chronic exposures are estimated to be 33 parts per billion

(ppb)for surface water and 3.1 ppb for ground water.The estimated drinking water concentrations (EDWCs) for azoxystrobin were calculated based on a maximum application rate for turf of 0.55 lb ai/A/application with 9 applications per year. Modeled estimates of drinking water concentrations were directly entered into the dietary exposure model (DEEM-FCID). For chronic dietary risk assessment, the annual average concentration of 33 ppb was used to access the contribution to drinking water. 3. *From non-dietary exposure* . The term “residential exposure” is used in this document to refer to non-occupational, non-dietary exposure (e.g., for lawn and garden pest control, indoor pest control, termiticides, and flea and tick control on pets). Azoxystrobin is currently registered for use on the following residential non-dietary sites: Residential turfgrass and ornamentals, as well as indoor surfaces. The risk assessment was conducted using the following residential exposure assumptions: Residential handlers may receive short-term dermal and inhalation exposure to azoxystrobin when mixing, loading and applying the formulations. Adults and children may be exposed to azoxystrobin residues from dermal contact with foliage/surfaces during postapplication activities. Toddlers may receive short- and intermediate-term oral exposure from incidental ingestion during postapplication activities. Inhalation daily doses for residential handlers were calculated for the WDG formulation using data for mixing, loading and applying a liquid. Based on PHED unit exposure values from other handler scenarios with these formulation types, the exposure from a WDG is expected to be less than that of handling a liquid. The open mixing, loading, and applying liquid using a low pressure handwand

(PHED)handler scenario was evaluated. The residential exposure and risk assessment for turf and ornamentals was conducted using the application rate for turf because it is the highest use rate. Exposures were estimated for residential handler activities including: Mix, load and spot application of liquid formulation (low-pressure hand sprayer), and mix, load and broadcast application of liquid formulation (garden hose-end sprayer). In addition, short-term exposures were estimated for infants and children for postapplication exposure scenarios resulting from indoor surface treatment including: Toddlers' incidental ingestion of pesticide residues on hard indoor surfaces from hand-to-mouth transfer, and toddlers' incidental ingestion of pesticide residues on carpet/textile indoor surfaces from hand-to-mouth transfer. Intermediate-term exposures were also estimated for infants and children for residential post-application oral exposures. The exposure estimates are based on some upper-percentile (i.e., maximum application rate, initial amount of transferrable residue and duration of exposure) and some central tendency (i.e., surface area, hand-to-mouth activity, and body weight) assumptions and are considered to be representative of high-end exposures. The uncertainties associated with this assessment stem from the use of an assumed amount of pesticide available from turf, and assumptions regarding transfer of chemical residues and hand-to mouth activity. The estimated exposures are believed to be reasonable high-end estimates. 4. *Cumulative effects from substances with a common mechanism of toxicity* . Section 408(b)(2)(D)(v) of the FFDCA requires that, when considering whether to establish, modify, or revoke a tolerance, the Agency consider “available information” concerning the cumulative effects of a particular pesticide's residues and “other substances that have a common mechanism of toxicity.” Unlike other pesticides for which EPA has followed a cumulative risk approach based on a common mechanism of toxicity, EPA has not made a common mechanism of toxicity finding as to azoxystrobin and any other substances and azoxystrobin does not appear to produce a toxic metabolite produced by other substances. For the purposes of this tolerance action, therefore, EPA has not assumed that azoxystrobin has a common mechanism of toxicity with other substances. For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see the policy statements released by EPA's Office of Pesticide Programs concerning common mechanism determinations and procedures for cumulating effects from substances found to have a common mechanism on EPA's Web site at *http://www.epa.gov/pesticides/cumulative* . D. Safety Factor for Infants and Children 1. * In general* . Section 408 of FFDCA provides that EPA shall apply an additional tenfold margin of safety for infants and children in the case of threshold effects to account for prenatal and postnatal toxicity and the completeness of the data base on toxicity and exposure unless EPA determines based on reliable data that a different margin of safety will be safe for infants and children. Margins of safety are incorporated into EPA risk assessments either directly through use of a MOE analysis or through using uncertainty (safety) factors in calculating a dose level that poses no appreciable risk to humans. In applying this provision, EPA either retains the default value of 10X when reliable data do not support the choice of a different factor, or, if reliable data are available, EPA uses a different additional safety factor value based on the use of traditional uncertainty factors and/or special FQPA safety factors, as appropriate. 2. *Prenatal and postnatal sensitivity* . The developmental and reproductive toxicity data, from a Prenatal Development Study in Rats, a Prenatal Development Study in Rabbits, and a Two-Generation Reproductive Toxicity Study in Rats, did not indicate increased susceptibility of young rats or rabbits to *in utero* and/or postnatal exposure. 3. *Conclusion* . There is a complete toxicity data base for azoxystrobin and exposure data are complete or are estimated based on data that reasonably account for potential exposures. The Agency has determined that the 10X FQPA safety factor to protect infants and children should be removed (that is, set to 1) because, in addition to the completeness of the toxicological database and the lack of increased susceptibility of young rats and rabbits to pre- and postnatal exposure to azoxystrobin, the unrefined acute and chronic dietary exposure estimates will overestimate dietary exposure from food, and ground and surface water modeling data produce upper-bound concentration estimates. The residential postapplication assessment is based upon the residential SOPs. The assessment is based upon surrogate study data. These data are reliable and are not expected to underestimate risk to adults or children. The residential SOPs are based upon reasonable “worst-case” assumptions and are not expected to underestimate risk. E. Aggregate Risks and Determination of Safety The Agency currently has two ways to estimate total aggregate exposure to a pesticide from food, drinking water, and residential uses. First, a screening assessment can be used, in which the Agency calculates drinking water levels of comparison (DWLOCs) which are used as a point of comparison against estimated drinking water concentrations (EDWCs). The DWLOC values are not regulatory standards for drinking water, but are theoretical upper limits on a pesticide's concentration in drinking water in light of total aggregate exposure to a pesticide in food and residential uses. More information on the use of DWLOCs in dietary aggregate risk assessments can be found at *http://www.epa.gov/oppfead1/trac/science/screeningsop.pdf* . More recently the Agency has used another approach to estimate aggregate exposure through food, residential and drinking water pathways. In this approach, modeled surface and ground water EDWCs are directly incorporated into the dietary exposure analysis, along with food. This provides a more realistic estimate of exposure because actual body weights and water consumption from the CSFII are used. The combined food and water exposures are then added to estimated exposure from residential sources to calculate aggregate risks. The resulting exposure and risk estimates are still considered to be high end, due to the assumptions used in developing drinking water modeling inputs. 1. *Acute risk* . Using the exposure assumptions discussed in this unit for acute exposure, the acute dietary exposure from food and water to azoxystrobin will occupy 27 % of the aPAD for the U.S. population, 24 % of the aPAD for females 13 years and older, 24 % of the aPAD for infants (< 1year old), and 74 % of the aPAD for children 1-2 years old, the subpopulation at greatest exposure. Therefore, EPA does not expect the aggregate exposure to exceed 100% of the aPAD. 2. *Chronic risk* . Using the exposure assumptions described in this unit for chronic exposure, EPA has concluded that exposure to azoxystrobin from food and water will utilize 8 % of the cPAD for the U.S. population, 6 % of the cPAD for all infants (<1 year old), and 19% of the cPAD for children 1-2 years old, the subpopulation at greatest exposure. Based on the use pattern, chronic residential exposure to residues of azoxystrobin is not expected. Therefore, EPA does not expect the aggregate exposure to exceed 100% of the cPAD. 3. *Short-term risk* . Short-term aggregate exposure takes into account residential exposure plus chronic exposure to food and water (considered to be a background exposure level). Azoxystrobin is currently registered for use that could result in short-term residential exposure and the Agency has determined that it is appropriate to aggregate chronic food, water and short-term exposures for azoxystrobin. Using the exposure assumptions described in this unit for short-term exposures, EPA has concluded that food, water and residential exposures aggregated result in aggregate MOEs of 1,800 for the U.S. population, 2,150 for youth 13-19 years old, 250 for all infants less than one year old, 200 for children one to two years old and 2,150 for females 13-49 years old. These aggregate MOEs do not exceed the Agency's level of concern, a MOE of 100, for aggregate exposure to food, water and residential uses. 4. *Intermediate-term risk* . Intermediate-term aggregate exposure takes into account residential exposure plus chronic exposure to food and water (considered to be a background exposure level).of the risk from food and water, which do not exceed the Agency's level of concern. Azoxystrobin is currently registered for use(s) that could result in intermediate-term residential exposure and the Agency has determined that it is appropriate to aggregate chronic food, water and intermediate-term exposures for azoxystrobin. Using the exposure assumptions described in this unit for intermediate-term exposures, EPA has concluded that food, water and residential exposures aggregated result in aggregate MOEs of 260 for children one to two years old. These aggregate MOEs do not exceed the Agency's level of concern, a MOE of 100, for aggregate exposure to food, water and residential uses. 5. *Aggregate cancer risk for U.S. population* . Azoxystrobin has been classified as not likely to be carcinogenic to humans. Therefore, azoxystrobin is expected to pose at most a negligible cancer risk. 6. *Determination of safety* . Based on these risk assessments, EPA concludes that there is a reasonable certainty that no harm will result to the general population, and to infants and children from aggregate exposure to azoxystrobin residues. IV. Other Considerations A. Analytical Enforcement Methodology Adequate methodology is available for enforcement of these tolerances. The gas chromatography/nitrogen phosphorous detector (GC/ NPD) method (RAM 243/04) has undergone a method validation by the EPA analytical laboratory. EPA comments have been incorporated and the revised method (designated RAM 243) will be submitted to FDA for inclusion in PAM, Volume II as an enforcement method. The method may be requested from: Chief, Analytical Chemistry Branch, Environmental Science Center, 701 Mapes Rd., Ft. Meade, MD 20755-5350; telephone number:

(410)305-2905; e-mail address: *residuemethods@epa.gov* . B. International Residue Limits There are no Codex MRLs for azoxystrobin. Canada and Mexico have a MRL for tomato at 0.2. Mexico also has a MRL for chili pepper at 2.0 ppm. These existing MRLs match those being established. There are no other Canadian or Mexican MRLs for commodities of concern in this action. Therefore, there are no international harmonization issues associated with this action. C. Response to Comments One comment was received from a private citizen who opposed the manufacturing and selling of this product due to potential effects on the environment. This comment is considered irrelevant because the safety standard for approving tolerances under section 408 of FFDCA focuses on potential harms to human health and does not permit consideration of effects on the environment. V. Conclusion Therefore, the tolerance is established for combined residues azoxystrobin, [methyl (E)-2-(2-(6-(2-cyanophenoxy)pyrimidin-4-yloxy)phenyl)-3-methoxyacrylate] and the Z isomer of azoxystrobin, [methyl (Z)-2-(2-(6-(2-cyanophenoxy)pyrimidin-4-yloxy)phenyl)-3-methoxyacrylate] on citrus, dried pulp at 20.0 ppm; citrus, oil at 40.0 ppm; fruit, citrus, group 10 at 10.0 ppm; vegetable, foliage of legume, group 7 at 30.0 ppm; vegetable, fruiting, group 8, except tomato at 2.0 ppm; pea and bean, succulent shelled, subgroup 6B at 0.5 ppm; and pea and bean, dried shelled, except soybean, subgroup 6C at 0.5 ppm. VI. Statutory and Executive Order Reviews This final rule establishes a tolerance under section 408(d) of FFDCA in response to a petition submitted to the Agency. The Office of Management and Budget

(RFA)(5 U.S.C. 601 *et seq.* ) do not apply. 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). Executive Order 13132 requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” This final rule directly regulates growers, food processors, food handlers and food retailers, not States. This action does not alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of section 408(n)(4) of FFDCA. For these same reasons, the Agency has determined that this rule does not have any “tribal implications” as described in Executive Order 13175, entitled *Consultation and Coordination with Indian Tribal Governments* (65 FR 67249, November 6, 2000). Executive Order 13175, requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” “Policies that have tribal implications” is defined in the Executive order to include regulations that have “substantial direct effects on 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.” This rule will not have substantial direct effects on tribal governments, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified in Executive Order 13175. Thus, Executive Order 13175 does not apply to this rule. VII. Congressional Review Act The Congressional Review Act, 5 U.S.C. 801 *et seq.* , as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of this final rule in the **Federal Register** . This final rule is not a “major rule” as defined by 5 U.S.C. 804(2). List of Subjects in 40 CFR Part 180 Environmental protection, Administrative practice and procedure, Agricultural commodities, Pesticides and pests, Reporting and recordkeeping requirements. Dated: August 11, 2006. Daniel J. Rosenblatt, Acting Director, Registration Division, Office of Pesticide Programs. Therefore, 40 CFR chapter I is amended as follows: PART 180—[AMENDED] 1. The authority citation for part 180 continues to read as follows: Authority: 21 U.S.C. 321(q), 346a and 371. 2. Section 180.507 is amended in paragraph (a)(1), in the table, by removing the commodities eggplant; pepper; and soybean, forage; by alphabetically adding the commodities vegetable, foliage of legume; and vegetable, fruiting; and by revising the commodities citrus, dried pulp; citrus, oil; fruit, citrus; pea and bean, dried shelled, except soybean; and pea and bean, succulent shelled; and by removing paragraph (a)(3) to read as follows: § 180.507 Azoxystrobin; tolerances for residues.

(a)* * * Commodity Parts per million * * * * * Citrus, dried pulp 20.0 Citrus, oil 40.0 * * * * * Fruit, citrus, group 10 10.0 * * * * * Pea and bean, dried shelled, except soybean, subgroup 6C 0.5 Pea and bean, succulent shelled, subgroup 6B 0.5 * * * * * Vegetable, foliage of legume, group 7 30.0 Vegetable, fruiting, group 8, except tomato 2.0 * * * * * [FR Doc. E6-13656 Filed 8-22-06; 8:45 am] BILLING CODE 6560-50-S ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 180 [EPA-HQ-OPP-2006-0216; FRL-8087-6] Fenpyroximate; Pesticide Tolerance AGENCY: Environmental Protection Agency (EPA). ACTION: Final rule. SUMMARY: This regulation establishes tolerances for combined residues of fenpyroximate and its z-isomer in or on hop, dried cones; almond hulls; nut, tree, group 14; pistachio; fruit, citrus, group 10; citrus, dried pulp; citrus, oil; peppermint, tops; and spearmint, tops. Interregional Project Number 4 (IR-4) requested these tolerances under the Federal Food, Drug, and Cosmetic Act (FFDCA), as amended by the Food Quality Protection Act of 1996 (FQPA). DATES: This regulation is effective August 23, 2006. Objections and requests for hearings must be received on or before October 23, 2006, and must be filed in accordance with the instructions provided in 40 CFR part 178 (see also Unit I.C. of the SUPPLEMENTARY INFORMATION ). ADDRESSES: EPA has established a docket for this action under docket identification

(ID)number EPA-HQ-OPP-2006-0216. All documents in the docket are listed in the index for the docket. Although listed in the index, some information is not publicly available, e.g., Confidential Business Information

(703)305-5805. FOR FURTHER INFORMATION CONTACT: Shaja R. Brothers, Registration Division (7505P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone number: 703-308-3194; e-mail address: *brothers.shaja@epa.gov* . SUPPLEMENTARY INFORMATION: I. General Information A. Does this Action Apply to Me? You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. Potentially affected entities may include, but are not limited to: • Crop production (NAICS 111), e.g., agricultural workers; greenhouse, nursery, and floriculture workers; farmers. • Animal production (NAICS 112), e.g., cattleranchers and farmers, dairy cattle farmers, livestock farmers. • Food manufacturing (NAICS 311), e.g., agricultural workers; farmers; greenhouse, nursery, and floriculture workers; ranchers; pesticide applicators. • Pesticide manufacturing (NAICS 32532), e.g., agricultural workers; commercial applicators; farmers; greenhouse, nursery, and floriculture workers; residential users. 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 part 180 through the Government Printing Office's pilot e-CFR site at *http://www.gpoaccess.gov/ecfr* . C. Can I File an Objection or Hearing Request? Under section 408(g) of the FFDCA, as amended by the FQPA, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. The EPA procedural regulations which govern the submission of objections and requests for hearings appear in 40 CFR part 178. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2006-0216 in the subject line on the first page of your submission. All requests must be in writing, and must be mailed or delivered to the Hearing Clerk on or before October 23, 2006. In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing that does not contain any CBI for inclusion in the public docket that is described in ADDRESSES . Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit your copies, identified by docket ID number EPA-HQ-OPP-2006-0216, by one of the following methods: • *Federal eRulemaking Portal* : *http://www.regulations.gov* . Follow the on-line instructions for submitting comments. • *Mail* : Office of Pesticide Programs

(703)305-5805. II. Background and Statutory Findings In the **Federal Register** of August 10, 2005 (70 FR 46444) (FRL-7729-3), EPA issued a notice pursuant to section 408(d)(3) of FFDCA, 21 U.S.C. 346a(d)(3), announcing the filing of a pesticide petition (PP 5E6943) by IR-4, 681 U.S. Highway #1 South, North Brunswick, NJ 08902-3390. The petition requested that 40 CFR 180.566 be amended by establishing tolerances for combined residues of the insecticide/miticide fenpyroximate, (E)-1,1-dimethylethyl 4-[[[[(1,3-dimethyl-5-phenoxy-1H-pyrazol-4-yl) methylene]amino]oxy]methyl]benzoate and its Z-isomer, (Z)-1,1-dimethylethyl 4-[[[[(1,3-dimethyl-5-phenoxy-1H-pyrazol-4-yl)methylene]amino]oxy] methyl]benzoate, in or on almond hulls at 1.8 parts per million (ppm); nut, tree, group 14 at 0.1 ppm; pistachio at 0.1 ppm; fruit, citrus, group 10; citrus at 0.4 ppm, fruit, citrus, dried pulp at 2.5 ppm; citrus, oil at 15 ppm; hop at 4.5 ppm; peppermint, tops at 3.0 ppm; and spearmint, tops at 3.0 ppm. That notice included a summary of the petition prepared by Nichino America, the registrant. Comments were received on the notice of filing. EPA's response to these comments is discussed in Unit IV.C. below. Following review of the residue chemistry data, EPA determined that the commodity terms and tolerance levels should be revised to the following: Almond, hulls at 3.0 ppm; hop, dried cones at 10 ppm ; nut, tree, group 14 at 0.10 ppm; pistachio at 0.10 ppm; fruit, citrus, group 10 at 0.60 ppm; fruit, citrus, dried pulp revised to read citrus, dried, pulp at 2.5 ppm; citrus, oil at 10 ppm; peppermint, tops at 7.0 ppm; and spearmint, tops at 7.0 ppm. Time-limited tolerances for grape, wine and hop (currently revised to hop, dried cones) have expired under 40 CFR 180.566(a)(1). Permanent tolerances have been established for these commodities; therefore, grape, wine and hop, dried cones will be added to 40 CFR 180.566(a)(2). The petitioner for hop, dried cones has requested a domestic registration; therefore, footnote 1 to the table in § 180.566(a)(2) which reads “There are no U.S. registration on hops” has been removed. In addition, registrations for citrus fruits, hops, mint, tree nuts (including pistachio) have been deemed as conditional and are contingent upon submission of required additional data. Section 408(b)(2)(A)(i) of FFDCA allows EPA to establish a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.” Section 408(b)(2)(A)(ii) of FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings, but does not include occupational exposure. Section 408(b)(2)(C) of FFDCA requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue....” EPA performs a number of analyses to determine the risks from aggregate exposure to pesticide residues. For further discussion of the regulatory requirements of section 408 of the FFDCA and a complete description of the risk assessment process, see *http://www.epa.gov/fedrgstr/EPA-PEST/1997/November/Day-26/p30948.htm* . III. Aggregate Risk Assessment and Determination of Safety Consistent with section 408(b)(2)(D) of FFDCA, EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of and to make a determination on aggregate exposure, consistent with section 408(b)(2) of FFDCA, for tolerances for combined residues of fenpyroximate and its z-isomer on almond, hulls at 3.0 ppm; hop, dried cones at 10 ppm; nut, tree, group 14 at 0.10 ppm; pistachio at 0.10 ppm; fruit, citrus, group 10 at 0.60 ppm; citrus, dried, pulp at 2.5 ppm; citrus, oil at 10 ppm; peppermint, tops at 7.0 ppm; and spearmint, tops at 7.0 ppm. EPA's assessment of exposures and risks associated with establishing the tolerances follow. A. Toxicological Profile EPA has evaluated the available toxicity data and considered its validity, completeness, and reliability as well as the relationship of the results of the studies to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children. Specific information on the studies received and the nature of the toxic effects caused by fenpyroximate as well as the no-observed-adverse-effect-level (NOAEL) and the lowest-observed-adverse-effect-level (LOAEL) from the toxicity studies can be found at *http://www.regulations.gov* , Docket No. EPA-HQ-OPP-2004-0174-0001, pages 2-4. B. Toxicological Endpoints For hazards that have a threshold below which there is no appreciable risk, the dose at which no adverse effects are observed (the NOAEL) from the toxicology study identified as appropriate for use in risk assessment is used to estimate the toxicological level of concern (LOC). However, the lowest dose at which adverse effects of concern are identified (the LOAEL) is sometimes used for risk assessment if no NOAEL was achieved in the toxicology study selected. An uncertainty factor

(UF)is applied to reflect uncertainties inherent in the extrapolation from laboratory animal data to humans and in the variations in sensitivity among members of the human population as well as other unknowns. The linear default risk methodology (Q*) is the primary method currently used by the Agency to quantify non-threshold hazards such as cancer. The Q* approach assumes that any amount of exposure will lead to some degree of cancer risk, estimates risk in terms of the probability of occurrence of additional cancer cases. More information can be found on the general principles EPA uses in risk characterization at *http://www.epa.gov/pesticides/health/human.htm* . A summary of the toxicological endpoints for fenpyroximate used for human risk assessment is discussed at *http://www.regulations.gov* , Docket No. EPA-HQ-OPP- 2005-0216-0001; pages 14-15. C. Exposure Assessment 1. *Dietary exposure from food and feed uses* . Tolerances have been established in 40 CFR 180.566(a)(2) for the combined residues of fenpyroximate and its z-isomer, in or on a variety of raw agricultural commodities. Risk assessments were conducted by EPA to assess dietary exposures from fenpyroximate in food as follows: i. *Acute exposure* . Quantitative acute dietary exposure and risk assessments are performed for a food-use pesticide, if a toxicological study has indicated the possibility of an effect of concern occurring as a result of a one-day or single exposure. An unrefined, Tier I acute dietary-exposure assessment was conducted for females 13 to 49 years old. The unrefined, Tier I acute analyses assumed that fenpyroximate residues were present in all commodities at tolerance levels and that 100% of all commodities (registered and proposed uses) are treated. Adequate processing data on apples, grapes, oranges and mint are available. Modified processing factors based on these data were used for apple juice, pear juice, grape juice, raisins, citrus juice (orange, grapefruit, lemon and lime) and mint oils (peppermint and spearmint). The Dietary Exposure Evaluation Model (DEEM TM ) default processing factors were used for all other processed commodities. ii. *Chronic exposure* . In conducting the chronic dietary exposure assessment EPA used the Dietary Exposure Evaluation Model software with the Food Commodity Intake Data base (DEEM-FCID TM ), which incorporates food consumption data as reported by respondents in the USDA 1994-1996 and 1998 Nationwide Continuing Surveys of Food Intake by Individuals (CSFII), and accumulated exposure to the chemical for each commodity. The following assumptions were made for the chronic exposure assessments: An unrefined, Tier I chronic dietary exposure assessment was conducted for the general U.S. population, and various population subgroups. The unrefined, Tier I chronic analyses assumed that fenpyroximate residues were present in all commodities at tolerance levels and that 100% of all commodities (registered and proposed uses) are treated. Adequate processing data on apples, grapes, oranges and mint are available. Modified processing factors based on these data were used for apple juice, pear juice, grape juice, raisins, citrus juice (orange, grapefruit, lemon and lime) and mint oils (peppermint and spearmint). DEEM TM default processing factors were used for all other processed commodities. iii. *Cancer* . Fenpyroximate is classified as “not likely to be a human carcinogen.” Therefore, a cancer dietary exposure assessment was not performed. 2. *Dietary exposure from drinking water* . The Agency determined in addition to the parent compound (M-1), the M-3 metabolite should be included in the drinking water assessment for fenpyroximate. Based on the proposed application rates and the environmental fate properties of fenpyroximate, some surface and ground water contamination may occur. However, the risk of water contamination from parent compound is relatively low, based on its high sorption potential. Unlike parent compound, the sorption of the M-3 metabolite is much less, and it may move into water resources more readily. Environmental fate data indicate that parent and its Z-isomer are stable to photolysis in soil and immobile in soil. Major degradates formed in the aqueous layer were M-3 (50%), M-8 (36%), M-16 (4-hydroxymethylbenzoic acid, 58%) and M-11 (25 to 30%), and M-3 (>10%), M-11 (25 to 30%) and M8 (16 to 19%) in the soil. However, data from a field dissipation study showed M3 (32%) being the only significant degradate found in the field. Based on the structural similarity between parent and M-3, the Agency concluded that parent and M-3 be included in the risk assessment. Based on Tier II screening-level surface water modeling for drinking water, the Agency estimated concentrations in surface water to be used for acute, chronic non-cancer, and cancer exposure assessment. Tier II surface water concentrations for parent fenpyroximate and M-3 were calculated using the Pesticide Root Zone Model/Exposure Analysis Modeling System (PRZM-EXAMS). The acute, and chronic non-cancer concentrations for GA pecan (highest exposure) are 12.9 and 1.8 microgram/liter, respectively. EPA used the Screening Concentration in Ground Water model (SCI-GROW2) to estimate a groundwater concentration of 0.059 parts per billion (ppb). These results for both surface water and ground water are consistent with the fate and transport properties of fenpyroximate. Modeled estimates of drinking water concentrations were directly entered into the dietary exposure model (DEEM-FCID). For the acute assessment, the peak concentration of 12.9 ppb was used to access the contribution to drinking water; for the chronic assessment, the annual mean value of 1.8 ppb was used to access the contribution to drinking water. 3. *From non-dietary exposure* . The term “residential exposure” is used in this document to refer to non-occupational, non-dietary exposure (e.g., for lawn and garden pest control, indoor pest control, termiticides, and flea and tick control on pets). Fenpyroximate is not registered for use on any sites that would result in residential exposure. 4. *Cumulative effects from substances with a common mechanism of toxicity* . Section 408(b)(2)(D)(v) of the FFDCA requires that, when considering whether to establish, modify, or revoke a tolerance, the Agency consider “available information” concerning the cumulative effects of a particular pesticide's residues and “other substances that have a common mechanism of toxicity.” Unlike other pesticides for which EPA has followed a cumulative risk approach based on a common mechanism of toxicity, EPA has not made a common mechanism of toxicity finding as to fenpyroximate and any other substances and fenpyroximate does not appear to produce a toxic metabolite produced by other substances. For the purposes of this tolerance action, therefore, EPA has not assumed that fenpyroximate has a common mechanism of toxicity with other substances. For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see the policy statements released by EPA's Office of Pesticide Programs concerning common mechanism determinations and procedures for cumulating effects from substances found to have a common mechanism on EPA's Web site at *http://www.epa.gov/pesticides/cumulative/* . D. Safety Factor for Infants and Children 1. * In general* . Section 408 of FFDCA provides that EPA shall apply an additional tenfold margin of safety for infants and children in the case of threshold effects to account for prenatal and postnatal toxicity and the completeness of the data base on toxicity and exposure unless EPA determines based on reliable data that a different margin of safety will be safe for infants and children. Margins of safety are incorporated into EPA risk assessments either directly through use of a MOE analysis or through using uncertainty (safety) factors in calculating a dose level that poses no appreciable risk to humans. In applying this provision, EPA either retains the default value of 10X when reliable data do not support the choice of a different factor, or, if reliable data are available, EPA uses a different additional safety factor value based on the use of traditional uncertainty factors and/or special FQPA safety factors, as appropriate. 2. *Prenatal and postnatal sensitivity* . The rat and rabbit developmental-toxicity studies were tested at doses that produced minimal maternal toxicity at best. These doses were supported partly by range finding data. The two generation reproductive-toxicity study indicated that maternal (decreased body weight) and offspring toxicity (decreased lactational weight gain) occurred at the same dose, suggesting no evidence of sensitivity or susceptibility. Reproductive parameters were not affected in this 2-generation reproduction study. There are no neurotoxicity studies other than a negative delayed acute-neurotoxicity study in the hen. There was no indication of neurotoxicity present in any of the existing subchronic or chronic toxicity studies. The toxicology data base is complete for FQPA purposes and that there are no residual uncertainties for prenatal/postnatal toxicity. 3. *Conclusion* . There is a complete toxicity data base for fenpyroximate and exposure data are complete or are estimated based on data that reasonably accounts for potential exposures. EPA determined that the 10X SF to protect infants and children should be changed to 1X for the following reasons: i. There are no concerns or residual uncertainties for prenatal or postnatal toxicity. ii. The toxicological data base is complete for the assessment of toxicity and susceptibility following prenatal and/or postnatal exposures. No clinical signs of neurotoxicity or neuropathology were observed in the data base. iii. There are no residual concerns regarding completeness of the exposure data base. iv. The dietary food exposure assessment is Tier I, screening level, which is based on tolerance level residues and assumes 100% of all crops will be treated with fenpyroximate. By using these screening-level assessments, actual exposures/risks will not be underestimated. v. The dietary drinking water assessment utilizes water concentration values generated by models and associated modeling parameters which are designed to provide conservative, health-protective, high-end estimates of water concentrations which will not likely be exceeded. vi. There are currently no registered or proposed residential uses of fenpyroximate. E. Aggregate Risks and Determination of Safety 1. *Acute risk* . An unrefined, acute dietary-exposure assessment was conducted for females 13 to 49 years old. Since an effect of concern attributable to a single dose in toxicity studies was not identified for the general U.S. population, an acute dietary-exposure assessment was not performed for this population. Using the exposure assumptions discussed in this unit for acute exposure, the acute dietary exposure from food and water to fenpyroximate will occupy 6.8% of the acute population adjusted dose

(aPAD)for females 13 years and older. EPA does not expect the aggregate exposure to exceed 100% of the aPAD. 2. *Chronic risk* . Using the exposure assumptions described in this unit for chronic exposure, EPA has concluded that exposure to fenpyroximate from food and water will utilize 9.8% of the chronic adjusted population dose

(cPAD)for the U.S. population, 20% of the cPAD for all infants < 1 year old, and 34% of the cPAD for children 1 to 2 years old. There are no residential uses for fenpyroximate that result in chronic residential exposure to fenpyroximate. Therefore, EPA does not expect the aggregate exposure to exceed 100% of the cPAD. 3. *Aggregate cancer risk for U.S. population* . Fenpyroximate has been classified as not likely to be carcinogenic to humans. Therefore, fenpryroximate is expected to pose at most a negligible cancer risk. 4. *Determination of safety* . Based on these risk assessments, EPA concludes that there is a reasonable certainty that no harm will result to the general population, and to infants and children from aggregate exposure to fenpyroximate residues. IV. Other Considerations A. Analytical Enforcement Methodology An enforcement method has been developed which involves extraction of fenpyroximate from crops with acetone, filtration, partitioning and cleanup, and analysis by gas chromatography using a nitrogen/phosphorous detector. This method allows detection of residues at or above the proposed tolerances. The method has undergone independent laboratory validation. B. International Residue Limits Codex maximum residue limits

(MRLs)are established for residues of fenpyroximate per se in/on apple, grapes, hops, oranges, and cattle commodities. The Codex MRLs differ from the proposed and established tolerances for all commodities except hops. Harmonization with the other Codex MRLs is not possible because the U.S. tolerance expressions include additional metabolites/isomers. There are currently no established Canadian or Mexican MRLs. C. Response to Comments Comments were received from a private citizen in Florham Park, New Jersey. The comments were in response to the notice of filing published in the **Federal Register** of August 10, 2005 (70 FR 46444) (FRL-7729-3). The commenter opposes the establishment of any food tolerances (greater than zero) and exemptions. However, under the existing legal framework provided by section 408 of the FFDCA, EPA is authorized to establish pesticide tolerances or exemptions where persons seeking such tolerances or exemptions have demonstrated that the pesticide meets the safety standard imposed by that statute. The commenter also believes IR-4 and Rutgers University are profiteering, and expressed concerns about the Agency's partnership with IR-4. This comment was earlier addressed in the **Federal Register** of June 30, 2005 (70 FR 37683) (FRL-7718-3). V. Conclusion Therefore, the tolerances are established for combined residues of fenpyroximate, (E)-1,1-dimethylethyl 4-[[[[(1,3-dimethyl-5-phenoxy-1H-pyrazol-4-yl) methylene] amino]oxy]methyl]benzoate and its Z-isomer, (Z)-1,1-dimethylethyl 4-[[[[(1,3-dimethyl-5-phenoxy-1H-pyrazol-4-yl)methylene] amino]oxy]methyl]benzoate, in or on almond, hulls at 3.0 ppm; hop, dried cones at 10 ppm; nut, tree, group 14 at 0.10 ppm; pistachio at 0.10 ppm; fruit, citrus, group 10 at 0.60 ppm; citrus, dried, pulp at 2.5 ppm; citrus, oil at 10 ppm; peppermint, tops at 7.0 ppm; and spearmint, tops at 7.0 ppm. VI. Statutory and Executive Order Reviews This final rule establishes a tolerance under section 408(d) of FFDCA in response to a petition submitted to the Agency. The Office of Management and Budget

(RFA)(5 U.S.C. 601 *et seq.* ) do not apply. 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). Executive Order 13132 requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” This final rule directly regulates growers, food processors, food handlers and food retailers, not States. This action does not alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of section 408(n)(4) of FFDCA. For these same reasons, the Agency has determined that this rule does not have any “tribal implications” as described in Executive Order 13175, entitled *Consultation and Coordination with Indian Tribal Governments* (65 FR 67249, November 6, 2000). Executive Order 13175, requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” “Policies that have tribal implications” is defined in the Executive order to include regulations that have “substantial direct effects on 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.” This rule will not have substantial direct effects on tribal governments, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified in Executive Order 13175. Thus, Executive Order 13175 does not apply to this rule. VII. Congressional Review Act The Congressional Review Act, 5 U.S.C. 801 *et seq.* , as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of this final rule in the **Federal Register** . This final rule is not a “major rule” as defined by 5 U.S.C. 804(2). List of Subjects in 40 CFR Part 180 Environmental protection, Administrative practice and procedure, Agricultural commodities, Pesticides and pests, Reporting and recordkeeping requirements. Dated: August 11, 2006. Donald R. Stubbs, Acting Director, Registration Division, Office of Pesticide Programs. Therefore, 40 CFR chapter I is amended as follows: PART 180—[AMENDED] 1. The authority citation for part 180 continues to read as follows: Authority: 21 U.S.C. 321(q), 346a and 371. 2. Section 180.566 is amended by removing paragraph (a)(1), by redesignating paragraph (a)(2) as paragraph (a)(1), by revising the table in newly redesignated paragraph (a)(1), and by redesignating paragraphs (a)(3) and (a)(4) as paragraphs (a)(2) and (a)(3), respectively, to read as follows: § 180.566 Fenpyroximate; tolerances for residues.

(a)* * *

(1)* * * Commodity Parts per million Almond, hulls 3.0 Citrus, dried pulp 2.5 Citrus, oil 10 Cotton, gin byproducts 10 Cotton undelinted seed 0.10 Fruit, citrus, group 10 0.60 Fruit, pome, group 11 0.40 Grape 1.0 Hop, dried cones 10 Nut, tree, group 14 0.10 Peppermint, tops 7.0 Pistachio 0.10 Spearmint, tops 7.0 [FR Doc. E6-13761 Filed 8-22-06; 8:45 am] BILLING CODE 6560-50-S ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 180 [EPA-HQ-OPP-2006-0561; FRL-8084-3] Phosphorous Acid; Exemption from the Requirement of a Tolerance AGENCY: Environmental Protection Agency (EPA). ACTION: Final rule. SUMMARY: This regulation establishes an exemption from the requirement of a tolerance for residues of phosphorous acid and its ammonium, sodium, and potassium salts in or all food commodities to allow for post-harvest application to stored potatoes at 35,600 parts per million

(ppm)or less of phosphorus acid. This exemption is being issued at EPA's own initiative under the Federal Food, Drug, and Cosmetic Act (FFDCA), as amended by the Food Quality Protection Act of 1996 (FQPA), requesting an exemption from the requirement of a tolerance. This regulation eliminates the need to establish a maximum permissible level for residues of phosphorous acid and its ammonium, sodium, and potassium salts. DATES: This regulation is effective August 23, 2006. Objections and requests for hearings must be received on or before September 7, 2006, and must be filed in accordance with the instructions provided in 40 CFR part 178 (see also Unit I.C. of the SUPPLEMENTARY INFORMATION ). ADDRESSES: EPA has established a docket for this action under docket identification

(ID)number EPA-HQ-OPP-2006-0561. All documents in the docket are listed in the index for the docket. Although listed in the index, some information is not publicly available, e.g., Confidential Business Information

(703)305-5805. FOR FURTHER INFORMATION CONTACT: Linda Hollis, Biopesticides and Pollution Prevention Division (7511P), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone number:

(703)308-8733; e-mail address: *hollis.linda@epa.gov* . SUPPLEMENTARY INFORMATION: I. General Information A. Does this Action Apply to Me? You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. Potentially affected entities may include, but are not limited to: • Crop production (NAICS code 111). • Animal production (NAICS code 112). • Food manufacturing (NAICS code 311). • 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 part 180 through the Government Printing Office's pilot e-CFR site at *http://www.gpoaccess.gov/ecfr* . C. Can I File an Objection or Hearing Request? Under section 408(g) of FFDCA, as amended by the FQPA, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. The EPA procedural regulations which govern the submission of objections and requests for hearings appear in 40 CFR part 178. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2006-0561 in the subject line on the first page of your submission. All requests must be in writing, and must be mailed or delivered to the Hearing Clerk on or before September 7, 2006. In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing that does not contain any CBI for inclusion in the public docket that is described in ADDRESSES . Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit your copies, identified by docket ID number EPA-HQ-OPP-2006-0561, by one of the following methods. • *Federal eRulemaking Portal* : *http://www.regulations.gov* . Follow the on-line instructions for submitting comments. • *Mail* : Office of Pesticide Programs

(703)305-5805. II. Background and Statutory Findings In the **Federal Register** of June 28, 2006 (71 FR 36731-36736) (FRL-8075-5), EPA issued a notice pursuant to section 408(d)(3) of FFDCA, 21 U.S.C. 346a(d)(3), announcing the Agency initiated proposed rule. The proposed rule proposed to amend 40 CFR part 180 by establishing an exemption from the requirement of a tolerance for residues of phosphorous acid and its ammonium, sodium and potassium salt. There were no comments received in response to the Agency initiated proposed rule. Section 408(c)(2)(A)(i) of FFDCA allows EPA to establish an exemption from the requirement for a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the exemption is “safe.” Section 408(c)(2)(A)(ii) of FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings, but does not include occupational exposure. Pursuant to section 408(c)(2)(B), in establishing or maintaining in effect an exemption from the requirement of a tolerance, EPA must take into account the factors set forth in section 408(b)(2)(C), which require EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue.... ” Additionally, section 408(b)(2)(D) of FFDCA requires that the Agency consider “available information concerning the cumulative effects of a particular pesticide's residues ” and “other substances that have a common mechanism of toxicity.” EPA performs a number of analyses to determine the risks from aggregate exposure to pesticide residues. First, EPA determines the toxicity of pesticides. Second, EPA examines exposure to the pesticide through food, drinking water, and through other exposures that occur as a result of pesticide use in residential settings. III. Toxicological Profile Consistent with section 408(b)(2)(D) of FFDCA, EPA has reviewed the available scientific data and other relevant information in support of this action and considered its validity, completeness, and reliability and the relationship of this information to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children. The toxicity profile for phosphorous acid and its ammonium, potassium and sodium salts has already been assessed for its pesticidal use by the Agency and published in support of the tolerance exemption for residues of phosphorous acid in or on all food commodities when used as an agricultural fungicide. See 65 FR 59346 (October 5, 2000). For the purposes of this tolerance exemption amendment, the Agency has relied on the data and/or information previously submitted and has reassessed that data in order to evaluate the request to add post-harvest uses to the tolerance exemption. Additionally, the Agency has reviewed publicly available data and information on phosphoric acid, which is chemically and structurally similar to phosphorous acid. The Agency believes that in combination, the data and other information relied upon for this tolerance exemption supports its conclusion that there is reasonable certainty of no harm that will result from the post-harvest treatment of potatoes with phosphorous acid when used according to the recommended application rate. The technical grade of the active ingredient

(TGAI)of phosphorous acid has also been fully characterized and assessed by the Agency in the Mineral Acids RED (December 1993) since it is an ingredient which falls within the class of compounds known as the mineral acids. Information on phosphorous acid indicates that it is classified in Toxicity Category III for the oral and dermal routes of exposure, and that it is corrosive to the eyes and skin. The corrosive nature of concentrated or technical grade phosphorous acid is not of a concern because phosphorus acid is applied at very dilute solutions such as 0.25 pounds of phosphorus acid per ton of stored potatoes. Phosphorous acid as applied at such very dilute rates is only slightly irritating to the skin. Further, when applied at such a permissible application rate, the residues of the applied phosphorous acid solution have an acute toxicity that is several hundred times lower than the acute toxicity of phosphorous acid in a 100% pure form. As mentioned above, the Agency, on its own initiative, re-examined the previously reviewed toxicity data on an end use product that contains 35.6% phosphorus acid by weight and would be applied at 0.25 pounds of active ingredient per ton of stored potatoes. The results demonstrated that there is a margin of exposure of nearly 1,000 for children or the equivalent of a 30 kilogram

(kg)child consuming 932 pounds of potatoes at one time. This large margin of exposure provides reasonable certainty of no harm at application rates in excess of that for the reviewed end use product. Specifically, an end use product containing 53.8% phosphorous acid by volume (or 35.6% phosphorus acid by weight) was tested on rats at > 5,000 milligrams/kilogram of bodyweight (mg/kg bodyweight). The total amount of phosphorous acid that would be consumed for each kg of potatoes based on a 30 kg child was calculated. Based on these calculations the acute oral toxicity was estimated to be equivalvent to 1,780 mg PA/kg bodyweight for a 30 kg child. This is a conservative scenario which assumes that all of the phosphorous acid that is applied to stored potatoes will remain on the crop such that a 30 kg child would need to consume 424 kg of potatoes (to include peel and flesh) in one sitting. The Agency further assumed that there are 2.2lbs/kg of potatoes which would mean that a child would need to consume 932 pounds of potatoes that have been treated post-harvest with phosphorous acid in one sitting to achieve the equivalent of a limit dose in laboratory animals. This is a margin of exposure of nearly a thousandfold. The toxicological profile of a solution containing 53.8% phosphorous acid is briefly summarized below. 1. *Acute oral

(rat)449404-04* . LD 50 > *5,000 mg/kg body weight (53.8% phosphorous acid aqueous solution* ). The test material is classified as a Toxicity Category IV for acute oral toxicity which demonstrates low toxicity. These results also demonstrate that a dilution of the active ingredient significantly decreases the order of toxicity as compared to the technical grade of the active ingredient

(TGAI)and supports the Agency conclusion that use of the proposed end-use product eliminates the potential of the active ingredient to cause acute toxic effects. There were no adverse effects reported at 5,000 mg/kg. 2. *Acute dermal

(rat)449404-05* . LD 50 > *5,000 mg/kg body weight (53.8% phosphorous acid aqueous solution* ). The test material is classified as a Toxicity Category IV for acute dermal toxicity and demonstrates that a dilution of the active ingredient significantly decreases the order of toxicity as compared to the TGAI and supports the Agency conclusion that use of the proposed end-use product will be slightly irritating to the skin. 3. *Acute inhalation

(rat)449404-06* . LC 50 > *2.06 mg/L (53.8% phosphorous acid aqueous solution* . The test material is classified as a Toxicity Category IV for acute inhalation toxicity and demonstrates that a dilution of the active ingredient to a level that is comparable to concentration of phoshporous acid in the proposed end use product will not cause acute inhalation effects at greater than 2.06 milligrams/liter (mg/L). 4. *Developmental/reproductive effects, chronic effects and carcinogenicity* . There is adequate information available from literature sources to characterize the toxicity of phosphorous acid. Phosphorous acid can affect human health through inhalation of mist, ingestion, and contact with the skin and eyes. In a concentrated form, it will cause corrosive effects (burns or irreversible damage) to the eyes, skin, throat, digestive tract, upper respiratory tract and nose. Signs of overexposure to this chemical are severe burning of eyes and skin, possible nausea and vomiting, coughing, burning and tightness of the chest and shortness of breath. Based on corrosivity and the current use patterns for the mineral acids, EPA did not require these studies as part of the Reregistration Eligibility Decision

(RED)on the Mineral Acids (EPA 738-R-029; December 1993). *A typical end use product was tested for acute toxicity* . As described above, a 53.8% phosphorous acid product did not cause acute toxicity at > 5,000 mg/kg bodyweight. This product would be further diluted when applied to stored potatoes so that something on the order of a quarter of a pound of phosphorous acid would be applied to a ton of stored potatoes. Calculated estimates of the residue from such an application would give a margin of exposure near 1,000 for young children. The Agency concludes therefore that the primary hazards such as corrosivity and irritation that are associated with concentrated phosphorous acid are significantly reduced when used as a post-harvest treatment on potatoes at dilute application rates such as those in the typical end use product tested and evaluated by the Agency. IV. Aggregate Exposures In examining aggregate exposure, section 408 of FFDCA directs EPA to consider available information concerning exposures from the pesticide residue in food and all other non-occupational exposures, including drinking water from ground water or surface water and exposure through pesticide use in gardens, lawns, or buildings (residential and other indoor uses). A. Dietary Exposure The primary issue for adding post-harvest applications to a tolerance exemption is whether such application causes any new exposure that would not be safe. In order to evaluate that issue, the Agency relied on the existing toxicology data already reviewed on phosphorous acid to conduct a conservative dietary exposure and risk assessment to evaluate any additional risk that might result from post-harvest application of this chemical. In the absence of acute oral studies and any magnitude of residue data, the Agency based it's risk assessment on default assumptions, (i.e. information from the inhalation data base was used to compare to dietary risks, a common approach in the Agency), to ensure that the maximum application rates will not result in unacceptable dietary risks. As a result of this risk assessment, the Agency concludes that the use of phosphorous acid as a post-harvest treatment to stored potatoes at the recommended application rate will not add any new exposures or risks and is considered safe. Phosphorous acid rapidly dissociates to form hydrogen and phosphite ions when applied to growing crops in the environment and therefore, it has already been established that no dietary exposure is expected from pre-harvest applications. The degradates of phosphorous acid, hydrogen and phosphite ions are important nutrients for plants and animals. Formation of these degradates however, may be compromised when phosphorous acid is applied as a post-harvest treatment. Since post-harvest treatment of phosphorous acid to potatoes is likely to occur in indoor storage facilities, the oxidation process of phosphorous acid will most likely be slowed down. The fact that the phosphorous acid at the time of post-harvest treatment has not been oxidized to its degradates is clear and it is unknown how much this oxidation process reduces the potential dietary exposure to phosphorous acid under the conditions of post-harvest treatment. However, even with these uncertainties, the Agency believes that when phosphorous acid is used as a post-harvest treatment at the recommended application rate, the remaining residues of PA on stored potatoes will not increase toxicity or add any new dietary exposure or risks and the toxicity of phosphorous acid would still be classified in category IV (which is low toxicity) and will be safe. 1. *Food* . The Agency has determined that post-harvest treatment of phosphorous acid to stored potatoes at the typical application rate evaluated by the Agency may reduce any new anticipated exposure to phosphorous acid. However, even if dietary exposure is not reduced, the Agency believes, based on its reassessment of the data and information, that post-harvest application of phosphorous acid to potatoes is safe. 2. *Drinking water exposure* . No significant drinking water exposure is expected to result from phosphorous acid when applied as a post-harvest treatment to potatoes because phosphorous acid rapidly degrades, is very soluble in water and is applied in storage facilities. B. Other Non-Occupational Exposure There are no residential, school or day care uses proposed for this product. Since the proposed use pattern is for agricultural food crops and post-harvest treatment on potatoes, the potential for non-occupational, non-dietary exposures to phosphorous acid by the general population, including infants and children, is highly unlikely. Further, even if persons were exposed via the non-occupational route, the Agency believes that the low toxicity from a dilute application such as the one evaluated by the Agency is safe and the primary hazards associated with concentrated phosphorous acid (corrosivity and irritation) will be significantly reduced because the end use products are diluted and the residues following application are very low. V. Cumulative Effects Section 408(b)(2)(D)(v) of FFDCA requires that, when considering whether to establish, modify, or revoke a tolerance, the Agency consider “available information” concerning the cumulative effects of a particular pesticide's residues and “other substances that have a common mechanism of toxicity.” These considerations include the possible cumulative effects of such residues on infants and children. BPPD has considered the potential for cumulative effects of phosphorous acid and other substances in relation to a common mechanism of toxicity. phosphorous acid may share a common metabolic mechanism with other salts of phosphorous acid (such as calcium); however, due to the low order of toxicity associated with and lack of reported dietary toxicity associated with the use of phosphorous fertilizers on crops, no cumulative effect from the use of phosphorous acid is expected. VI. Determination of Safety for U.S. Population, Infants and Children 1. *U.S. population* . There is reasonable certainty that no harm will result to the U.S. population, including infants and children, from aggregate exposure to residues of phosphorous acid as a result of preharvest and post-harvest uses, as that toxicity and exposure is expected to be minimal. This includes all anticipated dietary exposures and all other exposures for which there is reliable information. This chemical will be applied as a fungicide to agricultural food crops and as a post-harvest treatment to stored potatoes at 35,600 ppm or less. There is very little potential for dietary exposure to phosphorous acid, exposure in drinking water, and from non-dietary, non-occupational exposures. Once released into the environment, the chemical rapidly dissociates to form hydrogen and phosphite ions, important nutrients for plants and animals. While the formation of these degradates may be compromised when phosphorous acid is applied as a post-harvest treatment, the recommended application rate will significantly reduce any new dietary exposure or risks and is considered to be safe. Many phosphite salts are generally recognized as safe (GRAS). Therefore, the health risk to humans is negligible based on the low toxicity of these ions and a low application rate and magnitude of dilution for post-harvest use of the active ingredient, and one can conclude that there is a reasonable certainty that no harm will result from aggregate exposure to phosphorous acid. 2. *Infants and children.* FFDCA section 408(b)(2)(C) provides that EPA shall apply an additional tenfold margin of exposure

(MOE)for infants and children in the case of threshold effects to account for prenatal and postnatal toxicity and the completeness of the data base on toxicity and exposure, unless EPA determines that a different MOE will be safe for infants and children. Margins of exposure which are often referred to as uncertainty (safety) factors, are incorporated into EPA risk assessments either directly, or through the use of a MOE analysis, or by using uncertainty (safety) factors in calculating a dose level that poses no appreciable risk. In this instance, based on all reliable available information the Agency has reviewed on phosphorous acid, the Agency concludes that the additional MOE is not necessary to protect infants and children and that not adding any additional MOE will be safe for infants and children. Aggregate exposure to phosphorous acid is expected to be minimal. There is very little potential for exposure to phosphorous acid in drinking water and from non-dietary, non-occupational exposures. This chemical will be applied preharvest to agricultural food crops and as a post-harvest treatment on potatoes. Once released into the environment, the chemical rapidly dissociates to form hydrogen and phosphite ions. The hydrogen ions affect pH, but this is moderated by natural means. Many phosphite salts are “GRAS”. Therefore, the health risk to humans is negligible based on the low toxicity of dilute applications of phosphorous acid. One can conclude that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to phosphorous acid residues. VII. Other Considerations A. Endocrine Disruptors EPA is required under section 408(p) of FFDCA, as amended by FQPA, to develop a screening program to determine whether certain substances (including all pesticide active and other ingredients) “may have an effect in humans that is similar to an effect produced by a naturally-occurring estrogen, or other such endocrine effects as the Administrator may designate.” Following the recommendations of its Endocrine Disruptor Screening and Testing Advisory Committee (EDSTAC), EPA determined that there was scientific basis for including, as part of the program, the androgen- and thyroid hormone systems, in addition to the estrogen hormone system. EPA also adopted EDSTAC's recommendation that the program include evaluations of potential effects in wildlife. For pesticide chemicals, EPA will use FIFRA and, to the extent that effects in wildlife may help determine whether a substance may have an effect in humans, FFDCA authority to require the wildlife evaluations. As the science develops and resources allow, screening of additional hormone systems may be added to the Endocrine Disruptor Screening Program (EDSP). At this time, the Agency is not requiring information on the endocrine effects of this active ingredient, phosphorous acid. Based on the weight-of-the-evidence of available data and the absence of any reports to the Agency of sensitivity or other adverse effects, no endocrine system related effects are identified for phosphorous acid and none are expected because of its use. To date there is no evidence that phosphorous acid affects the immune system, functions in a manner similar to any known hormone, or that it acts as an endocrine disruptor. Thus, there is no impact via endocrine-related effects on the Agency's safety finding set forth in this rule amending the phosphorous acid exemption from the requirement of a tolerance. B. Analytical Method(s) Through this action, the Agency is amending the existing exemption from the requirement of a tolerance for phosphorous acid to include post-harvest treatment on potatoes for the reasons stated above which include low toxicity to mammals and negligible exposure from the pesticidal use of products containing phosphorous acid. For the same reasons, the Agency concludes that an analytical method is not required for enforcement purposes for phosphorous acid. C. Codex Maximum Residue Level No maximum residue levels

(MRLs)have been established for phosphorous acid by the Codex Alimentarius Commission (CODEX). VIII. Conclusions The Agency concludes that if products containing phosphorous acid as an active ingredient are used in accordance with label directions, there is a reasonable certainty that no harm to the U.S. population, including infants and children, will result from aggregate exposure to residues of phosphorous acid, when used as an agricultural fungicide on all food commodities or when used as a post-harvest treatment on potatoes. IX. Statutory and Executive Order Reviews This final rule establishes an exemption from the requirement of a tolerance under section 408(d) of FFDCA in response to a petition submitted to the Agency. The Office of Management and Budget

(OMB)has exempted these types of actions from review 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 would require Agency 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 tolerances and exemptions that are established on the basis of a petition under section 408(d) of FFDCA, such as the exemption from the requirement of a tolerance in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act

(RFA)(5 U.S.C. 601 *et seq* .) do not apply. The Agency hereby certifies that this rule will not have significant negative economic impact on a substantial number of small entities. 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). Executive Order 13132 requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” This final rule directly regulates growers, food processors, food handlers and food retailers, not States. This action does not alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of section 408(n)(4) of FFDCA. For these same reasons, the Agency has determined that this rule does not have any “tribal implications” as described in Executive Order 13175, entitled *Consultation and Coordination with Indian Tribal Governments* (65 FR 67249, November 6, 2000). Executive Order 13175, requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” “Policies that have tribal implications” is defined in the Executive order to include regulations that have “substantial direct effects on 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.” This rule will not have substantial direct effects on tribal governments, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified in Executive Order 13175. Thus, Executive Order 13175 does not apply to this rule X. Congressional Review Act The Congressional Review Act, 5 U.S.C. 801 *et seq* ., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of this final rule in the **Federal Register** . This final rule is not a “major rule” as defined by 5 U.S.C. 804(2). List of Subjects in 40 CFR Part 180 Environmental protection, Administrative practice and procedure, Agricultural commodities, Pesticides and pests, Reporting and recordkeeping requirements. Dated: August 14, 2006. Janet L. Andersen, Director, Biopesticides and Pollution Division, Office of Pesticide Programs. Therefore, 40 CFR chapter I is amended as follows: PART 180—[AMENDED] 1. The authority citation for part 180 continues to read as follows: Authority: 21 U.S.C. 321(q), 346a and 371. 2. Section 180.1210 is revised to read as follows: § 180.1210 Phosphorous acid; exemption from the requirement of a tolerance. An exemption from the requirement of a tolerance is established for residues of phosphorous acid and its ammonium, sodium, and potassium salts in or on all food commodities when used as an agricultural fungicide and in or on potatoes when applied as a post-harvest treatment at 35,600 ppm or less phosphorous acid. [FR Doc. E6-13954 Filed 8-22-06; 8:45 am] BILLING CODE 6560-50-S GENERAL SERVICES ADMINISTRATION 41 CFR Parts 301-10, 301-11, 301-50, 301-52, 301-71, and 301-73 [FTR Amendment 2006-04; FTR Case 2005-305] RIN 3090-AI19 Federal Travel Regulation; E-Gov Travel Service

(ETS)and Use of Contract City-Pair Fares AGENCY: Office of Governmentwide Policy, General Services Administration (GSA). ACTION: Final rule. SUMMARY: The General Services Administration

(GSA)is amending the Federal Travel Regulation (FTR), by adding new requirements that address the use of other-than contract city pair airfares, the handling of receipts under the E-Gov Travel Service

(ETS)environment, and new responsibilities for reviewing officials. This final rule also introduces and defines the term “online self-service booking tool” and provides for exceptions under certain circumstances to the required use of an agency’s current Travel Management Service

(TMS)or ETS once the agency has fully deployed ETS. Finally, this final rule requires agencies to develop and submit upon request to the ETS Program Management Office, a plan for maximizing the agency’s adoption rate ( *i.e.* , achieving the highest possible rate of use of the agency’s online self-service booking tool) once the agency has fully deployed ETS. The explanation of changes is addressed in the supplementary information below. The FTR and any corresponding documents may be accessed at GSA’s Web site at *http://www.gsa.gov/ftr* . DATES: Effective Date: September 22, 2006. FOR FURTHER INFORMATION CONTACT: The Regulatory Secretariat (VIR), Room 4035, GS Building, Washington, DC, 20405,

(202)208-7312, for information pertaining to status or publication schedules. For clarification of content, contact Ms. Umeki Gray Thorne, Office of Governmentwide Policy, Travel Management Policy, at

(202)208-7636. Please cite FTR Amendment 2006-04; FTR case 2005-305. SUPPLEMENTARY INFORMATION: Background This final rule amends the Federal Travel Regulation as follows: • Sections 301-10.106 and 301-10.107 are redesignated as sections 301-10.105 and 301-10.106, respectively. • Newly redesignated section 301-10.106 language is revised by removing exceptions to the use of a contract city-pair fare and incorporating them into new section 301-10.107. Note to section 301-10.106 indicates that employees of the Government of the District of Columbia, with the exception of the District of Columbia Courts, are not eligible to use contract city-pair fares even though these employees otherwise may be covered by the FTR. • New section 301-10.107 “Are there any exceptions to the use of a contract city-pair fare,” incorporates exceptions to use of a contract city-pair fare (formerly contained in section 301-10.107, redesignated as section 301-10.106) for agency consideration in deciding whether to approve the use of other-than a contract city-pair fare. Note 1 to section 301-10.107 (previously Note 2 to this section) is revised to state that any group of 10 or more passengers traveling together on the same day, on the same flight, for the same mission requiring group integrity and identified as a group by the travel management system upon booking, may request contract city-pair service on an optional basis. Note 2 to section 301-10.107 is added to clarify that contractors are not eligible to use contract city-pair fares in the performance of their contract. Note 3 to section 301-10.107 is added to encourage agencies to optimize savings from the contract city pair program by comparing the cost savings achieved by use of capacity-controlled coach class contract city-pair fares (MCA, QCA, VCA, etc.) to the unrestricted coach class contract fare (YCA), when capacity-controlled fares are available and meet mission needs. • Section 301-10.108 is amended by informing travelers that they are required to document on their travel authorization the approval and use of a non-contract city-pair air fare. This section also adds a note to clarify that air carrier preference is not a valid reason for approving the use of a non-contract airfare. • Section 301-11.25 is revised to address the handling of receipts when an agency has fully deployed ETS. • The section heading for section 301-50.3 is revised to include the term “TMS” and references to exceptions are included in the text. • Sections 301-50.4 is revised to add TMS in its section heading and to incorporate when an exception to the use of an agency’s current TMS may be granted. • Section 50.6 is redesignated as section 50.8. • New section 301-50.6 is added to define the term, “online self-service booking tool.” • New section 301-50.7 is added to encourage travelers to use the agency’s online self-service booking tool in the ETS environment. A note is added to this section to describe when the use of an online self-service booking tool may not be feasible to use. • Section 301-52.3 is amended by replacing the words “migrate(s) to” in the first and second sentences with the words “fully deploy(s)”. • Section 301-71.201, paragraph (e), is amended to specify that “receipts, statements, justifications, etc.” include scanned electronic images of such documents when they are available under the ETS environment. • Section 301-73.101 is amended to require use of ETS with certain exceptions, and to require agencies to establish goals, a plan and procedures to maximize use of the online self-service booking tool for all travel arrangements once agencies have fully deployed ETS. This section also requires agencies to make its goals, plan, and procedures available to the ETS Program Management Office upon the request of the ETS Program Management Office. • The introductory paragraph in section 302-73.102 is revised to add TMS and conditions under which an agency may authorize an exception to use of the agency’s current TMS. B. Executive Order 12866 This is not a significant regulatory action and, therefore, was not subject to review under Section 6(b) of Executive Order 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804. C. Regulatory Flexibility Act This final rule is not required to be published in the **Federal Register** for notice and comment; therefore, the Regulatory Flexibility Act, 5 U.S.C. 601, *et seq.* , does not apply. D. Paperwork Reduction Act The Paperwork Reduction Act does not apply because the changes to the FTR do not impose recordkeeping or information collection requirements, or the collection of information from offerors, contractors, or members of the public that require the approval of the Office of Management and Budget under 44 U.S.C. 3501, *et seq.* E. Small Business Regulatory Enforcement Fairness Act This final rule is also exempt from congressional review prescribed under 5 U.S.C. 801 since it relates solely to agency management and personnel. List of Subjects in 41 CFR Parts 301-10, 301-11, 301-50, 301-52, 301-71, and 301-73 Government employees, Travel and transportation expenses. Dated: March 9, 2006. David L. Bibb, Acting Administrator of General Services. For the reasons set forth in the preamble, under 5 U.S.C. 5701-5709, GSA amends 41 CFR parts 301-10, 301-11, 301-50, 301-52, 301-71, and 301-73 as set forth below: CHAPTER 301—TEMPORARY DUTY

(TDY)TRAVEL ALLOWANCES PART 301-10—TRANSPORTATION EXPENSES 1. The authority citation for 41 CFR part 301-10 continues to read as follows: Authority: 5 U.S.C. 5707, 40 U.S.C. 121(c); 49 U.S.C. 40118, Office of Management and Budget Circular No. A-126, “Improving the Management and Use of Government Aircraft.” Revised May 22, 1992. §§ 301-10.106 and 301-10.107 [Redesignated as §§ 301-10.105 and 301-10.106] 2. Redesignate §§ 301-10.106 and 301-10.107 as §§ 301-10.105 and 301-10.106, respectively. 3. Revise newly redesignated § 301-10.106 to read as follows: § 301-10.106 When must I use a contract city-pair fare? If you are a civilian employee of an agency as defined in § 301-1.1 of this chapter, you must always use a contract city-pair fare for scheduled air passenger transportation service unless one of the limited exceptions in § 301-10.107 exist. An Internet listing of contract city-pair fares is available at *http://www.gsa.gov/citypairs* . Note to § 301-10.106: Employees of the Government of the District of Columbia, with the exception of the District of Columbia Courts, are not eligible to use contract city-pair fares even though these employees otherwise may be covered by the FTR. 4. Add new § 301-10.107 to read as follows: § 301-10.107 Are there any exceptions to the use of a contract city-pair fare? Yes, your agency may authorize use of a fare other-than a contract city-pair fare when—

(a)Space on a scheduled contract flight is not available in time to accomplish the purpose of your travel, or use of contract service would require you to incur unnecessary overnight lodging costs which would increase the total cost of the trip;

(b)The contractor’s flight schedule is inconsistent with explicit policies of your Federal department or agency with regard to scheduling travel during normal working hours;

(c)A non-contract carrier offers a lower fare to the general public that, if used, will result in a lower total trip cost to the Government (the combined costs of transportation, lodging, meals, and related expenses considered); Note to paragraph (c): This exception does not apply if the contract carrier offers the same or lower fare and has seats available at that fare, or if the fare offered by the non-contract carrier is restricted to Government and military travelers performing official business and may be purchased only with a contractor-issued charge card, centrally billed account ( *e.g* ., YDG, MDG, QDG, VDG, and similar fares) or GTR where the two previous options are not available;

(d)Cost effective rail service is available and is consistent with mission requirements; or

(e)Smoking is permitted on the contract air carrier and the nonsmoking section of the contract aircraft is not acceptable to you. Note 1 to § 301-10.107: Any group of 10 or more passengers traveling together on the same day, on the same flight, for the same mission, requiring group integrity and identified as a group by the travel management system upon booking is not a mandatory user of the Government's contract city-pair fares. For group travel, agencies are expected to obtain air passenger transportation service that is practical and cost effective to the Government. Note 2 to § 301-10.107: Contractors are not authorized to use contract city-pair fares to perform travel under their contracts. Note 3 to § 301-10.107: If the Government contract city-pair carrier offers a lower cost capacity-controlled coach class contract fare (MCA, QCA, VCA, etc.) in addition to the unrestricted coach class contract fares (YCA), the traveler should use the lower cost capacity-controlled fare when it is available and meet mission needs. 5. Revise § 301-10.108 to read as follows: § 301-10.108 What requirements must be met to use a non-contract fare?

(a)Before purchasing a non-contract fare you must meet one of the exception requirements listed in § 301-10.107 and show approval on your travel authorization to use a non-contract fare; and

(b)If the non-contract fare is non-refundable, restricted, or has specific eligibility requirements, you must know or reasonably anticipate, based on your planned trip, that you will use the ticket; and

(c)Your agency must determine that the proposed non-contract transportation is practical and cost effective for the Government. Note to § 301-10.108: Carrier preference is not a valid reason for using a non-contract fare. PART 301-11—PER DIEM EXPENSES 6. The authority citation for 41 CFR part 301-11 continues to read as follows: Authority: 5 U.S.C. 5707. 7. Revise § 301-11.25 to read as follows: § 301-11.25 Must I provide receipts to substantiate my claimed travel expenses? Yes. You must provide a lodging receipt and a receipt for every authorized expense over $75, or provide a reason acceptable to your agency explaining why you are unable to furnish the necessary receipt(s) (see § 301-52.4 of this chapter). Note to 301-11.25: Hard copy receipts should be electronically scanned and submitted with your electronic travel claim when your agency has fully deployed ETS and notifies you that electronic scanning is available within your agency (see § 301-50.3 of this chapter). You may submit a hard copy receipt, in accordance with your agency’s policies, to support a claimed travel expense only when electronic imaging is not available within your agency. PART 301-50—ARRANGING FOR TRAVEL SERVICES 8. The authority citation for 41 CFR part 301-50 continues to read as follows: Authority: 5 U.S.C. 5707; 40 U.S.C. 121 (c). 9. Amend § 301-50.3 by revising the section heading and adding a sentence at the end of the section to read as follows: § 301-50.3 Must I use the ETS or TMS to arrange my travel? * * * Your agency may grant an exception to required use of TMS/ETS under §§ 301-50.4, 301-73.102, or 301-73.104 of this chapter. 10. Revise § 301-50.4 to read as follows: § 301-50.4 May I be granted an exception to the required use of TMS or ETS once my agency has fully deployed ETS? Yes, your agency head or his/her designee may grant an individual case exception to required use of your agency’s current TMS or to required use of ETS once your agency has fully deployed ETS, but only when your travel meets one of the following conditions:

(a)Such use would result in an unreasonable burden on mission accomplishment ( e.g. , emergency travel is involved and TMS/ETS is not accessible; you are performing invitational travel; or you have special needs or require disability accommodations under part 301-13 of this chapter).

(b)Such use would compromise a national security interest.

(c)Such use might endanger your life ( *e.g.* , you are traveling under the Federal witness protection program, or you are a threatened law enforcement/investigative officer traveling under part 301-31 of this chapter). § 301-50.6 [Redesignated as § 301-50.8] 11. Redesignate § 301-50.6 as § 301-50.8 12. Add new §§ 301-50.6 and 301-50.7 to read as follows: § 301-50.6 What is an “online self-service booking tool?” An online self-service booking tool is an Internet based system that permits travelers to make their own reservations for transportation ( *e.g* ., air, rail, and car rental) and lodging. ETS and some agency TMS’s incorporate a self service booking tool. § 301-50.7 Should I use the online self-service booking tool once ETS is available within my agency? Yes, you should use the online self-service booking tool offered by ETS or your agency’s TMS until ETS becomes available to you. Note to section 301-50.7: Some extenuating circumstances for which you may not be able to use online self-service booking are

(1)when you are attending a conference where the conference sponsor has negotiated with one or more lodging facilities to set aside a specific number of rooms for conference attendees and to ensure that a set aside room is available to you, you are required to book lodging directly with the lodging facility,

(2)when your travel is to a remote location and it is not possible to book lodging accommodations through the TMS or ETS, or

(3)when such travel arrangements are so complex and circumstance will not allow you to book your travel through an online self-service booking tool. PART 301-52—CLAIMING REIMBURSEMENT 13. The authority citation to part 301-52 continues to read as follows: Authority: 5 U.S.C. 5707; 40 U.S.C. 121(c); Sec. 2., Pub. L. 105-264, 112 Stat. 2350 (5 U.S.C. 5701 note). § 301-52.3 [Amended] 14. Amend § 301-52.3 in the first sentence by removing “migrates to” and adding “fully deploys” in its place, and the second sentence, by removing “migrate to” and adding “fully deploy” in its place. PART 301-71—AGENCY TRAVEL ACCOUNTABILITY REQUIREMENTS 15. The authority citation for part 301-71 is revised to read as follows: Authority: 5 U.S.C. 5707; 40 U.S.C. 121(c); Sec 2. Pub. L. 105-264, 112 Stat. 2350 (5 U.S.C. 5701 note). 16. Amend section § 301-71.201 by revising paragraph

(e)to read as follows: § 301-71.201 What are the revising official’s responsibilities?

(e)The required receipts, statements, justifications, etc. are attached to the travel claim, or once the agency fully deploys ETS and implements electronic scanning, the electronic travel claim includes scanned electronic images of such documents. PART 301-73—TRAVEL PROGRAMS 17. The authority citation for part 301-73 continues to read as follows: Authority: 5 U.S.C. 5707; 40 U.S.C. 121(c). 18. Revise § 301-73.101 to read as follows: § 301-73.101 How must we prepare to implement ETS? You must prepare to implement ETS as expeditiously as possible by—

(a)Developing a migration plan and schedule to deploy ETS across your agency as early as possible with full deployment required no later than September 30, 2006;

(b)Requiring employees to use your ETS unless you approve an exception under § 301-50.6, § 301-73.102 or § 301-73.104;

(c)Establishing goals, plans and procedures to maximize agency-wide traveler use of your online self-service booking tool once you have fully deployed ETS within your agency. These goals, plans, and procedures should be available for submission to the ETS PMO upon its request. Note 1 to § 301-73.101: Your agency should work with the Office of Management and Budget

(OMB)to allocate budget and personnel resources to support ETS migration and data exchange. Your agency is responsible for providing the funds required to establish interfaces between the ETS standard data output and applicable business systems ( *e.g* ., financial, human resources, etc.). Note 2 to § 301-73.101: Best practices show that organizations are able to realize significant benefits once they achieve a 70 percent or greater self-booking rate. 19. Revise § 301-73.102 to read as follows: § 301-73.102 May we grant a traveler an exception from required use of TMS or ETS once we have fully deployed ETS within the agency?

(a)Yes, your agency head or his/her designee may grant an individual case by case exception to required use of your agency’s current TMS or to required use of ETS once it is fully deployed within the agency, but only when travel meets one of the following conditions:

(1)Such use would result in an unreasonable burden on mission accomplishment (e.g., emergency travel is involved and TMS/ETS is not accessible; the traveler is performing invitational travel; or the traveler has special needs or requires disability accommodations in accordance with part 301-13 of this chapter).

(2)Such use would compromise a national security interest.

(3)Such use might endanger the traveler’s life (e.g., the individual is traveling under the Federal witness protection program, or is a threatened law enforcement/investigative officer traveling under part 301-31 of this chapter).

(b)Any exception granted must be consistent with any contractual terms applicable to your current TMS or ETS, once it is fully deployed, and must not cause a breach of contract terms. [FR Doc. E6-13917 Filed 8-22-06; 8:45 am] BILLING CODE 6820-14-S FEDERAL COMMUNICATIONS COMMISSION 47 CFR Part 15 [ET Docket No. 04-37 and ET Docket No. 03-104; FCC 06-113] Broadband Over Power Line Systems AGENCY: Federal Communications Commission. ACTION: Final rule. SUMMARY: This document responds to the petitions for reconsideration of the Commission's rules for Access Broadband over Power Line (Access BPL) devices adopted in the *Report and Order* in this proceeding. The Commission is affirming the technical rules for BPL, and denying petitions for reconsideration that request delay, further study, or the exclusion of particular additional frequencies. The Commission is amending the rules to change the exclusion zone requirement for the ten listed radio astronomy facilities to a consultation requirement, and to add a new exclusion zone for one Very Large Array

(VLA)radio astronomy observatory site at 73.0-74.6 MHz. In addition, it is also amending the rules to add prospective protection for relocated aeronautical facilities and to correct the coordinates and email contact for the aeronautical facilities subject to BPL consultation. The Commission affirms the deadline for requiring certification for any equipment manufactured, imported or installed on BPL systems, with the proviso that uncertified equipment already in inventory can be used for replacing defective units or to supplement equipment on existing systems for one year within areas already in operation. The Commission believes these changes will further the development and growth of BPL devices. It is denying the petitions for reconsideration in all other respects. DATES: Effective September 22, 2006. FOR FURTHER INFORMATION CONTACT: Anh Wride, Office of Engineering and Technology,

(202)418-0577, e-mail: *Anh.Wride@fcc.gov.* SUPPLEMENTARY INFORMATION: This is a summary of the Commission's *Memorandum Opinion and Order* , ET Docket No. 04-37, and ET Docket No. 03-104, adopted August 3, 2006 and released August 7, 2006. The full text of this document is available on the Commission's Internet site at *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 Memorandum Opinion and Order 1. In the *Memorandum Opinion and Order* , the Commission further amends part 15 of its rules regarding the unlicensed operation of Access broadband over power line

(BPL)systems. Specifically, the rules are amended to change the exclusion zone requirement for the ten listed radio astronomy facilities to a consultation requirement, and to add a new exclusion zone for one Very Large Array

(VLA)radio astronomy observatory site at 73.0-74.6 MHz. In addition, the Commission amends the rules to add prospective protection for relocated aeronautical facilities and to correct the coordinates and email contact for the aeronautical facilities subject to BPL consultation. The Commission affirms the July 7, 2006 deadline for requiring certification for any equipment manufactured, imported or installed on BPL systems, with the proviso that uncertified equipment already in inventory can be used for replacing defective units or to supplement equipment on existing systems for one year within areas already in operation. The Commission believes these changes will further the development and growth of BPL devices. The Commission denies the petitions for reconsideration in all other respects. A. Notification to the Access BPL Database 2. In the *Report and Order* , 70 FR 1360, January 7, 2005, in this proceeding, the Commission adopted a requirement that the Access BPL industry establish a publicly accessible database for system information. Under this requirement, entities operating Access BPL systems must provide to the BPL industry designated database manager certain information on BPL installations 30 days prior to the initiation of any operation or service. The BPL industry requested elimination of this 30-day advance notification. 3. The Commission denied this request. It stated that the purpose of the database notification requirement is to ensure that licensed users of the spectrum have a publicly accessible and centralized source of information on BPL operations to determine whether there may be Access BPL operations on particular frequencies within their local area so that any incident of harmful interference can be resolved should it occur. The Commission noted that the BPL public database serves a unique function to identify the location and operating characteristics of BPL systems to entities other than those entitled to advance notification. The Commission however provided several clarifications regarding the notification process. B. Transition Period 4. The rules adopted in the *Report and Order* require that all Access BPL devices that are manufactured, imported, marketed or installed 18 months or later after the **Federal Register** publication of the *Report and Order* , i.e., after July 7, 2006, must comply with the newly adopted requirements of Subpart G of part 15 for BPL devices, including certification of the equipment. The BPL industry requested an extension for another 18-month period. 5. The Commission denied this request. It noted that an important element of interference avoidance and mitigation is the next generation of BPL equipment and its adherence to the rules adopted in the *Report and Order* . However, because BPL equipment manufacturers are only now submitting equipment for certification under the new rules, the Order permits for a period of 1 year the installation of existing equipment that otherwise meets the part 15 rules to replace defective units or to supplement equipment on existing systems within the areas where BPL systems are already in operation. C. BPL Technical Parameters 6. *Extrapolation factor.* In the *Report and Order* , the Commission specified measurement guidelines that require BPL systems to be tested *in situ* at three typical installations with overhead lines. Because it may not be possible or practicable to measure at the proposed fixed distances of 10 and 3 meters, distance extrapolation would be necessary for *in situ* testing and the *Report and Order* requires the use of the existing part 15 distance extrapolation factors, i.e., 40 dB/decade for frequencies below 30 MHz and 20 dB/decade for frequencies above 30 MHz. ARRL requested that the rules be changed to use 20 dB/decade at all frequencies for testing BPL systems. 7. The Commission denied ARRL's petition. It stated that ARRL did not submit a convincing argument for modifying this requirement, and therefore it retains the existing extrapolation factors in part 15. 8. *Required Notch Depth.* In the *Report and Order* , the Commission required that Access BPL systems have the capability to remotely reduce power and adjust operating frequencies to avoid site-specific, local use of the same spectrum used by licensed services. Notch filters are required to be capable of attenuating emissions to a level at least 20 dB below the applicable part 15 limits in the case of frequencies below 30 MHz and to a level at least 10 dB below the applicable part 15 limits in the case of frequencies above 30 MHz. ARRL requested technical analysis supporting the 20 dB notch depth in the rules. 9. The Commission reiterated that Access BPL operator is required to ensure that its operations do not cause harmful interference to licensed operators and that, if a 20 dB notch is not sufficient to eliminate such interference in specific cases, the operator must take further actions to eliminate that interference to fixed licensed operations. The Commission also explained in detail its decision for the selection of the 20 dB standard in response to ARRL's petition for reconsideration. 10. The Commission therefore clarified that, except for mobile operations, Access BPL operators are responsible for resolving harmful interference that may occur even where their systems employ a 20/10 dB notch. Where an Access BPL operator implements such notching, the Commission will not provide any further protection to mobile operations, nor will it require the operator to resolve complaints of harmful interference to mobile operations over and above the “notch.” 11. *Protection of the amateur radio service.* On October 18, 2005, the ARRL filed a Petition for Issuance of Further Notice of Proposed Rule Making (FNPRM), in which it requested consideration of the same substantive points it submitted in its previous pleadings in this proceeding, *e.g.* , avoid use of amateur radio frequencies by Access BPL systems, avoid use of the HF frequencies by Access BPL systems on overhead medium voltage lines, and require use of a 20 dB extrapolation factor in place of the existing 40 dB extrapolation factor. Although styled as a Petition for Further Notice of Proposed Rule Making,” ARRL's pleading effectively constitutes a petition for reconsideration, as it seeks the same results previously sought by ARRL in this proceeding. The Commission therefore treated the Petition for FNPRM as a petition for reconsideration. 12. The Commission denied ARRL's Petition, and noted that the rules adopted in the *Report and Order* , as modified by this *Memorandum Opinion and Order* , adequately address interference concerns and measurement procedures raised by Access BPL. The Commission noted that one “solution” proposed by ARRL in its Petition for FNPRM—the use of wireless links for connection to the home—is not Access BPL, and thus, while a permissible service, is not pertinent to this proceeding. The other proposed “solution”—complete avoidance of all HF frequencies—would needlessly restrict BPL system design and reduce system capacity, without regard to whether there are amateurs that need protection from a particular BPL installation. The Commission concluded that this would result in a grossly inefficient utilization of Access BPL capacity, reducing the potential benefits of BPL and increasing its cost to the public, without a corresponding benefit or need. D. Further Study of Access BPL Characteristics and Other Technical Requests 13. A number of parties requested that all BPL deployments be prohibited pending the adoption of a definition for harmful interference and the completion of all ongoing studies of BPL and the initiation of further studies of BPL interference characteristics. They also requested more stringent technical restrictions on BPL operations. 14. The Commission denied all these requests. It stated that it has taken a pro-active approach with regard to protection of licensed radio services in the *Report and Order* by placing additional technical and operational restrictions on BPL systems; and that the rules regarding emission levels and signal notching adopted in the *Report and Order* are adequate to fully protect fixed amateur operations and to protect the reasonable expectations and needs of mobile amateur operations. The Commission also noted that staying the rules as the ARRL requests could leave licensed radio services with less protection than is provided under the rules adopted in the BPL *Report and Order* . It also provided a detailed explanation for the basis of its decision making, and the Commission's statutory responsibilities under the Communications Act. 15. The Commission also disagreed with ARRL's assertion that allegations of interference at some experimental BPL sites demonstrate that the adopted mitigation rules are ineffective. It stated that the BPL rules adopted in the *Report and Order* must be given time to be implemented. It stated that Access BPL equipment currently deployed is typically not designed to fully incorporate the interference mitigation capabilities set forth in the rules that have been put in place. Therefore, until Access BPL operators implement all of the required mitigation techniques, the Commission finds that it is premature to conclude that these rules are ineffective. E. Other Requests 16. *Federal Government radio astronomy facility.* The part 15 rules require Access BPL systems to avoid operating on the 73.0-74.6 MHz band used by the ten Very Long Baseline Array facilities of radio astronomy observatories within specific distances. The National Telecommunications and Information Administration

(NTIA)requests changes in the exclusion zone requirements for certain radio astronomy facilities, including adding a new exclusion zone for one Very Large Array

(VLA)astronomy observatory site. It also requests a modification in the consultation requirements of the BPL rules to continue to protect the sites no longer covered by the exclusion zones. The Commission granted NTIA's request. 17. *Aeronautical service.* In order to protect aeronautical operations, Access BPL systems operating on medium voltage lines are required to avoid operating in the frequency bands reserved for Aeronautical

(R)frequencies and in the 74.8-75.2 MHz band. Aeronautical Radio, Inc. (ARINC) representing the Aeronautical Service requested that both In-House and Access BPL systems operating over low-voltage lines be required to avoid using certain aeronautical frequencies. The Commission denied this request. It stated that it has already fully considered and disposed of this concern in the BPL *Report and Order* , and ARINC has provided no new argument or factual data to warrant reconsideration of this issue. It also noted that no interference complaints from aeronautical users traceable to In-House or low voltage BPL have been received or reported. The Commission however granted ARINC's request that the rules be clarified to state that continued protection will be provided for aeronautical facilities that are relocated. 18. *Broadcast television service.* The part 15 rules allow Access BPL systems to operate between 1.7 and 80 MHz, over medium or low voltage lines. Television channels 2 to 5 are located within the bands from 54 MHz to 82 MHz. The Association for Maximum Service Television, Inc.

(MSTV)representing the *Broadcast Television service* requested that BPL operations be confined to below 50 MHz to avoid disruptions TV service, and to Digital Television transition in particular. The Commission denied this request. It noted that MSTV has presented no compelling technical argument to justify this request. It pointed out that all known Access BPL equipment currently operates below 50 MHz, and it stated that if BPL equipment that operates on TV band frequencies were developed in the future to increase capacity, a system using such equipment could avoid any potential for interfering with TV service by operating on channels that are not used by TV stations in the system's service area. 19. *Critical infrastructure industry (CII).* The rules require Access BPL operators to notify and consult with the public safety agencies in their local areas at least 30 days in advance of initiation of service and to respond to complaints of harmful interference from public safety users within 24 hours. The rules do not, however, make any such provision for protection of CII entities. The American Petroleum Institute

(API)requested that oil and natural gas companies be considered as Critical Infrastructure Industries, as identified in the *800 MHz Order* , in order to place them on par with public safety entities. The Commission denied API's request. It stated that its *800 MHz Order* is not directly pertinent to the considerations in the BPL proceeding, and in any event, did not give absolute public safety status to Critical Infrastructure Industries. 20. *Miscellaneous requests for additional operational restrictions on BPL* . A number of parties request placing additional operational and administrative restrictions on BPL operations. The Commission denied all of these requests. Final Regulatory Flexibility Analysis 21. The Regulatory Flexibility Act of 1980, as amended (RFA), 1 requires that a regulatory flexibility analysis be prepared for rulemaking proceedings, unless the agency certifies that “the rule will not have a significant economic impact on a substantial number of small entities.” 2 The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” 3 In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. 4 A “small business concern” is one which:

(1)Is independently owned and operated;

(2)is not dominant in its field of operation; and

(3)satisfies any additional criteria established by the Small Business Administration (SBA). 5 1 The RFA, *see* 5 U.S.C 601-612, has been amended by the Contract With America Advancement Act of 1996, Public Law 104-121, 110 Stat. 847

(1966)(CWAAA). Title II of the CWAAA is the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA). 2 5 U.S.C. 605(b). 3 5 U.S.C. 601(6). 4 5 U.S.C. 601(3) (incorporating by reference the definition of “small-business concern” in the Small Business Act, 15 U.S.C. 632). Pursuant to 5 U.S.C. 601(3), the statutory definition of a small business applies “unless an agency, after consultation with the Office of Advocacy of the Small Business Administration and after opportunity for public comment, establishes one or more definitions of such term which are appropriate to the activities of the agency and publishes such definition(s) in the **Federal Register** .” 5 15 U.S.C. 632. 22. The *Report and Order* modified the part 15 rules to allow for Access Broadband over Power Line (Access BPL) systems, a new type of carrier current system that operates on an unlicensed basis under part 15. A Final Regulatory Flexibility Analysis was incorporated in the *Report and Order* . 6 Following publication of the *Report and Order* , fifteen parties filed for reconsideration regarding various aspects of the part 15 BPL regulations. A list of the petitioners, along with the abbreviations used to identify them and the parties that filed comments in response to the petitions, is attached as Appendix A to the *Memorandum Opinion and Order* . In the *Memorandum Opinion and Order* , the Commission amends the rules to replace the exclusion zone requirement for the ten listed radio astronomy facilities with an exclusion zone for one Very Large Array

(VLA)radio astronomy observatory site at 73.0-74.6 MHz, which would significantly reduce potential deployment constraints on Access BPL installations. In addition, we are amending the rules to add prospective protection for relocated aeronautical facilities, which merely continues to provide protection to these stations. Finally, we correct the coordinates and e-mail contacts for the aeronautical facilities subject to BPL consultation. 6 *See Report and Order* in ET Docket No. 04-37, 19 FCC Rcd 21265, 21322 (2004), 70 FR 1360, January 7, 2005. 23. The Commission found that these changes will not result in a “significant economic burden” on manufacturers. Therefore, the Commission certified that the amendments included in this *Memorandum Opinion and Order* will not have a significant economic impact on a substantial number of small entities. 24. The Commission will send a copy of the *Memorandum Opinion and Order* , including a copy of this final certification, in a report to Congress pursuant to the Small Business Regulatory Enforcement Fairness Act of 1996. 7 In addition, the *Memorandum Opinion and Order* and this certification will be sent to the Chief Counsel for Advocacy of the Small Business Administration. 7 *See* 5 U.S.C. 801(a)(1)(A). Ordering Clauses 25. Pursuant to the authority contained in sections 4(i), 301, 302, 303(e), 303(f) and 303(r) of the Communications Act of 1934, as amended, 47 U.S.C. sections 154(i), 301, 302, 303(e), 303(f) and 303(r), this Memorandum Opinion and Order *is adopted* and part 15 of the Commission's rules *are amended* as set forth in the attached rules change effective September 22, 2006. 26. Pursuant to the authority contained in sections 4(i), 301, 302, 303(e), 303(f) and 303(r) of the Communications Act of 1934, as amended, 47 U.S.C. sections 154(i), 301, 302, 303(e), 303(f) and 303(r), the request for partial reconsideration filed by the National Telecommunications and Information Administration on February 14, 2005 *is granted* to the extent indicated. 27. Pursuant to the authority contained in sections 4(i), 301, 302, 303(e), 303(f) and 303(r) of the Communications Act of 1934, as amended, 47 U.S.C. sections 154(i), 301, 302, 303(e), 303(f) and 303(r), the motion for partial reconsideration filed by Current Technologies, LLC, Amperion, Inc., the United Power Line Council, and Aeronautical Radio, Inc. on February 7, 2005 *is granted in part and denied in part* to the extent indicated. 28. Pursuant to the authority contained in sections 4(i), 301, 302, 303(e), 303(f) and 303(r) of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 301, 302, 303(e), 303(f) and 303(r), the motion for reconsideration filed by the American Petroleum Institute, the Amateur Radio Relay League, the Association for Maximum Services Television, Inc., and Cohen, Dippell and Everist, P.C. filed on February 7, 2005, W. Lee McVey filed on January 18, 2005, the National Antenna Consortium and the Amherst Alliance filed on January 18, 2005, Steven E. Matda filed on January 19, 2005, G. Scott Davis filed on January 21, 2005, Cortland E. Richmond filed on December 14, 2004, and James Edwin Whedbee filed on October 18, 2004, *is denied* to the extent indicated. 29. The Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, *shall send* a copy of this Memorandum Opinion and Order, including the Final Regulatory Flexibility Certification, to the Chief Counsel for Advocacy of the Small Business Administration. List of Subjects in 47 CFR Part 15 Communications equipment, Radio. Federal Communications Commission. Marlene H. Dortch, Secretary. Rules Changes For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR part 15 to read as follows: PART 15—RADIO FREQUENCY DEVICES 1. The authority citation for part 15 continues to read as follows: Authority: 47 U.S.C. 154, 302a, 303, 304, 307, 336, and 544a. 2. Section 15.611 is amended by adding paragraph (c)(1)(iii) to read as follows: § 15.611 General technical requirements.

(c)* * *

(1)* * *

(iii)At locations where an Access BPL operator attenuates radiated emissions from its operations in accordance with the above required capabilities, we will not require that operator to take further actions to resolve complaints of harmful interference to mobile operations. 3. Section 15.615 is amended by removing paragraph (f)(2)(iii) and by revising the introductory text of paragraphs (f)(2), (f)(3), and paragraph (f)(3)(ii) and by adding the point of contact for National Science Foundation, immediately following paragraph (f)(3)(ii) and by revising the point of contact text for ARINC located before Table 3b and by revising Table 3b to read as follows: § 15.615 General administrative requirements.

(f)* * *

(2)*Exclusion zones* . Exclusion zones encompass the operation of any Access BPL system within 1km of the boundary of coast station facilities at the coordinates listed in Tables 2 and 2.1. Exclusion zones also encompass the operation of Access BPL systems using overhead medium voltage power lines within 65 km of the Very Large Array observatory located at the coordinate 34°04′43.50″; N, 107°37′03.82″ W. Exclusion zones further encompass the operation of Access BPL systems using overhead low voltage power lines or underground power lines within 47 km of the Very Large Array observatory located at the coordinate 34°04′43.50″; N, 107°37′ 03.82″ W. Within the exclusion zones for coast stations, Access BPL systems shall not use carrier frequencies within the band of 2173.5-2190.5 kHz. Within the exclusion zone for the Very Large Array radio astronomy observatory, Access BPL systems shall not use carrier frequencies within the 73.0-74.6 MHz band.

(3)*Consultation areas* . Access BPL operators shall provide notification to the appropriate point of contact specified regarding Access BPL operations at any frequencies of potential concern in the following consultation areas, at least 30 days prior to initiation of any operation or service. The notification shall include, at a minimum, the information in paragraph

(a)of this section. We expect parties to consult in good faith to ensure that no harmful interference is caused to licensed operations and that any constraints on BPL deployments are minimized to those necessary to avoid harmful interference. In the unlikely event that a new or relocated aeronautical receive station is established for the 1.7-30 MHz band at a coordinate not specified in Table 3b, Access BPL operators are also required to coordinate with the appropriate point of contact regarding Access BPL operations at any frequencies of potential concern in the new or relocated consultation areas, and to adjust their system operating parameters to protect the new or relocated aeronautical receive station.

(f)* * *

(3)* * *

(ii)For frequencies in the 1.7-80.0 MHz frequency range, the areas within 4 km of facilities located at the coordinates specified for radio astronomy facilities in 47 CFR 2.106, Note U.S. 311. *Point of contact:* Electromagnetic Spectrum Manager, National Science Foundation, Division of Astronomical Sciences, 4201 Wilson Blvd., Suite 1045, Arlington, VA 22230,

(703)292-4896, *esm@nsf.gov* . Table 3b.—Consultation Area Coordinates for Aeronautical Receive Stations (1.7-30 MHz) Locale Latitude Longitude Southampton, NY 40°55′15″ N 72°23′41″ W Molokai, HI 21°12′23″ N 157°12′30″ W Oahu, HI 21°22′27″ N 158°05′56″ W Half Moon Bay, CA 37°39′64″ N 122°24′44″ W Pt. Reyes, CA 38°06′00″ N 122°56′00″ W Barrow, AK 71°17′24″ N 156°40′12″; W Guam 13°28′12″ N 144°48′0.0″ E (note: Eastern Hemisphere) NY Comm Center, NY 40°46′48″ N 73°05′46″ W Cedar Rapids, IA 42°02′05.0″ N 91°38′37.6″ W Beaumont, CA 33°54′27.1″ N 116°59′49.1″ W Fairfield, TX 31°47′02.6″ N 96°47′03.0″ W Houston, TX 29°36′35.8″ N 95°16′54.8″ W Miami, FL 25°49′05″ N 80°18′28″ W Note: Systems of coordinates conform to NAD 83. *Point of contact:* ARINC, 2551 Riva Road, Annapolis, MD 21401, Tel: 1-800-633-6882, Fax: 410-266-2329, e-mail: *bplnotifications@arinc.com* , *http://www.arinc.com* . [FR Doc. E6-13967 Filed 8-22-06; 8:45 am] BILLING CODE 6712-01-P FEDERAL COMMUNICATIONS COMMISSION 47 CFR Part 64 [CG Docket No. 03-123; DA 06-1627] Telecommunications Relay Services and Speech-to-Speech Services for Individuals With Hearing and Speech Disabilities AGENCY: Federal Communications Commission. ACTION: Clarification. SUMMARY: In this document, the Commission clarifies waivers of certain telecommunications relay services

(TRS)mandatory minimum standards for captioned telephone relay service, a form of TRS, which were set forth in a clarification and waiver document. The clarification and waiver document waived the following mandatory minimum standards for the provision of captioned telephone service: communications assistants

(CAs)must be competent in interpreting typewritten American Sign Language (ASL); TRS providers must give CAs oral-to-type tests; and CAs may not refuse sequential calls. The Commission clarifies that these requirement do not apply to captioned telephone services that use voice recognition technologies (instead of typing) to convey messages, and that do not have the CA play a role in setting up the calls. DATES: Effective August 14, 2006. 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 06-1627, *Telecommunications Relay Services and Speech-to-Speech Services for Individuals with Hearing and Speech Disabilities,* Order, CG Docket No. 03-123, adopted August 14, 2006, released August 14, 2006 clarifying waivers of certain TRS mandatory minimum standards for caption telephone relay service waived in the clarification and waiver document published at 68 FR 55898, September 29, 2003. The full text of document DA 06-1627 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 06-1627 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 *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 06-1627 can also be downloaded in Word or Portable Document Format

(PDF)at: *http://www.fcc.gov/cgb/dro.* Synopsis Background On September 29, 2003, the Commission published a clarification and waiver document that recognized captioned telephone service as a form of TRS compensable from the Interstate TRS Fund. As a general matter, captioned telephone service uses a special telephone that has a text display. It permits the user—typically someone who has the ability to speak and some residual hearing—to speak directly to the other party to the call, and in return to both listen to what is said over the telephone and simultaneously read captions of what the other person is saying. A CA using specially developed voice recognition technology generates the captions. As a result, there is no typing by the captioned telephone user at any time during the call, and the CA types only in rare instances when, *e.g.* , words or proper names are used that the computer does not recognize. Further, as presently offered, to use this service the consumer directly dials the number he or she wishes to call, not the number of a relay provider, and is automatically connected to the captioned telephone CA at the TRS facility. The Commission concluded that some TRS mandatory minimum standards did not apply to the provision of this service and waived other requirements for limited periods of time. On June 28, 2006, captioned telephone providers filed their annual report addressing the three outstanding waivers applicable to this service—CA competence in interpreting typewritten ASL, use of oral-to-type tests, and handling sequential calls (as applied to outbound calls). Ultratec, Inc., Sprint-Nextel, Hamilton Relay, Inc., *Third Annual Report on Captioned Telephone Service and Petition to Make Captioned Telephone Waivers Permanent,* CG Docket No. 03-123 (June 28, 2006) ( *Captioned Telephone Waiver Petition* ). The rule requiring CAs to be competent in interpreting typewritten ASL is intended to ensure that CAs can accurately understand and interpret the message the TRS user has typed when the user uses the syntax, grammar, and language unique to ASL. The oral-to-type test is intended to ensure that a CA can meet the 60 words per minute typing speed required by the rules. The rule requiring the handling of sequential calls is intended to ensure that a CA does not disconnect the TRS user after a call if the user desires to make additional calls. *See* 47 CFR 64.604(a)(1) and

(3)of the Commission's rules. The report noted that these waivers expire August 1, 2006, and included a request that the Commission either make these waivers permanent for captioned telephone service provided with the aid of voice recognition technology, or clarify that the “standards for which these waivers have been granted do not apply to captioned telephone relay services that use voice recognition technologies to convey messages.” *Captioned Telephone Waiver Petition* at 2. Discussion The Commission clarifies that these three requirements do not apply to captioned telephone services where the user does not type the outbound message, the CA generates text for the user principally using voice recognition technologies (instead of typing), and the communications assistant does not play a role in setting up a call. First, the Commission recognizes that if a captioned telephone user does not type in making a call, there is never the opportunity for the CA to have to interpret typewritten ASL. Similarly, the Commission recognizes that oral-to-type tests are not relevant to captioned telephone service involving voice recognition technologies, and therefore that oral-to- *text* tests may appropriately be used as a substitute to assess the proficiency of captioned telephone CAs. Finally, the Commission recognizes that if the captioned telephone user initiates a call by directly dialing the called party, so that the CA does not play a role in setting up the call, the sequential call rule has no application. To the extent these mandatory minimum standards do not apply to the provision of captioned telephone service, as clarified herein, providers need not file annual reports addressing these requirements. Congressional Review Act The Commission will not send a copy of the Order pursuant to the Congressional Review Act, *see* 5 U.S.C. 801(a)(1)(A), because the adopted rules are rules of particular applicability. Ordering Clauses Accordingly, *It is ordered* that, 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, the Order is hereby *adopted.* Federal Communications Commission. Monica S. Desai, Chief, Consumer and Governmental Affairs Bureau. [FR Doc. E6-13987 Filed 8-22-06; 8:45 am] BILLING CODE 6712-01-P FEDERAL COMMUNICATIONS COMMISSION 47 CFR Part 73 [DA 06-1583; MB Docket No. 05-45; RM-11147; RM-11246] Radio Broadcasting Service; Atwood, Kansas; Burlington and Flagler, Colorado; McCook and Ogallala, Nebraska AGENCY: Federal Communications Commission. ACTION: Final rule. SUMMARY: The Audio Division, at the request of KNAB, Inc., allots Channel 292C0 at Atwood, Kansas, as the community's first local aural transmission service (RM-11246). To accommodate the allotment, we also substitute Channel 294C1 for Channel 293C1 at Ogallala, Nebraska, and the modify Station KMCX-FM's license accordingly. We deny the petition filed by Border Alliance of Broadcasters proposing the allotment of Channel 280C0 at Atwood, Kansas, and the proposed changes required to accommodate the proposal (RM-11147). Channel 292C0 can be allotted to Atwood in compliance with the Commission's minimum distance separation requirement with a site restriction of 14.8 kilometers (9.2 miles) southeast to avoid a short-spacing to the licensed site of Station KQNK-FM, Channel 294A, Norton, Kansas. The reference coordinates for Channel 292C0 at Atwood are 39-43-51 North Latitude and 100-53-58 West Longitude. Additionally, Channel 294C1 can be substituted at Ogallala at Station KMCX-FM's currently authorized site. The reference coordinates for Channel 294C1 at Ogallala are 41-08-02 North Latitude and 101-41-42 West Longitude. DATES: Effective September 18, 2006. A filing window for Channel 292C0 at Atwood, Kansas, will not be opened at this time. Instead, the issue of opening this allotment for auction will be addressed by the Commission in a subsequent order. Because the allotment requires the substitution of Channel 294C1 for Channel 293C1 at Ogallala, Nebraska, any requisite conditions for the channel change will be stipulated in said order. ADDRESSES: Secretary, Federal Communications Commission, 445 Twelfth Street, SW., Washington, DC 20554. FOR FURTHER INFORMATION CONTACT: Sharon P. McDonald, Media Bureau,

(202)418-2180. SUPPLEMENTARY INFORMATION: This is a synopsis of the Commission's *Report and Order* , MB Docket No. 05-45, adopted August 2, 2006, and released August 4, 2006. The full text of this Commission decision is available for inspection and copying during regular business hours at the FCC's Reference Information Center, Portals II, 445 12th Street, SW, Room CY-A257, 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 20554, telephone 1-800-378-3160 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. 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 Kansas, is amended by adding Atwood, Channel 292C0. 3. Section 73.202(b), the Table of FM Allotments under Nebraska, is amended by removing Channel 293C1 and by adding Channel 294C1 at Ogallala. Federal Communications Commission. John A. Karousos, Assistant Chief, Audio Division, Media Bureau. [FR Doc. E6-13748 Filed 8-22-06; 8:45 am] BILLING CODE 6712-01-P DEPARTMENT OF TRANSPORTATION Office of the Secretary 49 CFR Part 40 [Docket OST-2006-24112] RIN 2105-AD57 Procedures for Transportation Workplace Drug and Alcohol Testing Programs: Revision of Substance Abuse Professional Credential Requirement; Technical Amendments AGENCY: Office of the Secretary, DOT. ACTION: Final rule. SUMMARY: The Department of Transportation is adding state-licensed or certified marriage and family therapists to the list of credentialed professionals eligible to serve as substance abuse professionals under subpart O of 49 CFR part 40. The Department is also making a series of technical amendments to its drug and alcohol testing procedural rule. The purpose of the technical amendments is to clarify certain provisions of the rule as well as address omissions and typographical errors which have been called to our attention since the publication of the final rule in December 2000. DATES: This rule is effective September 22, 2006. FOR FURTHER INFORMATION CONTACT: Bohdan Baczara, Office of Drug and Alcohol Policy and Compliance, 400 Seventh Street, SW., Washington, DC 20590; 202-366-3784 (voice), 202-366-3897 (fax), or *bohdan.baczara@dot.gov* (e-mail). SUPPLEMENTARY INFORMATION: Background and Purpose The Omnibus Transportation Employee Testing Act of 1991 required that an opportunity for treatment be made available to employees required by the regulations to undergo workplace drug and alcohol testing ( *i.e.,* covered employees). To implement this requirement in its alcohol and drug testing rules issued in February 1994, the Department of Transportation

(DOT)established the role of the “substance abuse professional” (SAP). The Department's regulation, 49 CFR part 40, requires an employer to provide a covered employee, who engages in conduct prohibited by DOT agency drug and alcohol regulations, a listing of qualified SAPs. In addition, the regulation requires the employee to be evaluated by a SAP and to demonstrate successful compliance with the SAP's evaluation recommendations for education and/or treatment prior to being considered for returning to any DOT safety-sensitive position. The Department considers the SAP to be the “Gatekeeper” of safety for the return-to-duty process. The SAP represents the major decision point an employer may have in choosing whether to return an employee to safety-sensitive duties following a DOT regulation violation. The SAP is responsible for several duties important to the evaluation, referral and treatment of employees who have engaged in prohibited drug and alcohol related conduct. The job a SAP accomplishes provides vital help to the employee, the employer and to the traveling public. To be permitted to act as a SAP in the DOT drug and alcohol testing program, a SAP must meet basic knowledge, training and examination and continuing education requirements. In addition, a person must have one of the following credentials:

(1)Licensed physician;

(2)Licensed or certified social worker;

(3)Licensed or certified psychologist;

(4)Licensed or certified employee assistance professional; or

(5)Drug and alcohol counselor certified by the National Association of Drug Abuse Counselors Certification Commission (NAADAC); or by the International Certification Reciprocity Consortium/Alcohol and Other Drug Abuse (ICRC); or by the National Board for Certified Counselors, Inc. and Affiliates/Master Addiction Counselor (NBCC). On August 10, 2005, President Bush signed the Safe, Accountable, Flexible, and Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU) [PL 109-59]. That law required, among many things, that the Secretary conduct a rulemaking that would make state-certified or licensed marriage and family therapists

(MFTs)eligible to become SAPs. The Department has been in discussions with the American Association of Marriage and Family Therapists (AAMFT) and notes the significant strides MFTs have made in obtaining state licensure or certification recognition, as well as, their significant education requirements. Based on the SAFETEA-LU Legislation and discussions with the AAMFT, the Department issued a notice of proposed rulemaking

(NPRM)on March 10, 2006 [71 FR 12331], asking for comments and suggestions for adding state-licensed and certified MFTs as a credential eligible for becoming a SAP. Over the years, the Department met several times with the AAMFT but had not considered MFTs to be an acceptable professional credential for SAPs for one reason—MFTs were not licensed or certified to practice in all 50 States. Currently, except Montana and West Virginia, all states provide licensure or certification for MFTs. Because of the SAFETEA-LU legislation, the Department proposed in the NPRM not to wait until MFTs are licensed or certified to practice in all 50 states as we have for other professions ( *i.e.,* physicians, social workers, and psychologists). Therefore, MFTs in states that provide them licensure or certification will become eligible. As soon as Montana and West Virginia offer licensure or certification, MFTs in those states will also become eligible to become SAPs. There were 14 commentors to the NPRM, which included individuals, labor organizations, third-party administrators and associations. This final rule responds to their comments. In addition, this rule makes technical amendments to clarify a certain provision of the rule and addresses typographical errors and omissions which have been called to our attention since the publication of the Department's final rule in 2000. There was no NPRM with respect to these amendments. Discussion of Significant Comments to the Docket *Comment:* Five commenters supported the Department's decision to include being a state-licensed or certified MFT as an acceptable credential to become a SAP, citing the general need for more SAPs. One commenter, however, found it unfair that the licensed or certified MFTs were not required to meet the licensing requirements for all 50 States before being included in the list of acceptable credentials. This commenter suggested that the DOT maintain a consistent standard for all licensing boards and not take shortcuts. *DOT Response:* Because of the legislative requirement to conduct this rulemaking, the expectation that MFTs will meet the licensing requirements for all 50 States in the near future, and the value of including another profession eligible to become SAPs, the Department believes there is no need to delay including state-licensed or certified MFTs to the list of credentials available to become SAPs. With the appropriate knowledge, training and qualifications, these therapists have the potential—as do all credentialed groups—to increase the number of qualified SAPs available to the transportation industry. *Comment:* Five commenters were opposed to adding MFTs to the list of eligible credentials to act as SAPs because they believed MFTs did not have the necessary qualifications to diagnose substance-related disorders. Two commenters agreed with the NPRM but only if MFTs met a requirement for education or expertise in substance abuse issues—competencies which the commenters believe MFTs lacked. *DOT Response:* Current regulations require those with the appropriate credentials to be SAPs to have knowledge about and clinical experience in the diagnosis and treatment of alcohol and controlled substances-related disorders before they can become qualified to act as SAPs. Degrees and certificates alone do not confer this knowledge. This is why the Department had made it a requirement in its regulation, specifically 40.281(b)(1), that an individual *must* meet this requirement regardless of his or her credential before becoming a SAP. This has been a longstanding requirement of part 40 [FR 61 37222, July 17, 1996], and an essential component of the SAP qualifications that should not be taken lightly. Discussion of Technical Amendments Nomenclature Change To reflect the February 2005 reorganization of the Research and Special Programs Administration (RSPA), the DOT Agency name will be changed from RSPA to Pipeline and Hazardous Materials Safety Administration (PHMSA). The change will be made throughout part 40, including the MIS Data Collection Form and its accompanying instruction sheet. Section 40.23 What actions do employers take after receiving verified results? The Department is amending paragraph

(c)of this section to correct the typographical error of “.39” printed in the final rule of December 2000 to read “.039.” Section 40.73 How is the collection process completed? While completing the CCF, the collector is to complete Step 4 and not Step 5 as indicated in paragraph (a)(2) of this section. The change will correct this typographical error. Section 40.83 How do laboratories process incoming specimens? Paragraphs (b)(2) and

(4)of this section, which deal with re-designating the primary and split specimens, should refer the reader to paragraph

(h)of this section and not (g). The changes will correct these typographical errors. Section 40.191 What is a refusal to take a DOT drug test, and what are the consequences? When a MRO is looking to establish whether there is clinical evidence of unauthorized use of opiates, section 40.139 states that the MRO may require a face-to-face examination of the employee as part of the verification process for opiates. In a pre-employment testing situation, if the employee fails to undergo the examination and there was a contingent offer of employment, the employee is deemed to have refused to test (see 40.191(a)(7)). If no contingent offer of employment was made and the employee refused to undergo the examination, the MRO cannot verify the test as a refusal. Therefore under the current regulation, in a pre-employment situation where a MRO cannot verify the test as a positive or a refusal, the MRO is left with one choice—to call it negative. For a MRO to verify an opiate test result as negative because the MRO was unable to conduct a medical examination is inappropriate. Safety goals are not served nor does the finding factually represent the events. Therefore, in this limited situation, the Department is adding language permitting the MRO to report the test as “cancelled.” Section 40.267 What problems always cause an alcohol test to be cancelled? Paragraph (c)(5) of this section should reference 40.233(a)(1) and (c)(3) and not 40.233(a)(1) and (d). There is no paragraph

(d)in the section to reference. Correcting the reference will keep the intent of the section consistent with the 1999 NPRM [FR 69076]. The change will correct this typographical error. Section 40.269 What problems cause an alcohol test to be cancelled unless they are corrected? Paragraph

(b)of this section should reference 40.255(a)(3) and not 40.255(a)(2). The change will correct this typographical error. Section 40.281 Who is qualified to act as a SAP? When the Department published its rule in 2000, the word “alcohol” was inadvertently omitted when identifying that the SAP is permitted to act in the Department's drug and alcohol testing program. The change will correct this omission. Regulatory Analyses and Notices The statutory authority for this rule derives from the Omnibus Transportation Employee Testing Act of 1991 (49 U.S.C. 102, 301, 322, 5331, 20140, 31306, and 45101 *et seq.* ) and the Department of Transportation Act (49 U.S.C. 322). This rule is not significant for purposes of Executive Order 12866 or the DOT's regulatory policies and procedures. It makes minor modifications to our procedures to increase the number of qualified SAPs available to employees and employers, and corrects or clarifies existing regulatory provisions. Except for providing some additional potential sources of income to some MFTs, it should not have an economic impact, let alone a significant one, on anyone. Consequently, under the Regulatory Flexibility Act, the Department certifies that this rule will not have a significant economic impact on a substantial number of small entities. This rule imposes no information collection requirements for which Paperwork Reduction Act approval is needed. It has no Federalism impact that would warrant a Federalism assessment. With respect to the technical amendments that were not part of the NPRM, the Department has determined that under Section 553 of the Administrative Procedure Act that prior notice and opportunity for public comment would be unnecessary, impracticable or contrary to the public interest. The amendments do not make substantive changes to part 40, and the Department does not anticipate the receipt of meaningful comments on them. The amendments make largely ministerial changes such as a change of address for an agency office, the change of the name of an agency and corrections of citations. List of Subjects in 49 CFR Part 40 Administrative practice and procedures, Alcohol abuse, Alcohol testing, Drug abuse, Drug testing, Laboratories, Reporting and recordkeeping requirements, Safety, Transportation. 49 CFR subtitle A Authority and Issuance Dated: August 14, 2006. Maria Cino, Acting Secretary of Transportation. For reasons discussed in the preamble, the Department of Transportation amends part 40 of Title 49, Code of Federal Regulations, as follows: PART 40—PROCEDURES FOR TRANSPORTATION WORKPLACE DRUG AND ALCOHOL TESTING PROGRAMS 1. The authority citation for 49 CFR part 40 is revised to read as follows: Authority: 49 U.S.C. 102, 301, 322, 5331, 20140, 31306, and 45101 *et seq.* ; 49 U.S.C. 322. 2. PART 40—[Nomenclature change] In part 40, revise all references to “RSPA” to read “PHMSA”. § 40.3 [Amended] 3. Amend § 40.3 as follows: a. In the definition of “Laboratory”, remove the words “5600 Fishers Lane, Rockwall II Building, Suite 815, Rockville, MD 20857”, and add, in their place, the words “1 Choke Cherry Road, Room 2-1035, Rockville MD 20587”. b. In the definition of “DOT, The Department, DOT agency”, remove the words “Research and Special Projects Administration (RSPA)” and add, in their place, the words “Pipeline and Hazardous Material Safety Administration (PHMSA)”. § 40.23 [Amended] 4. § 40.23

(c)is amended by revising “0.39” to read “0.039”. § 40.73 [Amended] 5. § 40.73 (a)(2) is amended by revising “Step 5” to read “Step 4”. § 40.83 [Amended] 6. § 40.83 (c)(2) and

(4)are amended by revising “(g)” to read “(h)”. 7. § 40.191 is amended by revising paragraph (a)(7) to read as follows: § 40.191 What is a refusal to take a DOT drug test, and what are the consequences?

(a)* * *

(7)Fail to undergo a medical examination or evaluation, as directed by the MRO as part of the verification process, or as directed by the DER under § 40.193(d). In the case of a pre-employment drug test, the employee is deemed to have refused to test on this basis only if the pre-employment test is conducted following a contingent offer of employment. If there was no contingent offer of employment, the MRO will cancel the test; or § 40.267 [Amended] 8. § 40.267 (c)(5) is amended by revising the words “(see § 40.233(a)(1) and (d))” to read “(see § 40.233(a)(1) and (c)(3))”. § 40.269 [Amended] 9. § 40.269

(b)is amended by revising the words “(see § 40.255(a)(2))” to read “(see § 40.255(a)(3))”. 10. § 40.281 is amended by re-designating paragraph

(5)as

(a)(6), by removing the word “or” at the end of

(4)and by adding a new

(5)to read as follows: § 40.281 Who is qualified to act as a SAP?

(a)* * *

(5)You are a state-licensed or certified marriage and family therapist; or 11. § 40.283

(a)is revised to read as follows: § 40.283 How does a certification organization obtain recognition for its members as SAPs?

(a)If you represent a certification organization that wants DOT to authorize its certified drug and alcohol counselors to be added to § 40.281(a)(6), you may submit a written petition to DOT requesting a review of your petition for inclusion. [FR Doc. E6-13956 Filed 8-22-06; 8:45 am] BILLING CODE 4910-62-P 71 163 Wednesday, August 23, 2006 Proposed Rules DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2006-25670; Directorate Identifier 2006-NM-027-AD] RIN 2120-AA64 Airworthiness Directives; Airbus Model A300 B2 and B4 Series Airplanes AGENCY: Federal Aviation Administration (FAA), Department of Transportation (DOT). ACTION: Notice of proposed rulemaking (NPRM). SUMMARY: The FAA proposes to adopt a new airworthiness directive

(AD)for certain Airbus Model A300 B2 and B4 series airplanes. This proposed AD would require revising the airplane flight manual

(AFM)to include procedures for resetting the trim and pitch trim levers after each landing, determining which servomotor moves the pitch trim control wheel, and doing applicable other specified actions. This proposed AD also provides for optional terminating actions for those requirements. This proposed AD results from a report of a sudden nose-up movement after disengagement of the autopilot in cruise. We are proposing this AD to ensure that the flightcrew is aware of the procedures for resetting the trim and pitch trim levers after each landing and to prevent failure of the servomotors of the pitch trim systems during flight. Failure of the servomotors of the pitch trim systems could result in uncommanded nose-up movement of the control surface of the pitch trim systems after disengagement of the autopilot in cruise. DATES: We must receive comments on this proposed AD by September 22, 2006. ADDRESSES: Use one of the following addresses to submit comments on this proposed AD. • *DOT Docket Web site:* Go to *http://dms.dot.gov* and follow the instructions for sending your comments electronically. • *Government-wide rulemaking Web site:* Go to *http://www.regulations.gov* and follow the instructions for sending your comments electronically. • *Mail:* Docket Management Facility, U.S. Department of Transportation, 400 Seventh Street, SW., Nassif Building, room PL-401, Washington, DC 20590. • *Fax:*

(202)493-2251. • *Hand Delivery:* Room PL-401 on the plaza level of the Nassif Building, 400 Seventh Street, SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. Contact Airbus, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France, for service information identified in this proposed AD. FOR FURTHER INFORMATION CONTACT: Thomas Stafford, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue, SW., Renton, Washington 98055-4056; telephone

(425)227-1622; fax

(425)227-1149. SUPPLEMENTARY INFORMATION: Comments Invited We invite you to submit any relevant written data, views, or arguments regarding this proposed AD. Send your comments to an address listed in the ADDRESSES section. Include the docket number “FAA-2006-25670; Directorate Identifier 2006-NM-027-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of the proposed AD. We will consider all comments received by the closing date and may amend the proposed AD in light of those comments. We will post all comments we receive, without change, to *http://dms.dot.gov,* including any personal information you provide. We will also post a report summarizing each substantive verbal contact with FAA personnel concerning this proposed AD. Using the search function of that Web site, anyone can find and read the comments in any of our dockets, including the name of the individual who sent the comment (or signed the comment on behalf of an association, business, labor union, etc.). You may review the DOT's complete Privacy Act Statement in the **Federal Register** published on April 11, 2000 (65 FR 19477-78), or you may visit *http://dms.dot.gov.* Examining the Docket You may examine the AD docket on the Internet at *http://dms.dot.gov,* or in person at the Docket Management Facility office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The Docket Management Facility office (telephone

(800)647-5227) is located on the plaza level of the Nassif Building at the DOT street address stated in the ADDRESSES section. Comments will be available in the AD docket shortly after the Docket Management System receives them. Discussion The Direction Générale de l'Aviation Civile (DGAC), which is the airworthiness authority for France, notified us that an unsafe condition may exist on certain Airbus Model A300 B2 and B4 series airplanes. The DGAC advises that a sudden nose-up movement after disengagement of the autopilot in cruise occurred on a Model A300 airplane. At the time of the incident, the first pitch trim system (pitch trim 1) was inoperative before the flight and the second pitch trim system (pitch trim 2) had tripped. During the resulting investigation, the manufacturer identified a failure mode of the servomotors of the pitch trim systems as the cause of the incident. This condition, if not corrected, could result in uncommanded nose-up movement of the control surface of the pitch trim systems after disengagement of the autopilot in cruise. Relevant Service Information Airbus has issued Temporary Revision

(TR)4.03.00/04, Issue 02, dated November 18, 2003, to the A300 Airplane Flight Manual (AFM). The TR describes a procedure for the flightcrew to follow after each landing of the airplane. The procedure involves resetting the trim and pitch trim. This procedure is to be inserted into the Normal Procedures section of the AFM. Airbus also has issued TR No. 22-001, dated April 11, 2003, of Chapter 22-23-00 of Airbus A300 Fault Isolation Manual. The TR describes procedures for determining which servomotor moves the pitch trim control wheel and doing applicable other specified actions. The applicable other specified actions involve replacing one or both servomotors of the pitch trim systems with new servomotors or dispatching the airplane with both servomotors deactivated in accordance with the Master Minimum Equipment List (MMEL). In addition, Airbus issued Service Bulletin A300-22-0119, dated May 13, 2005. The service bulletin describes optional procedures for replacing the pitch trim servomotors in the attachment area of the horizontal and vertical stabilizers with new servomotors. The service bulletin refers to Thales Service Bulletin V1AM-22-005, Revision 01, dated July 27, 2005, as an additional source of service information for doing the replacement. Further, Airbus issued Service Bulletin A300-22-0120, dated May 13, 2005. The service bulletin describes procedures for repetitive preventative maintenance tasks of any pitch trim servomotor replaced in accordance with Service Bulletin A300-22-0119. The service bulletin refers to Thales Service Bulletin V1AM-22-006, Revision 01, dated July 26, 2005, as an additional source of service information for doing the preventative maintenance task. Accomplishing the actions specified in the service information is intended to adequately address the unsafe condition. The DGAC mandated Airbus TR 4.03.00/04, Airbus TR No. 22-001, and Airbus Service Bulletin A300-22-0120 for any pitch trim servomotor replaced in accordance with Airbus Service Bulletin A300-22-0119. In addition, the DGAC mandated incorporation of Airbus TR No. 1.22/01Z, Revision 2, into the MMEL. The DGAC also issued French airworthiness directives F-2003-291 R1, dated July 6, 2005, and F-2005-109, dated July 6, 2005, to ensure the continued airworthiness of these airplanes in France. FAA's Determination and Requirements of the Proposed AD These airplane models are manufactured in France and are type certificated for operation in the United States under the provisions of section 21.29 of the Federal Aviation Regulations (14 CFR 21.29) and the applicable bilateral airworthiness agreement. Pursuant to this bilateral airworthiness agreement, the DGAC has kept the FAA informed of the situation described above. We have examined the DGAC's findings, evaluated all pertinent information, and determined that we need to issue an AD for airplanes of this type design that are certificated for operation in the United States. Therefore, we are proposing this AD, which would require accomplishing the actions specified in Airbus TR 4.03.00/04, Airbus TR No. 22-001, and Airbus Service Bulletin A300-22-0120 for any pitch trim servomotor replaced in accordance with Airbus Service Bulletin A300-22-0119, as described previously. Clarification Between the Proposed AD and French Airworthiness Directive F-2003-291 R1 Although the French airworthiness directive F-2003-291 R1 mandates incorporation of Airbus TR No. 1.22/01Z, Revision 2, into the MMEL, this proposed AD does not include that requirement. The procedures specified in Airbus TR No. 1.22/01Z have already been incorporated into the MMEL for the U.S. fleet. Costs of Compliance The following table provides the estimated costs for U.S. operators to comply with this proposed AD. The average labor rate per hour is $80. Estimated Costs Action Work hours Parts Cost per airplane Number of U.S.-registered airplanes Fleet cost AFM revision 1 None $80 23 $1,840. Determination if pitch trim control wheel moves 1 None $80 23 $1,840. Optional replacement 3 $264 $504 23 $11,592. Optional repetitive preventative maintenance tasks 3 None $240, per task cycle 23 $5,520, per task cycle. Authority for This Rulemaking Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority. We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action. Regulatory Findings We have determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect 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. For the reasons discussed above, I certify that the proposed regulation: 1. Is not a “significant regulatory action” under Executive Order 12866; 2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and 3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket. See the ADDRESSES section for a location to examine the regulatory evaluation. List of Subjects in 14 CFR Part 39 Air transportation, Aircraft, Aviation safety, Safety. The Proposed Amendment Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows: PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority: 49 U.S.C. 106(g), 40113, 44701. § 39.13 [Amended] 2. The Federal Aviation Administration

(FAA)amends § 39.13 by adding the following new airworthiness directive (AD): **Airbus:** Docket No. FAA-2006-25670; Directorate Identifier 2006-NM-027-AD. Comments Due Date

(a)The FAA must receive comments on this AD action by September 22, 2006. Affected ADs

(b)None. Applicability

(c)This AD applies to all Airbus Model A300 airplanes; certificated in any category; except the following airplanes:

(1)Model A300 B4-220, A300 B4-203, and A300 B2-203 airplanes in a forward facing crew cockpit certified configuration;

(2)Model A300 B4-601, B4-603, B4-620, and B4-622 airplanes;

(3)Model A300 B4-605R and B4-622R airplanes;

(4)Model A300 F4-605R and F4-622R airplanes; and

(5)Airbus Model A300 C4-605R Variant F airplanes. Unsafe Condition

(d)This AD results from a report of a sudden nose-up movement after disengagement of the autopilot in cruise. We are issuing this AD to ensure that the flightcrew is aware of the procedures for resetting the trim and pitch trim levers after each landing and to prevent failure of the servomotors of the pitch trim systems during flight. Failure of the servomotors of the pitch trim systems could result in uncommanded nose up movement of the control surface of the pitch trim systems after disengagement of the autopilot in cruise. Compliance

(e)You are responsible for having the actions required by this AD performed within the compliance times specified, unless the actions have already been done. Revision of Airplane Flight Manual

(f)Within 14 days after the effective date of this AD, revise the Normal Procedures section of the Airbus A300 AFM to include the information in Airbus A300 Temporary Revision

(TR)4.03.00/04, Issue 02, dated November 18, 2003, as specified in the TR. Note 1: This may be done by inserting a copy of TR 4.03.00/04, Issue 02, in the AFM. When the TR has been included in the general revisions of the AFM, the general revisions may be inserted in the AFM, provided the relevant information in the general revision is identical to that in the TR. Determination if Pitch Trim Control Wheel Moves

(g)Following accomplishment of the AFM revision required by paragraph

(f)of this AD: After each landing and before shutting down the engines, do the AFM procedures specified in Airbus A300 TR 4.03.00/04, Issue 02, dated November 18, 2003. Determination if Servomotor Moves

(h)Before further flight after any movement reported in accordance with paragraph

(g)of this AD, determine which servomotor moves the pitch trim control wheel, and do applicable other specified actions in accordance with Airbus TR No. 22-001, dated April 11, 2003, of Chapter 22-23-00 of Airbus A300 Fault Isolation Manual. Note 2: Airbus TR No. 22-001 contains a typographical error. The TR incorrectly refers to “MM 22-23-39” as the appropriate source of service information for replacing the pitch trim actuator; the correct reference is “MM 22-23-29.” Optional Replacement of the Pitch Trim Servomotors

(i)Replace the pitch trim servomotors in the attachment area of the horizontal and vertical stabilizers with new servomotors, in accordance with the Accomplishment Instructions of Airbus Service Bulletin A300-22-0119, dated May 13, 2005. Note 3: Airbus Service Bulletin A300-22-0119, dated May 13, 2005, refers to Thales Service Bulletin V1AM-22-005, Revision 01, dated July 27, 2005, as an additional source of service information for doing the replacement. Repetitive Preventative Maintenance Tasks

(j)Within 12,000 flight hours after replacing one or both servomotors in accordance with paragraph

(h)or

(i)of this AD, or within 6 months after the effective date of this AD, whichever occurs later, do the preventative maintenance task of the pitch trim servomotor(s), in accordance with the Accomplishment Instructions of Airbus Service Bulletin A300-22-0120, dated May 13, 2005. Repeat the preventative maintenance task thereafter at intervals not to exceed 12,000 flight hours. Note 4: Airbus Service Bulletin A300-22-0120, dated May 13, 2005, refers to Thales Service Bulletin V1AM-22-006, Revision 01, dated July 26, 2005, as an additional source of service information for doing the preventative maintenance task. Removal of AFM Revision

(k)After accomplishing the actions specified in paragraph

(i)and the initial task in paragraph

(j)of this AD, the AFM revision required by paragraph

(f)of this AD may be removed, and the requirements of paragraphs

(g)and

(h)of this AD are no longer required. No Reporting

(l)Although Airbus Service Bulletin A300-22-0120 specifies to submit certain information to the manufacturer, this AD does not include that a requirement. Alternative Methods of Compliance (AMOCs) (m)(1) The Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA, has the authority to approve AMOCs for this AD, if requested in accordance with the procedures found in 14 CFR 39.19.

(2)Before using any AMOC approved in accordance with § 39.19 on any airplane to which the AMOC applies, notify the appropriate principal inspector in the FAA Flight Standards Certificate Holding District Office. Related Information

(n)French airworthiness directives F-2003-291 R1, issued July 6, 2005, and F-2005-109, issued July 6, 2005, also addresses the subject of this AD. Issued in Renton, Washington, on August 15, 2006. Kalene C. Yanamura, Acting Manager, Transport Airplane Directorate, Aircraft Certification Service. [FR Doc. E6-13964 Filed 8-22-06; 8:45 am] BILLING CODE 4910-13-P COMMODITY FUTURES TRADING COMMISSION 17 CFR Part 4 RIN 3038-AC35 Advertising by Commodity Pool Operators, Commodity Trading Advisors, and the Principals Thereof AGENCY: Commodity Futures Trading Commission. ACTION: Proposed rules. SUMMARY: The Commodity Futures Trading Commission (Commission or CFTC) is proposing to amend Regulation 4.41, which governs advertising by commodity pool operators (CPOs), commodity trading advisors

(CTAs)and the principals thereof,

(1)To restrict the use of testimonials,

(2)to clarify the required placement of the prescribed simulated or hypothetical performance disclaimer, and

(3)to include within the regulation's coverage advertisement through electronic media (Proposal). This action is in furtherance of the Commission's longstanding position that CPOs, CTAs, and their principals may not advertise in a false, deceptive or misleading manner. DATES: Comments must be received on or before September 22, 2006. ADDRESSES: Comments on the Proposal should be sent to Eileen Donovan, Acting Secretary, Commodity Futures Trading Commission, Three Lafayette Centre, 1155 21st Street, NW., Washington, DC 20581. Comments may be sent by facsimile transmission to

(202)418-5528, or by e-mail to *secretary@cftc.gov.* Reference should be made to “Advertising by Commodity Pool Operators, Commodity Trading Advisors, and the Principals Thereof.” Comments may also be submitted by connecting to the Federal eRulemaking Portal at *http://www.regulations.gov* and following the comment submission instructions. FOR FURTHER INFORMATION CONTACT: Barbara S. Gold, Associate Director, or Peter B. Sanchez, Staff Attorney, Division of Clearing and Intermediary Oversight, Commodity Futures Trading Commission, Three Lafayette Centre, 1155 21st Street, NW., Washington, DC 20581, telephone number:

(202)418-5450 or

(202)418-5237, respectively; facsimile number:

(202)418-5528; and electronic mail: *bgold@cftc.gov* or *psanchez@cftc.gov,* respectively. SUPPLEMENTARY INFORMATION: I. Background Part 4 of the Commission's regulations governs the operations and activities of CPOs and CTAs. 1 In particular, Regulation 4.41 pertains to advertising by CPOs, CTAs, and the principals 2 thereof, an issue first addressed by the Commission over 25 years ago. The Commission originally proposed that CPOs, CTAs, and their principals could not advertise their actual past performance results in a format other than that which the CPO or CTA was required to use in its Disclosure Document, 3 and that the presentation of simulated or hypothetical performance of a CPO, CTA, or the principals thereof would be prohibited. 4 In response to the comments received and its further deliberations on these proposals, the Commission adopted less restrictive advertising regulations. 5 1 17 CFR Part 4 (2006). The Commodity Exchange Act

(Act)and the Commission's regulations issued thereunder may be accessed through the Commission's Web site, at *http://www.cftc.gov/cftc.cftclawreg.htm.* 2 The definition of the term ``principal'' is set forth in Regulation 4.10(e)(1), which cross-references the definition of the term in Regulation 3.1(a). An example of a principal of a CPO organized as a corporation would be the corporation's chief executive officer. 3 Regulations 4.21-4.26 and 4.31-4.26 respectively concern the Disclosure Document that registered CPOs and CTAs must prepare, deliver, and file. 4 45 FR 51600 (Aug. 4, 1980). 5 46 FR 26004 (May 8, 1981). With respect to the presentation of actual past performance, the Commission explained that it had adopted in Regulation 4.41(a) “a rule that leaves to the discretion of the [CPO, CTA, or principal] advertising performance results—whether actual, simulated or hypothetical—the format of that presentation, so long as that format is not false, misleading or deceptive.” 6 As for the presentation of simulated or hypothetical performance results, the Commission explained that it had adopted in Regulation 4.41(b) “a rule that allows the presentation of those results, provided that the presentation *is accompanied by* the statement prescribed in the rule (emphasis supplied),” whose purpose was “to alert prospective customers to the limitations inherent in simulated and hypothetical past performance results.” 7 The Commission also noted the scope of new Regulation 4.41—that it applied to both oral and written communications and regardless of whether a CPO or a CTA was exempt from registration under the Act. 8 6 While acknowledging that it was not possible to identify every advertisement that was prohibited by new Regulation 4.41, the Commission nonetheless gave notice in the **Federal Register** release announcing the adoption of the rule that it would consider the following, non-exclusive list of advertisements, to be prohibited:

(1)References only to successful trades, if during the same time period, trades which were unsuccessful were also recommended or executed;

(2)references to the results during a specific time period, if the results claimed were not fairly representative of results achieved for comparable periods;

(3)suggestions, assurances or claims of profit potential that do not also fairly present the possibility of loss;

(4)statements of opinions or predictions which are not clearly labeled as such or which have no reasonable basis in fact; and

(5)failure to disclose whether, and to what extent, fees, commissions and other expenses are reflected in the past performance results. *Id.* at 26012. 7 *Id.* 8 Section 4m(1) of the Act, 7 U.S.C. 6m(1) (2000), generally requires the registration of CPOs and CTAs. Regulation 4.13 provides an exemption from CPO registration for certain persons, and Sections 4m(1) and 4m(3) and Regulation 4.14 provide an exemption from CTA registration for certain other persons. Based on its experience with the operation of Regulation 4.41 over the course of the past 25 years, the Commission today is proposing certain amendments as described below. II. The Proposal A. Presentation of Actual Past Performance: Proposed Addition of Regulation 4.41(a)(3) The Commission is proposing to add a new paragraph (a)(3) to Regulation 4.41, which would address the use of testimonials by a CPO, CTA, or a principal thereof. Proposed Regulation 4.41(a)(3) would require advertisements that refer to a testimonial to prominently disclose that the testimonial may not be representative of the experience of other clients; that the testimonial is no guarantee of future performance or success; and, if more than a nominal sum is paid, the fact that it is a paid testimonial. 9 The Commission believes that advertisements that do not contain this information may provide potential CPO and CTA customers with a misleading assessment about the quality of services being offered or the motivation of the person providing the testimonial—and, thus, violate the Commission's intent that these advertisements not be “false, misleading or deceptive.” 9 The Commission has modeled this proposal upon NASD Rule 2210(d)(2), which sets similar limits on the use of testimonials in advertisements and other marketing materials applicable to NASD members, as follows:

(2)Standards Applicable to Advertisements and Sales Literature

(A)Advertisements or sales literature providing any testimonial concerning the investment advice or investment performance of a member or its products must prominently disclose the following:

(i)The fact that the testimonial may not be representative of the experience of other clients.

(ii)The fact that the testimonial is no guarantee of future performance or success.

(iii)If more than a nominal sum is paid, the fact that it is a paid testimonial. The potential of testimonials to mislead customers has been recognized by other Federal regulatory agencies. The Securities and Exchange Commission

(SEC)has promulgated a rule that declares any use of testimonials in advertising by investment advisers to be “a fraudulent, deceptive or manipulative act, practice or course of business within the meaning of the [Investment Advisers] Act [of 1940] (15 U.S.C. 80b-6(4))”. 17 CFR 275.206(4)-1(a)(1). In its release promulgating the rule, the SEC found that “such advertisements are misleading; by their very nature they emphasize the comments and activities favorable to the investment adviser and ignore those which are unfavorable.” 26 FR 10548, 10549 (November 9, 1961). Testimonials also are subject to the Federal Trade Commission's

(FTC)*Guides Concerning Use of Endorsements and Testimonials in Advertising* , which are not limited to a specific industry. 16 CFR 255, *http://www.ftc.gov/bcp/guides.endorse.htm.* The FTC Guides provide, for example, that: An advertisement employing an endorsement reflecting the experience of an individual or a group of consumers on a central or key attribute of the product or service will be interpreted as representing that the endorser's experience is representative of what consumers will generally achieve with the advertised product in actual, albeit variable, conditions of use. Therefore, unless the advertiser possesses and relies upon adequate substantiation for this representation, the advertisement should either clearly and conspicuously disclose what the generally expected performance would be in the depicted circumstances or clearly and conspicuously disclose the limited applicability of the endorser's experience to what consumers may generally expect to achieve. *See* 16 CFR 255.2(a). The FTC *Guides* are an administrative interpretation of section 5 of the Federal Trade Commission Act, 15 U.S.C. 45(a), which prohibits “unfair or deceptive acts or practices in or affecting commerce.” *See Porter & Dietsch, Inc.* v. *Federal Trade Comm'n* , 605 F.2d 294, 303 (7th Cir. 1979) (sustaining FTC's finding that advertisements were deceptive where the typical experiences of consumers did not parallel the experiences reported in testimonials); *Federal Trade Comm'n* v. *Ken Roberts Company* , 276 F.3d 583 (DC Cir. 2001)(FTC's authority to investigate deceptive advertising extended to, among other things, testimonials used by seller of courses in commodities and securities investing and was not clearly preempted by overlapping authority of CFTC or SEC). Standards for establishing unlawful deception under the Federal Trade Commission Act are broadly similar to those for establishing unlawful deception by commodity trading advisors and commodity pool operators under the Commodity Exchange Act. Compare *Federal Trade Comm'n* v. *Tashman* , 318 F.3d 1273, 1275-77 (11th Cir. 2003) (unsupported earnings claims by business opportunity firm were material misleading representations that violated Federal Trade Commission Act) with *CFTC* v. *Heffernan* , 245 F. Supp. 2d 1276, 1290-91, 1294-96 (S.D.Ga. 2003)(unsupported earnings claims by commodity trading advisor were material misleading representations that violated Commodity Exchange Act if they were made with scienter or had an impact on prospective customers). B. Simulated or Hypothetical Performance Presentation: Proposed Amendments to Regulation 4.41(b) Regulation 4.41(b)(1) requires that simulated or hypothetical performance results “be accompanied by” a prescribed statement, 10 and Regulation 4.41(b)(2) requires that this statement be “prominently disclosed” if that performance is presented other than orally. Nonetheless, the Commission has encountered numerous instances where persons were not adequately identifying their trading results as simulated or hypothetical, 11 or were not appropriately locating the disclaimer, 12 and thus were not providing those results as the Commission had contemplated— *i.e.* , in a manner intended “to alert prospective customers to the limitations inherent in simulated and hypothetical past performance results.” The Commission therefore is proposing to amend Regulation 4.41(b)(1) to clarify the meaning of the term “accompanied by,” especially in light of the popularity of electronic means of communication that were not in existence 25 years ago when the Commission adopted Regulation 4.41. 10 This statement may be the text contained in Regulation 4.41(b)(1)(i) or it may be a statement prescribed by a registered futures association pursuant to Section 17(j) of the Act, 7 U.S.C. 21(j). In this regard, the National Futures Association

(NFA)has adopted a Risk Disclosure Statement, the text of which is contained in NFA Compliance Rule 2-29(c) and may be accessed at *http://www.nfa.futures.org/nfaManual/manualCompliance.asp#2-29.* 11 See, *e.g.* , *CFTC* v. *R&W Technical Servs. Ltd.* , 205 F.3d 165 (5th Cir. 2000) (hypothetical trading results presented as real trading results); *CFTC* v. *Skorupskas* , 605 F. Supp. 923, 933 (E.D. Mich. 1985) (performance tables not based on real or actual trading). 12 See, *e.g.* , *CFTC* v. *Vartuli* , 228 F.3d 94 (2d Cir. 2000) (disclaimer appears on a separate page from the hypothetical trading results); *Heffernan* at 1286, 1296-1297, 1299 (disclaimer on a webpage, but not included in the original advertisement containing the hypothetical performance); *In re Martin* , [1999—2000 Transfer Binder] Comm. Fut. L. Rep.

(CCH)¶ 28,239 (CFTC Sept. 6, 2000) (hypothetical performance results on a Web page, but disclaimer on a separate page accessible by hyperlink). Specifically, the Commission is proposing to amend Regulation 4.41(b)(1)(i) by including in the prescribed disclaimer references to “ *these* results” when discussing the simulated or hypothetical performance results being presented. 13 Additionally, the Commission is proposing to amend Regulation 4.41(b)(2) by adding to the existing requirement that the prescribed disclaimer must be prominently disclosed, the requirement that the prescribed disclaimer also must be “ *in immediate proximity* to the simulated or hypothetical performance being presented.” 14 13 The Commission also is proposing a few non-substantive changes to the prescribed disclaimer. The text of Regulation 4.41(b)(1)(i) would thus read as follows: “These results are based on hypothetical or simulated performance results that have certain inherent limitations. Unlike the results shown in an actual performance record, these results do not represent actual trading. Also, because these trades have not actually been executed, these results may have under- or over-compensated for the impact, if any, of certain market factors, such as lack of liquidity. Hypothetical or simulated trading programs in general are also subject to the fact that they are designed with the benefit of hindsight. No representation is being made that any account will or is likely to achieve profits or losses similar to these being shown.” 14 *See, e.g. supra* note 12 for situations in which the required disclaimer was not in immediate proximity to the hypothetical performance. C. The Scope of Regulation 4.41: Proposed Amendment to Regulation 4.41(c)(1) As originally adopted by Congress in 1974, the term “commodity trading advisor” included any person who provided commodity interest trading advice “either directly or through publications or writings.” 15 With the subsequent advent of electronic media and the increasing use of such media by CTAs, in 1982 Congress amended the CTA definition to include any person providing commodity interest trading advice “either directly or through publications, writings *or electronic media* ” (emphasis supplied). 16 In turn, the Commission amended the definition of the term “commodity trading advisor” in Regulation 1.3(bb) to conform to the statutory amendment. 17 CPOs, like CTAs, typically solicit customers based on their performance results. The Commission accordingly is proposing to amend Regulation 4.41(c)(1) in order to clarify that advertisements by “electronic media, or otherwise, including information provided via internet or e-mail” are within the scope of Regulation 4.41. 15 Pub. L. 93-463, 88 Stat. 1389, Sec. 202 (Oct. 23, 1974). 16 Pub. L. 947-444, 96 Stat. 2294, Sec. 201 (Jan. 11, 1983). 17 48 FR 35248 (Aug. 3, 1983). In this regard, the Commission emphasizes that it interprets Regulation 4.41 in its current form as applying to the presentation of past performance results by CPOs, CTAs, and their principals made through electronic media. The Proposal is intended to make this interpretation explicit. The Commission believes that the Proposal is fully consistent with the First Amendment. False, deceptive or misleading commercial speech—even of, for example, those CTAs that provide advice on a non-personalized basis—is not protected by the First Amendment. 18 Moreover, even where commercial speech is only potentially misleading, the government can use disclosure requirements to make sure that the public is not, in fact, misled. 19 18 Indeed, the Commission may constitutionally prohibit the dissemination of commercial speech that is “false, deceptive, or misleading.” *Zauderer* v. *Office of Disciplinary Counsel* , 471 U.S. 626, 638 (1985). 19 *See, e.g. Pearson* v. *Shalala* , 164 F.3d 650 (D.C. Cir. 1999) (disclosure can be required to cure possibility of misleading public that would not just justify prohibition). III. Related Matters A. Regulatory Flexibility Act The Regulatory Flexibility Act

(RFA)20 requires that agencies, in proposing rules, consider the impact of those rules on small businesses. The Commission has previously established certain definitions of “small entities” to be used by the Commission in evaluating the impact of its rules on such entities in accordance with the RFA. 21 20 5 U.S.C. 601 *et seq.* 21 47 FR 18618 (April 30, 1982). With respect to CTAs, the Commission has previously stated that it would evaluate within the context of a particular rule proposal whether all or some affected CTAs would be considered to be small entities and, if so, the economic impact on them of the proposal. 22 Moreover, the Commission stated that CPOs would be considered small entities if they are exempt from registration by virtue of Regulation 4.13(a). 23 The Commission does not believe that the proposed amendments to Regulation 4.41 would have a significant impact on affected CTAs, CPOs, and their principals. This is because the only burden that would be imposed by the Proposal would be the obligation to comply with the antifraud provisions of Section 4 *o* of the Act when presenting the past performance of CTAs, CPOs, and their principal—whether by way of actual or hypothetical performance or through the use of testimonials. Assuming *arguendo,* however, that compliance with Section 4 *o* would constitute a significant burden, the burden is neither new nor additional, because the proposed revisions to Regulation 4.41 are consistent with the Commission's longstanding interpretation of Section 4 *o* as applicable to all advertisements by CTAs, CPOs, and their principals, including advertisements that are viewed electronically, and that such advertisements must not be false or misleading. 22 *Id.* at 18620. 23 *Id.* Accordingly, the Chairman, on behalf of the Commission, certifies pursuant to Section 605(b) of the RFA 24 that the Proposal will not have a significant economic impact on a substantial number of small entities. However, the Commission invites the public to comment on this finding. 24 5 U.S.C. 605(b). B. Paperwork Reduction Act The Paperwork Reduction Act of 1995

(PRA)imposes certain requirements on Federal agencies (including the Commission) in connection with their conducting or sponsoring any collection of information as defined by the PRA. The Proposal does not require a new collection of information on the part of any entities. Accordingly, for purposes of the PRA, the Commission certifies that the proposed rule amendments, if promulgated in final form, would not impose any new reporting or recordkeeping requirements. C. Cost-Benefit Analysis Section 15(a) of the Act 25 requires the Commission to consider the costs and benefits of its action before issuing a new regulation under the Act. By its terms, Section 15(a) does not require the Commission to quantify the costs and benefits of a new regulation or to determine whether the benefits of the proposed regulation outweigh its costs. Rather, Section 15(a) simply requires the Commission to “consider the costs and benefits” of its action. 25 7 U.S.C. 19(a). Section 15(a) further specifies that costs and benefits must be evaluated in light of five broad areas of market and public concern: protection of market participants and the public; efficiency, competitiveness, and financial integrity of futures markets; price discovery; sound risk management practices; and other public interest considerations. Accordingly, the Commission could in its discretion give greater weight to any one of the five enumerated areas and could in its discretion determine that, notwithstanding its costs, a particular rule was necessary or appropriate to protect the public interest or to effectuate any of the provisions or to accomplish any of the purposes of the Act. The Commission is considering the costs and benefits of this rule in light of the specific provisions of Section 15(a) of the Act as follows: 1. Protection of Market Participants and the Public Because the Proposal discusses the use of testimonials and the placement of the prescribed hypothetical disclaimer, and specifically includes advertisement via electronic media by CPOs, CTAs, and their principals, the Proposal should enhance the Commission's ability to protect market participants and the public. 2. Efficiency and Competition The Proposal should have no effect, from the standpoint of imposing costs or creating benefits, on efficiency or competition. 3. Financial Integrity of Futures Markets and Price Discovery The Proposal should have no effect, from the standpoint of imposing costs or creating benefits, on the financial integrity or price discovery function of the commodity futures and option markets. 4. Sound Risk Management Practices The Proposal should have no effect, from the standpoint of imposing costs or creating benefits, on the available range of sound risk management alternatives. 5. Other Public Interest Considerations The Proposal should have no effect, from the standpoint of imposing costs on, and may create public interest benefits to, consumers as a result of their having more honest information. After considering these factors, the Commission has determined to propose the amendments to Regulation 4.41 discussed above. The Commission invites public comment on its application of the cost-benefit provision. Commenters also are invited to submit any data that they may have quantifying the costs and benefits of the Proposal with their comment letters. List of Subjects in 17 CFR Part 1 Advertising, Brokers, Commodity futures, Commodity pool operators, Commodity trading advisors, Consumer protection, Reporting and recordkeeping requirements. For the reasons presented above, the Commission proposes to amend 17 CFR part 1 as follows: PART 1—GENERAL REGULATIONS UNDER THE COMMODITY EXCHANGE ACT 1. The authority citation for part 1 continues to read as follows: Authority: 7 U.S.C. 1a, 2, 5, 6, 6a, 6b, 6c, 6d, 6e, 6f, 6g, 6h, 6i, 6j, 6k, 6 *l* , 6m, 6n, 6 *o* , 6p, 7, 7a, 7b, 8, 9, 12, 12a, 12c, 13a, 13a-1, 16, 16a, 19, 21, 23 and 24, as amended by the Commodity Futures Modernization Act of 2000, Appendix E of Pub. L. 106-554, 114 Stat. 2763 (2000). 2. Section 4.41 is amended by removing “or” at the end of paragraph (a)(1), removing the period and adding a semi-colon and “or” at the end of paragraph (a)(2), adding new paragraph (a)(3), and revising paragraphs (b)(1)(i), (b)(2) and (c)(1) to read as follows: § 4.41 Advertising by commodity pool operators, commodity trading advisors, and the principals thereof.

(a)* * *

(3)Refers to any testimonial, unless the advertisement or sales literature providing the testimonial prominently discloses:

(i)That the testimonial may not be representative of the experience of other clients;

(ii)That the testimonial is no guarantee of future performance or success; and

(iii)If, more than a nominal sum is paid, the fact that it is a paid testimonial.

(b)* * *

(1)* * *

(i)The following statement: “These results are based on hypothetical or simulated performance results that have certain inherent limitations. Unlike the results shown in an actual performance record, these results do not represent actual trading. Also, because these trades have not actually been executed, these results may have under-or over-compensated for the impact, if any, of certain market factors, such as lack of liquidity. Hypothetical or simulated trading programs in general are also subject to the fact that they are designed with the benefit of hindsight. No representation is being made that any account will or is likely to achieve profits or losses similar to these being shown”; or

(2)If the presentation of such simulated or hypothetical performance is other than oral, the prescribed statement must be prominently disclosed and in immediate proximity to the simulated or hypothetical performance being presented.

(c)* * *

(1)To any publication, distribution or broadcast of any report, letter, circular, memorandum, publication, writing, advertisement or other literature or advice, whether by electronic media or otherwise, including information provided via internet or e-mail, the texts of standardized oral presentations and of radio, television, seminar or similar mass media presentations, and Issued in Washington, DC, on August 17, 2006, by the Commission. Eileen Donovan. Acting Secretary of the Commission. [FR Doc. E6-13946 Filed 8-22-06; 8:45 am] BILLING CODE 6351-01-P DEPARTMENT OF HOMELAND SECURITY DEPARTMENT OF THE TREASURY Bureau of Customs and Border Protection 19 CFR Parts 103, 178, and 181 [USCBP-2006-0090] RIN 1505-AB58 NAFTA: Merchandise Processing Fee Exemption and Technical Corrections AGENCY: Customs and Border Protection, Department of Homeland Security; Department of the Treasury. ACTION: Notice of proposed rulemaking. SUMMARY: The current regulations in title 19 of the Code of Federal Regulations allow CBP to collect a merchandise processing fee

(MPF)on imported shipments to recoup administrative expenses. However, “originating merchandise” that qualifies to be marked as goods of Canada or of Mexico under the NAFTA are exempted from this fee. CBP is proposing to amend the regulations to clarify that an importer is subject to the same declaration requirement that is established for claiming NAFTA duty preference in order to claim the exemption of the MPF for goods that meet a NAFTA rule of origin even when the goods are unconditionally free. In addition, CBP is proposing to make several technical corrections. CBP is proposing to amend the regulations to clarify that a Certificate of Origin is not required for a commercial importation for which the total value of originating goods does not exceed $2,500. CBP is also proposing to remedy two incorrect addresses and an incorrect Code of Federal Regulations citation. DATES: Comments must be received on or before October 23, 2006. ADDRESSES: You may submit comments, identified by docket number, by one of the following methods: • *Federal eRulemaking Portal: http://www.regulations.gov.* Follow the instructions for submitting comments via docket number USCBP-2006-0090. • *Mail:* Trade and Commercial Regulations Branch, Office of Regulations and Rulings, Bureau of Customs and Border Protection, 1300 Pennsylvania Avenue, NW., (Mint Annex), Washington, DC 20229. *Instructions:* All submissions received must include the agency name and docket number for this rulemaking. All comments received will be posted without change to *http://www.regulations.gov* , including any personal information provided. For detailed instructions on submitting comments and additional information on the rulemaking process, see the “Public Participation” heading of the SUPPLEMENTARY INFORMATION section of this document. *Docket:* For access to the docket to read background documents or comments received, go to *http://www.regulations.gov.* Submitted comments may also be inspected during regular business days between the hours of 9 a.m. and 4:30 p.m. at the Office of Regulations and Rulings, Bureau of Customs and Border Protection, 799 9th Street, NW., 5th Floor, Washington, DC. Arrangements to inspect submitted comments should be made in advance by calling Joseph Clark at

(202)572-8768. FOR FURTHER INFORMATION CONTACT: Seth Mazze, Trade Agreements Branch, Office of Field Operations,

(202)344-2634. SUPPLEMENTARY INFORMATION: Public Participation Interested persons are invited to participate in this rulemaking by submitting written data, views, or arguments on all aspects of the proposed rule. CBP also invites comments that relate to the economic, environmental, or federalism effects that might result from this proposed rule. Comments that will provide the most assistance to CBP in developing these procedures will reference a specific portion of the proposed rule, explain the reason for any recommended change, and include data, information, or authority that support such recommended change. Background On December 17, 1992, the United States, Canada, and Mexico entered into the North American Free Trade Agreement (NAFTA). Among the stated objectives of the NAFTA is the elimination of barriers to trade in, and the facilitation of the cross-border movement of, goods and services between the territories of the countries. The provisions of the NAFTA were adopted by the United States with the enactment of the North American Free Trade Agreement Implementation Act (“the Act,” 19 U.S.C. 3301-3473). On September 6, 1995, Customs published Treasury Decision (T.D.) 95-68 (North American Free Trade Agreement) in the **Federal Register** (60 FR 46334), adopting amendments to the regulations in title 19 of the Code of Federal Regulations

(CFR)to implement Customs-related aspects of the NAFTA. The final rule went into effect on October 1, 1995. Sections 403(1) and 411 of the Homeland Security Act of 2002 (Pub. L. 107-296) transferred the United States Customs Service and certain of its functions from the Department of the Treasury to the Department of Homeland Security; pursuant to section 1502 of the Act, the President renamed the “Customs Service” as the “Bureau of Customs and Border Protection,” also referred to as the “CBP.” Merchandise Processing Fee

(MPF)Exemption As a means of recouping administrative expenses for the processing of imported shipments, CBP charges a merchandise processing fee (MPF), as provided for in 19 U.S.C. 58c. However, under 19 U.S.C. 58c(b)(10)(B), for goods qualifying under the rules of origin set out in 19 U.S.C. 3332, the fee may not be charged with respect to goods that qualify to be marked as goods of Canada or of Mexico (pursuant to Annex 311 of the NAFTA). In order to claim a NAFTA duty preference, an importer must make a declaration. The same declaration is used to claim the MPF exemption. That is, the importer must place the appropriate special program indicator (e.g., “CA” for goods of Canada and “MX” for goods of Mexico) opposite the good on the entry form. The proposal in this document addresses the situation in which an importer of an originating good has no duty preference incentive to make the required NAFTA declarations on the entry because the Normal Trade Relations rate of duty on the good is free (i.e., the good is unconditionally duty free). Accordingly, CBP is proposing to amend 19 CFR 181.21(a) to clarify, consistent with existing law and CBP practice, that in order to claim the MPF exemption for unconditionally free goods from a NAFTA country, an importer of an originating good must place the appropriate special program indicator opposite the good on the entry form even though the importer is not claiming a NAFTA duty preference. Technical Corrections Exemption From Providing Certificate of Origin Section 181.22(b) of title 19, CFR (19 CFR 181.22(b)), requires an importer who claims preferential tariff treatment on a good under 19 CFR 181.21 to provide, at the request of the port director, a copy of each Certificate of Origin pertaining to the good which is in the possession of the importer. Certain importations are exempted from this requirement under 19 CFR 181.22(d). One of these exemptions, set forth in section 181.22(d)(1)(iii) is for a commercial importation of a good whose value does not exceed $2,500 if a signed statement is attached to the invoice or other documents accompanying the shipment. CBP has determined that 19 CFR 181.22(d)(1)(iii) should be amended to clarify that the $2,500 value refers to the total value of a shipment and not to the value of the individual goods in a shipment. Accordingly, CBP is proposing to amend 19 CFR 181.22(d)(1)(iii) to clarify that a Certificate of Origin is not required for a commercial importation consisting of originating goods, the total value of which does not exceed $2,500, if the required statement is attached. Other Technical Corrections CBP is also proposing to make several other technical corrections to the regulations. In CBP Dec. 05-32, an Interim Rule published in the **Federal Register** (70 FR 58009) on October 5, 2005, CBP redesignated 19 CFR 12.132 as 102.25. However, there is a reference to § 12.132 in § 181.21(a). Accordingly, CBP is proposing to make a minor conforming amendment to update this reference. In addition, because CBP Dec. 05-32 removed the declaration requirement referenced in §§ 12.130(c) and 12.132, CBP is proposing to remove the entries for these sections in the list of OMB control numbers in § 178.2. CBP is also proposing to amend an incorrect citation to 19 CFR 181.72(a)(2)(iii) in 19 CFR 181.74(a). The correct citation is to § 181.72(a)(3)(iii). In addition, CBP is proposing to amend the address in 19 CFR 181.74(e) for providing notification when the Canadian or Mexican customs administration intends to conduct a NAFTA verification visit in the U.S. in order to determine whether a good imported into the U.S. qualifies as an originating good. The correct address is: “Bureau of Customs and Border Protection, Office of Field Operations, Special Enforcement Division, 1300 Pennsylvania Ave., NW., Washington, DC 20229.” CBP is also proposing to amend the National Commodity Specialist Division

(NCSD)address in 19 CFR 181.93(a) for the submission of advance ruling requests under the NAFTA. The correct NCSD address is: “National Commodity Specialist Division, Bureau of Customs and Border Protection, One Penn Plaza, 10th Floor, New York, NY 10119.” This address is also corrected in the list of public reading rooms in 19 CFR 103.1. Signing Authority The signing authority for this document falls under 19 CFR 0.1(a)(1). Paperwork Reduction Act Because those changes with possible paperwork implications proposed in this document are merely clarifications of existing requirements, there is no need to amend the paperwork burden for the number previously approved by OMB for part 181 of title 19, CFR. The clearance number for part 181 is 1651-0098. Regulatory Flexibility Act and Executive Order 12866 Pursuant to the provisions of the Regulatory Flexibility Act (6 U.S.C. 601 *et seq.* ), it is certified that the proposed amendments will not have a significant economic impact on a substantial number of small entities. CBP is proposing to merely clarify, consistent with existing law and CBP practice, that an importer is subject to the same declaration requirement that is established for claiming NAFTA duty preference in order to claim the exemption of the MPF for goods that meet a NAFTA rule of origin even when the goods are unconditionally free. CBP is also proposing to merely clarify, consistent with current CBP practice, that a Certificate of Origin is not required for a commercial importation consisting of originating goods, the total value of which does not exceed $2,500, if the required statement is attached. Lastly, CBP is proposing to make other technical corrections to correct two incorrect addresses and an incorrect Code of Federal Regulations citation. For the same reasons, this document does not meet the criteria for a significant regulatory action under Executive Order 12866. List of Subjects 19 CFR Part 103 Administrative practice and procedure, Freedom of information. 19 CFR Part 178 Collections of information, Paperwork requirements, Reporting and recordkeeping requirements. 19 CFR Part 181 Canada, Customs duties and inspection, Imports, Mexico, Trade agreements (North American Free Trade Agreement). Proposed Amendments to the Regulations It is proposed to amend 19 CFR parts 103, 178, and 181 as set forth below. PART 103—AVAILABILITY OF INFORMATION 1. The authority citation for part 103 continues to read as follows: Authority: 5 U.S.C. 301, 552, 552a; 19 U.S.C. 66, 1624; 31 U.S.C. 9701. 2. Amend § 103.1 by removing the address citation “New York, 6 World Trade Center, New York, New York 10048” and adding in its place the address citation “New York, One Penn Plaza, 10th Floor, New York, NY 10119”. PART 178—APPROVAL OF INFORMATION COLLECTION REQUIREMENTS 3. The authority citation for part 178 continues to read as follows: Authority: 5 U.S.C. 301; 19 U.S.C. 1624; 44 U.S.C. 3501 *et seq.* 4. Amend § 178.2 by removing the entries for 12.130(c) and 12.132. PART 181—NORTH AMERICAN FREE TRADE AGREEMENT 5. The authority citation for part 181 continues to read as follows: Authority: 19 U.S.C. 66, 1202 (General Note 3(i), Harmonized Tariff Schedule of the United States), 1624, 3314. 6. Revise § 181.21(a) to read as follows: § 181.21 Filing of claim for preferential tariff treatment upon importation.

(a)*Declaration.* In connection with a claim for preferential tariff treatment, or for the exemption from the merchandise processing fee, for a good under the NAFTA, the U.S. importer shall make a written declaration that the good qualifies for such treatment. The written declaration may be made by including on the entry summary, or equivalent documentation, the symbol “CA” for a good of Canada, or the symbol “MX” for a good of Mexico, as a prefix to the subheading of the HTSUS under which each qualifying good is classified. Except as otherwise provided in 19 CFR 181.22 and except in the case of a good to which Appendix 6.B to Annex 300-B of the NAFTA applies (see also 19 CFR 102.25), the declaration shall be based on a complete and properly executed original Certificate of Origin, or copy thereof, which is in the possession of the importer and which covers the good being imported. 7. Amend § 181.22(d)(1)(iii) by removing the phrase “of a good whose value”, and adding in its place the phrase “for which the total value of originating goods”. 8. Amend § 181.74 by: a. In paragraph (a), removing the citation “181.72(a)(2)(iii)” and adding in its place the citation “181.72(a)(3)(iii)”; and b. In paragraph (e), removing the address citation “Project North Star Coordination Center, P.O. Box 400, Buffalo, New York 14225-0400” and adding in its place the address citation “Bureau of Customs and Border Protection, Office of Field Operations, Special Enforcement Division, 1300 Pennsylvania Ave., NW., Washington, DC 20229”. 9. Amend § 181.93(a) by removing the address citation “National Commodity Specialist Division, United States Customs Service, 6 World Trade Center, New York, NY 10048” and adding in its place the address citation “National Commodity Specialist Division, Bureau of Customs and Border Protection, One Penn Plaza, 10th Floor, New York, NY 10119”. Dated: August 17, 2006. Deborah J. Spero, Acting Commissioner, Customs and Border Protection. Timothy E. Skud, Deputy Assistant Secretary of the Treasury. [FR Doc. E6-13947 Filed 8-22-06; 8:45 am] BILLING CODE 9111-14-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R03-OAR-2006-0607; FRL-8212-6] Approval and Promulgation of Air Quality Implementation Plans; Maryland; State Implementation Plan Revision for American Cyanamid Company, Havre de Grace, MD AGENCY: Environmental Protection Agency (EPA). ACTION: Proposed rule. SUMMARY: EPA is proposing to approve a State Implementation Plan

(SIP)revision submitted by the State of Maryland. This revision pertains to the removal of an August 2, 1984 Secretarial Order (Order) from the Maryland SIP. The Order constituted a Plan for Compliance

(PFC)and an alternative method of assessing compliance at an American Cyanamid Company (Company) facility located in Havre de Grace, Harford County, Maryland (the Facility). The Order allowed for certain volatile organic compound

(VOC)emissions sources at the Facility to achieve compliance with emissions limits through averaging (or “bubbling”) of emissions over a 24-hour period. Removal of the Order from the SIP will remove the “bubbling” compliance option for these sources at the Facility. In lieu of “bubbling,” the sources must comply with the approved and more stringent Maryland SIP provisions for the control of VOC emissions, which do not allow averaging or “bubbling.” This action is being taken under the Clean Air Act (CAA or the Act). DATES: Written comments must be received on or before September 22, 2006. ADDRESSES: Submit your comments, identified by Docket ID Number EPA-R03-OAR-2006-0607 by one of the following methods: A. *http://www.regulations.gov* . Follow the on-line instructions for submitting comments. B. *E-mail: morris.makeba@epa.gov.* C. *Mail:* EPA-R03-OAR-2006-0607, Makeba Morris, Chief, Air Quality Planning and Analysis Branch, Mailcode 3AP21, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103. D. *Hand Delivery:* At the previously-listed EPA Region III address. Such deliveries are only accepted during the Docket'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-R03-OAR-2006-0607. EPA's policy is that all comments received will be included in the public docket without change, and may be made available online at *http://www.regulations.gov,* including any personal information provided, unless the comment includes information claimed to be Confidential Business Information

(CBI)or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through *http://www.regulations.gov* or e-mail. The *http://www.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 *http://www.regulations.gov,* your e-mail address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. *Docket:* All documents in the electronic docket are listed in the *http://www.regulations.gov* index. Although listed in the index, some information is not publicly available, *i.e.,* 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 in *http://www.regulations.gov* or in hard copy during normal business hours at the Air Protection Division, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103. Copies of the State submittal are available at the Maryland Department of the Environment, 1800 Washington Boulevard, Suite 705, Baltimore, Maryland 21230. FOR FURTHER INFORMATION CONTACT: Neil Bigioni,

(215)814-2781, or by e-mail at *bigioni.neil@epa.gov.* SUPPLEMENTARY INFORMATION: On May 17, 2006, the Maryland Department of the Environment submitted a revision to its SIP entitled “Removal of the 1984 American Cyanamid Company Secretarial Order from Maryland's State Implementation Plan.” The request was for the removal of a Secretarial Order (by Consent) currently incorporated into the Maryland SIP. EPA is proposing to approve Maryland's requested SIP revision removing the Order from the SIP. I. Background EPA published a final rule on May 16, 1990 (55 FR 20269), approving the Order issued to the Company's adhesive manufacturing facility in Havre de Grace, Maryland (the Facility), as a revision to the Maryland SIP. The Order provided the Company with a PFC and an alternative method of assessing compliance for certain installations located at the Facility by allowing the averaging or “bubbling” of the emissions of VOC over a 24-hour period. By allowing “bubbling” of VOC emissions the Company could over-control emissions at some units and under control at other units such that the overall emissions from the sources collectively would be the same as those that would be achieved utilizing traditional control strategies at each source. The VOC sources where “bubbling” was allowed at the Facility were components of the Facility's paper and fabric adhesive coating operation, and included Towers 2, 3, and 5 and the FM-1000 coater/dryer. Since EPA's May 16, 1990 approval of the Order as a SIP revision the Facility has been acquired by Cytec Engineered Materials, Inc. (Cytec). II. Summary of SIP Revision EPA is proposing to approve this SIP revision submitted by the State of Maryland. The revision will remove the Order from the Maryland SIP. Removal of the Order from the SIP will subject the VOC emissions sources at the Facility that formerly subject to the “bubbling” provisions of the Order to the Maryland VOC regulations and limits codified at Code of Maryland Regulations (COMAR) 26.11.19.07. Those COMAR regulations are part of the Maryland SIP. (65 FR 2334, January 14, 2000). The materials submitted by Maryland in support of the SIP revision indicate that the Facility currently intends to comply with the SIP-approved VOC limits by reducing VOC emissions through use of a regenerative thermal oxidizer, as allowed by COMAR 26.11.19.02B(2)(b)(ii) and the Maryland SIP (68 FR 9012, February 27, 2003). This proposed SIP revision will remove the current ability for Cytec to comply with VOC emissions limits for the sources subject to the Order through averaging or “bubbling” of VOC emissions. The SIP-approved limits codified at COMAR 26.11.19.07C do not allow for compliance through averaging/”bubbling.” The applicable COMAR 26.11.19.07C limits of 2.9 pounds of VOC per gallon of coating as applied (minus water), are also more stringent than the emissions limit of 3.2 pounds of VOC per gallon of coating as applied (minus water) imposed by the Order. III. Proposed Action EPA is proposing to approve Maryland's SIP revision submitted May 27, 2006 to remove the August 2, 1984 Secretarial Order issued to American Cyanamid Company from the SIP. EPA is soliciting public comments on the issues discussed in this document. These comments will be considered before taking final action. IV. Statutory and Executive Order Reviews Under Executive Order 12866 (58 FR 51735, October 4, 1993), this proposed action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355 (May 22, 2001)). This action merely proposes to approve state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this proposed rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 *et seq.* ). Because this rule proposes to approve pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4). This proposed rule also does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it 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 (64 FR 43255, August 10, 1999), because it merely proposes to approve a state rule implementing a Federal requirement, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This proposed rule also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is not economically significant. In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. As required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this proposed rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct. EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the takings implications of the rule in accordance with the “Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings” issued under the executive order. This proposed rule to remove the Secretarial Order for American Cyanamid from the Maryland SIP does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 *et seq.* ). List of Subjects in 40 CFR Part 52 Environmental protection, Air pollution control, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds. Authority: 42 U.S.C. 7401 *et seq.* Dated: August 16, 2006. Donald S. Welsh, Regional Administrator, Region III. [FR Doc. E6-13952 Filed 8-22-06; 8:45 am] BILLING CODE 6560-50-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 82 [EPA-HQ-OAR-2005-0151, FRL-8212-5] RIN 2060-AK45 Protection of Stratospheric Ozone: Adjusting Allowances for Class I Substances for Export to Article 5 Countries AGENCY: Environmental Protection Agency (EPA). ACTION: Notice of proposed rulemaking. SUMMARY: This proposed action amends previous action by the Agency regarding the allocation of Article 5 allowances that permit production of ozone-depleting substances

(ODS)that are Class I, Group I controlled substances solely for export to developing countries to meet those countries' basic domestic needs. Specifically, this action will remove the 2007-2009 phasedown step for companies that manufacture CFCs-11, -12, or -114 for export to meet the basic domestic needs of developing countries. The Agency is taking this action in response to notification that there would otherwise be a shortfall in the availability of pharmaceutical-grade CFCs for use in metered dose inhalers in developing countries. In a final rule published December 29, 2005, EPA established initial baselines for each company that are far more stringent than required under the Beijing Adjustments to the Montreal Protocol on Substances that Deplete the Ozone Layer (the Montreal Protocol), which set out restrictions for production to meet basic domestic needs. Therefore, even without the 2007-2009 step-down reduction, the U.S. will be at production levels to meet basic domestic needs that are far below those allowed under the Beijing Adjustments. This action is taken in accordance with the Montreal Protocol and the Clean Air Act (CAA). DATES: Written comments on the rule must be received on or before September 22, 2006. Any party requesting a public hearing must notify the contact person listed below by 5 p.m. eastern standard time on August 28, 2006. If a hearing is requested it will be held on September 7, 2006 and comments will be due to the Agency October 10, 2006. EPA will post information regarding a hearing, if one is requested, on the Ozone Protection Web site *http://www.epa.gov/ozone* . Persons interested in attending a public hearing should consult with the contact person below regarding the location and time of the hearing. ADDRESSES: Submit your comments, identified by Docket ID No. OAR-2005-0151, by one of the following methods: • *http://www.regulations.gov:* follow the on-line instructions for submitting comments. • E-mail: *A-and-R-docket@epa.gov* . • Fax: 202-566-1741. • Mail: Air Docket, Environmental Protection Agency, Mailcode: 6102T, 1200 Pennsylvania Ave., NW., Washington, DC 20460. • Hand Delivery or Courier. Deliver your comments to: EPA Air Docket, EPA West, 1301 Constitution Avenue, NW., Room B108, Mail Code 6102T, Washington, DC 20004. Such deliveries are only accepted during the Docket'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-HQ-OAR-2005-0151 EPA's policy is that all comments received will be included in the public docket without change and may be made available online at *http://www.regulations.gov* , including any personal information provided, unless the comment includes information claimed to be Confidential Business Information

(CBI)or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through *www.regulations.gov* or e-mail. The *http://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. For additional information about EPA's public docket visit the EPA Docket Center homepage at *http://www.epa.gov/epahome/dockets.htm* . *Docket:* All documents in the docket are listed in the *www.regulations.gov* index. Although listed in the index, some information is not publicly available, e.g., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, will be publicly available only in hard copy. Publicly available docket materials are available either electronically in *www.regulations.gov* or in hard copy at the Air Docket, EPA/DC, EPA West, Room B102, 1301 Constitution Ave., NW., Washington, DC. This Docket Facility is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is

(202)566-1744, and the telephone number for the Air Docket is

(202)566-1742. FOR FURTHER INFORMATION CONTACT: Cindy Axinn Newberg, EPA, Stratospheric Protection Division, Office of Atmospheric Programs, Office of Air and Radiation (6205J), 1200 Pennsylvania Avenue, NW., Washington, DC 20460,

(202)343-9729, *newberg.cindy@epa.gov* . Table of Contents I. What Is the Legislative and Regulatory Background of the Phaseout Regulations for Ozone-Depleting Substances? II. Today's Action III. Statutory and Executive Order Reviews A. Executive Order No. 12866: Regulatory Planning and Review B. Paperwork Reduction Act C. Regulatory Flexibility D. Unfunded Mandates Reform Act E. Executive Order No. 13132: Federalism F. Executive Order No. 13175: Consultation and Coordination With Indian Tribal Governments G. Executive Order No. 13045: Protection of Children From Environmental Health & Safety Risks H. Executive Order No. 13211: Actions That Significantly Affect Energy Supply, Distribution, or Use I. National Technology Transfer Advancement Act J. Congressional Review Act I. What Is the Legislative and Regulatory Background of the Phaseout Regulations for Ozone-Depleting Substances? The current regulatory requirements of the Stratospheric Ozone Protection Program that limit production and consumption of ozone-depleting substances

(ODSs)can be found at 40 CFR part 82, subpart A. The regulatory program was originally published in the **Federal Register** on August 12, 1988 (53 FR 30566), in response to the 1987 signing and subsequent ratification of the Montreal Protocol on Substances that Deplete the Ozone Layer (Montreal Protocol). The U.S. was one of the original signatories to the 1987 Montreal Protocol and the U.S. ratified the Protocol on April 21, 1988. Congress then enacted, and President Bush signed into law, the Clean Air Act Amendments of 1990 (CAAA of 1990), which included Title VI on Stratospheric Ozone Protection, codified as 42 U.S.C. Chapter 85, Subchapter VI, to ensure that the United States could satisfy its obligations under the Montreal Protocol. EPA issued new regulations to implement this legislation and has made several amendments to the regulations since. The requirements contained in the final rules published in the **Federal Register** on December 20, 1994 (59 FR 65478) and May 10, 1995 (60 FR 24970) establish an Allowance Program. The Allowance Program and its history are described in the notice of proposed rulemaking published in the **Federal Register** on November 10, 1994 (59 FR 56276). The control and the phaseout of the production and consumption of Class I ODSs as required under the Protocol and the CAA are accomplished through the Allowance Program. In developing the Allowance Program, we collected information on the amounts of ODSs produced, imported, exported, transformed and destroyed within the U.S. for specific baseline years for specific chemicals. This information was used to establish the U.S. production and consumption ceilings for these chemicals. The data were also used to assign company-specific production and import rights to companies that were in most cases producing or importing during the specific year of data collection. These production or import rights are called “allowances.” Due to the complete phaseout of many ODSs, the quantities of allowances granted to companies for those chemicals were gradually reduced and eventually eliminated. Production allowances and consumption allowances no longer exist for any ODSs that are Class I controlled substances. All production or consumption of Class I controlled substances is prohibited under the Montreal Protocol and the CAA, except for a few narrow exemptions. In the context of the regulatory program, the use of the term “consumption” may be misleading. Consumption does not mean the “use” of a controlled substance, but rather is defined as the formula: production + imports−exports, of controlled substances (Article 1 of the Protocol and Section 601 of the CAA). Class I controlled substances that were produced or imported through the expenditure of allowances prior to their phaseout date may continue to be used by industry and the public after their phaseout date except where the regulations include explicit use restrictions. Use of such substances may be subject to other regulatory limitations. The specific names and chemical formulas for the Class I controlled substances are in Appendix A and Appendix F in Subpart A of 40 CFR Part 82. The specific names and chemical formulas for the Class II controlled substances are in Appendix B and Appendix F in Subpart A. Although the regulations phased out the production and consumption of Class I controlled substances, a very limited number of exemptions exist, consistent with U.S. obligations under the Montreal Protocol. The regulations allow for the manufacture of phased-out Class I controlled substances provided the substances are either transformed or destroyed. They also allow limited manufacture if the substances are

(1)exported to meet the basic domestic needs of countries operating under Article 5 of the Montreal Protocol or

(2)produced for essential or critical uses as authorized by the Montreal Protocol and the regulations. Limited exceptions to the ban on the import of phased-out Class I controlled substances also exist if the substances are:

(1)Previously used,

(2)imported for essential or critical uses as authorized by the Montreal Protocol and the regulations,

(3)imported for destruction or transformation only, or

(4)a transhipment or

(5)a heel (a small amount of controlled substance remaining in a container after it is discharged or off-loaded) (40 CFR 82.4). On December 29, 2005, EPA published a final rule in the **Federal Register** (70 FR 77042) concerning production of specific Class I controlled substances for export to meet the basic domestic needs of developing countries (“Article 5” countries). It established a new Article 5 allowance baseline for Class I controlled substances, established a schedule for phased reductions in such allowances, and extended the time allowed for Article 5 production for methyl bromide. Article 5 allowances are solely for production to meet the basic domestic needs of developing countries referred to in the Protocol as “Article 5” parties. This action amends the schedule for phased reductions in Article 5 allowances for companies that produce and export Class I, Group I substances to meet the basic domestic needs of Article 5 countries. II. Today's Action Under the Montreal Protocol, industrialized countries and developing countries have different schedules for phasing out the production and import of ODSs. Developing countries operating under Article 5, paragraph 1 of the Montreal Protocol in most cases have additional time in which to phase out ODSs. The Parties to the Montreal Protocol recognized that it would be inadvisable for developing countries to spend their scarce resources to build new ODS manufacturing facilities to meet their basic domestic needs as industrialized countries phase out. The Parties therefore decided to permit a small amount of production in industrialized countries, in addition to the amounts permitted under those countries' phaseout schedules, for export to meet the basic domestic needs of developing countries. The adjustments to the Montreal Protocol adopted by the Parties at their 11th meeting in Beijing required Parties that manufacture ODSs for basic domestic needs to establish baselines for such production, calculated based on the average quantity of the ODS exported to Article 5 countries over a specified range of years. The adjustments also instituted a reduction schedule for Article 5 manufacture which reflects the reduction schedule in place for developing country ODS consumption. The Beijing Adjustments underscore the Parties' concern that global oversupply of certain Class I ODSs is interfering with the transition to alternatives. The oversupply of these ODSs results in low prices that make it difficult for non-ozone-depleting alternatives to compete in the marketplace. Businesses and individuals thus lack an economic incentive to transition to alternatives. The Beijing baseline calculation was designed to overcome this problem with respect to Article 5 countries by reducing supply to those countries. The price of these ODSs should rise to reflect the decrease in supply. In response to the Beijing Adjustments, EPA published a final rule in the **Federal Register** on December 29, 2005 (70 FR 77042). The Beijing Adjustments to the Protocol, Article 2A, paragraphs 4-7 state that an industrialized Party's allowable production of CFCs-11, -12, -113, -114, and -115, referred to under the Clean Air Act as Class I, Group I substances, to meet the basic domestic needs of Article 5 Parties shall be measured against “the annual average of its production of [these substances] for basic domestic needs for the period 1995 to 1997 inclusive.” EPA's December 29, 2005 action was far more stringent than the requirements set forth in Beijing. The Agency established a baseline for Class I, Group I substances using the more recent export data from the years 2000-2003, years in which there were far fewer exports. Therefore, instead of establishing an aggregate baseline for Class I, Group I substances of 9,951 metric tons—reflecting the 1995-1997 average called for by the Beijing Adjustments—EPA's December 29, 2005 final rule established a more stringent baseline of 345 metric tons, reflecting export data from 2000-2003, believing that more recent export data represented a truer picture of the actual basic domestic needs for these chemicals in developing countries and would thereby address the concerns regarding global oversupply of CFCs. After publication of the December 29, 2005 final rule, EPA was informed that although there is a global oversupply of CFCs in general, there are not sufficient supplies of pharmaceutical-grade CFCs available for use in metered dose inhalers in developing countries. Pharmaceutical-grade CFCs are more pure than a typical batch of CFCs and have to meet stringent specifications set out by regulatory authorities if they are to be used in medical devices. Developed countries like the United States have already reached their phaseout date for the production and consumption of CFCs. Under the Montreal Protocol, once a Party has reached the phaseout date for CFCs it is allowed to apply for an essential use exemption, which permits the Party to consume limited amounts of CFCs for essential uses such as certain metered dose inhalers. Developing countries do not phase out their CFC consumption until 2010 and do not have access to an essential use exemption until that time. Therefore, the Agency's previous conclusion that there is an oversupply of CFCs was not correct with regard to pharmaceutical-grade CFCs. Because the essential use exemption will not be available to developing countries until 2010, there is a need for developed countries to supply CFCs to meet this demand between 2007 and 2009 under the provisions for basic domestic needs identified in the Montreal Protocol and EPA regulations. The number of facilities that are rated for pharmaceutical-grade CFC production is limited. One company that owns such a facility in the U.S. had previously sourced the developing country demand for pharmaceutical-grade CFCs from a facility in Europe which, as of 2006, is no longer in operation. Since EPA's December 29, 2005 final rule set baselines for CFC production for basic domestic needs that are far below the requirements of the Beijing Adjustments, the Agency could allow for a moderate increase in the amount of CFC production to meet domestic needs in order to make up the potential shortfall in pharmaceutical-grade CFC production for developing countries, while still exceeding compliance with the U.S.'s Montreal Protocol obligations. The Montreal Protocol encourages industrial rationalization to minimize the number of sources that produce ozone-depleting substances. The closure of plants in Europe and in developing countries as part of their phase out plans is consistent with this environmental goal. However, EPA recognizes the compelling public health rationale for continued manufacture of certain CFC-containing metered dose inhalers (MDIs). In fact, on April 11, 2006, EPA published a proposed rule in the **Federal Register** to allow for the manufacture of CFCs for use in metered dose inhalers in the United States for the year 2006, nearly ten years after our phaseout of CFCs (71 FR 18262). Therefore, the Agency is proposing to remove the next phasedown step for companies that manufacture Class I, Group I substances from the phaseout schedule for Article 5 allowances effective January 1, 2007. Since the Agency's December 29, 2005 final rule established very low baselines for these substances, the U.S. will still exceed compliance with the Beijing Adjustments even without a step-down to 15% of baseline. A step-down to 15% of the baseline established by the Beijing Adjustments (which is based on 1995-1997 export data) would result in an allowable production level of 1,493 metric tons. By comparison, EPA's proposed approach, which uses the more stringent regulatory baseline based on 2000-2003 export data but maintains the 50% step-down level through 2009, results in an allowable production level of only 173 metric tons. As a result of the action described in this proposed rulemaking, companies that manufacture Class I, Group I substances will have their Article 5 production frozen at the 2006 reduction level of 50% of baseline for the remaining years of the Article 5 reduction schedule, specifically years 2007-2009. EPA reviewed data provided on the volume of pharmaceutical-grade CFCs produced to meet basic domestic needs over the years 2000-2005 and consulted with other governments to confirm whether they did project a need for pharmaceutical-grade CFCs between 2007 and 2009. In removing the next step-down requirement from our domestic regulation, EPA will allow companies to manufacture at their 2006 level, which will be sufficient to meet the need for pharmaceutical-grade CFCs based on the data reviewed by the Agency. III. Statutory and Executive Order Reviews A. Executive Order No. 12866: Regulatory Planning and Review This action is not a “significant regulatory action” under the terms of Executive Order

(EO)12866 (58 FR 51735, October 4, 1993) and is therefore not subject to review under the EO. B. Paperwork Reduction Act This proposed action does not impose any new information collection burden. However, the Office of Management and Budget

(OMB)has previously approved the information collection requirements contained in the existing regulations, 40 CFR Part 82, under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 *et seq.* and has assigned OMB control number 2060-0170, EPA ICR number 1432. A copy of the OMB-approved Information Collection Request

(ICR)may be obtained from Susan Auby, Collection Strategies Division; U.S. Environmental Protection Agency (2822T); 1200 Pennsylvania Ave., NW., Washington, DC 20460 or by calling

(202)566-1672. Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information. An Agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations are listed in 40 CFR Part 9 and 48 CFR Chapter 15. C. Regulatory Flexibility Act EPA has determined that it is not necessary to prepare a regulatory flexibility analysis in connection with this proposed rule. For purposes of assessing the impacts of today's rule on small entities, small entity is defined as:

(1)A small business that is identified by the North American Industry Classification System (NAICS) Code in the Table below;

(2)a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and

(3)a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field. Category NAICS code SIC code SIC small business size standard (in number of employees or millions of dollars) 1. Chemical and Allied Products, NEC 422690 5169 100 After considering the economic impacts of this proposed rule on small entities, EPA has concluded that this action will not have a significant economic impact on a substantial number of small entities. This proposed rule will not impose any requirements on small entities, as it regulates large corporations that produce, import, or export Class I controlled substances. There are no small entities in this regulated industry. 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, 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 an EPA rule for which a written statement is needed, section 205 of the UMRA generally requires EPA to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective, or least burdensome alternative that achieves the objectives of the rule. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows EPA to adopt an alternative other than the least costly, most cost-effective, or least burdensome alternative if the Administrator publishes with the final rule an explanation why that alternative was not adopted. Before EPA establishes any regulatory requirements that may significantly or uniquely affect small governments, including tribal governments, it must have developed under section 203 of the UMRA a small government agency plan. The plan must provide for notifying potentially affected small governments, enabling officials of affected small governments to have meaningful and timely input in the development of EPA regulatory proposals with significant Federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements. EPA has determined that this proposed rule does not contain a Federal mandate that may result in expenditures of $100 million or more for State, local, and tribal governments, in the aggregate, or the private sector in any one year. Thus, today's rule is not subject to the requirements of sections 202 and 205 of the UMRA. Further, EPA has determined that this proposed rule contains no regulatory requirements that might significantly or uniquely affect small governments because it does not impose any requirements on any State, local, or tribal government. E. Executive Order No. 13132: Federalism Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” This proposed 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 proposed rule is expected to primarily affect producers and exporters of Class I, Group I controlled substances. Thus, Executive Order 13132 does not apply to this proposed rule. F. Executive Order No. 13175: Consultation and Coordination With Indian Tribal Governments Executive Order No. 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000), requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” This proposed rule does not have tribal implications, as specified in Executive Order No. 13175, because it does not significantly or uniquely affect the communities of Indian tribal governments. The proposed rule does not impose any enforceable duties on communities of Indian tribal governments. Thus, Executive Order No. 13175 does not apply to this proposed rule. G. Executive Order No. 13045: Protection of Children From Environmental Health & Safety Risks Executive Order 13045: “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997) applies to any rule that:

(1)Is determined to be “economically significant” under E.O. 12866, and

(2)concerns an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, 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. While this proposed rule is not subject to the Executive Order because it is not economically significant as defined in E.O. 12866, we nonetheless have reason to believe that the environmental health or safety risk addressed by this action may have a disproportionate effect on children. Depletion of stratospheric ozone results in greater transmission of the sun's ultraviolet

(UV)radiation to the earth's surface. The following studies describe the effects on children of excessive exposure to UV radiation:

(1)Westerdahl J, Olsson H, Ingvar C. “At what age do sunburn episodes play a crucial role for the development of malignant melanoma,” Eur J Cancer 1994; 30A:1647-54;

(2)Elwood JM, Jopson J. “Melanoma and sun exposure: an overview of published studies,” Int J Cancer 1997; 73:198-203;

(3)Armstrong BK. “Melanoma: childhood or lifelong sun exposure,” In: Grobb JJ, Stern RS, Mackie RM, Weinstock WA, eds. “Epidemiology, causes and prevention of skin diseases,” 1st ed. London, England: Blackwell Science, 1997:63-6;

(4)Whiteman D., Green A. “Melanoma and Sunburn,” Cancer Causes Control, 1994; 5:564-72;

(5)Kricker A, Armstrong, BK, English, DR, Heenan, PJ. “Does intermittent sun exposure cause basal cell carcinoma? A case control study in Western Australia,” Int J Cancer 1995; 60:489-94;

(6)Gallagher, RP, Hill, GB, Bajdik, CD, et al. “Sunlight exposure, pigmentary factors, and risk of nonmelanocytic skin cancer I, Basal cell carcinoma,” Arch Dermatol 1995; 131:157-63;

(7)Armstrong, BK. “How sun exposure causes skin cancer: an epidemiological perspective,” Prevention of Skin Cancer. 2004; 89-116. Allowing continuing U.S. production to meet developing countries' basic domestic needs, including their need for pharmaceutical-grade CFCs, avoids the need for those countries to install new ODS manufacturing facilities. The amount of CFCs that will be released to the atmosphere should remain the same regardless of the manufacturing location. In addition, avoiding the installation of new capacity is one means of ensuring that production levels continue to decline. Thus, this proposed rule is not expected to increase the impacts on children's health from stratospheric ozone depletion. H. Executive Order No. 13211: Actions That Significantly Affect Energy Supply, Distribution, or Use This proposed rule is not a “significant energy action” as defined in Executive Order No. 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355 (May 22, 2001)) because it is not a significant regulatory action under Executive Order 12866. I. National Technology Transfer Advancement Act 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 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 EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards. This proposed rule does not involve technical standards. Therefore, EPA did not consider the use of any voluntary consensus standards. List of Subjects in 40 CFR Part 82 Environmental protection. Dated: August 17, 2006. Stephen L. Johnson, Administrator. 40 CFR part 82 is amended as follows: PART 82—PROTECTION OF STRATOSPHERIC OZONE 1. The authority citation for part 82 continues to read as follows: Authority: 42 U.S.C. 7414, 7601, 7671-7671q. 2. Section 82.11 is amended by revising paragraph (a)(3) to read as follows: § 82.11 Exports of Class I controlled substances to Article 5 Parties.

(a)* * *

(3)Phased Reduction Schedule for Article 5 Allowances allocated in § 82.11. For each control period specified in the following table, each person is granted the specified percentage of the baseline Article 5 allowances apportioned under § 82.11. emsp; Control period Class I substances in group I (in percent) Class I substances in group VI (In percent) 2006 50 80 2007 50 80 2008 50 80 2009 50 80 2010 0 80 2011 0 80 2012 0 80 2013 0 80 2014 0 80 2015 0 0 [FR Doc. E6-13951 Filed 8-22-06; 8:45 am] BILLING CODE 6560-50-P DEPARTMENT OF TRANSPORTATION Maritime Administration 46 CFR Part 296 [Docket No. MARAD-2006-23804] RIN 2133-AB68 Maintenance and Repair Reimbursement Pilot Program AGENCY: Maritime Administration, DOT. ACTION: Notice of opening of reply comment period. SUMMARY: The Maritime Administration (MARAD) is amending its regulations governing its pilot program for the reimbursement of costs of qualified maintenance and repair (M&R) of Maritime Security Program

(MSP)vessels performed in United States shipyards. Under Public Law 109-163, the Secretary of Transportation, acting through the Maritime Administrator, is directed to implement regulations that, among other things, replace MARAD's voluntary M&R reimbursement program with a mandatory system. The notice of proposed rulemaking for this action was published in the **Federal Register** on February 8, 2006 (71 FR 6438). Several of the comments received argued that MARAD lacks authority to unilaterally add to existing MSP agreements the added obligation on the part of the MSP contractor to enter into an M&R Pilot Program agreement. In order to have a full airing of this fundamental issue, MARAD is hereby giving notice that we have decided to open a reply comment period for this rulemaking. Reply comments may address the issue highlighted above or any other issue raised in the original set of comments received in this docket. DATES: Reply comments are due September 22, 2006. ADDRESSES: You may submit reply comments [identified by DOT DMS Docket Number MARAD 2006-23804] by any of the following methods: • Web site: *http://dms.dot.gov.* Follow the instructions for submitting comments on the DOT electronic docket site. • Mail: Docket Management Facility; U.S. Department of Transportation, 400 7th St., SW., Nassif Building, Room PL-401, Washington, DC 20590-001. • Hand Delivery: Room PL-401 on the plaza level of the Nassif Building, 400 7th St., SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal Holidays. • Federal eRulemaking Portal: Go to *http://www.regulations.gov.* Follow the online instructions for submitting comments. *Instructions:* All submissions must include the agency name and docket number or Regulatory Identification Number

(RIN)for this rulemaking. Note that all comments received will be posted without change to *http://dms.dot.gov* including any personal information provided. Please see the Privacy Act heading below. *Docket:* For access to the docket to read background documents or comments received, go to *http://dms.dot.gov* at any time or to Room PL-401 on the plaza level of the Nassif Building, 400 7th St., SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal Holidays. Privacy Act Anyone is able to search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the **Federal Register** published on April 11, 2000 (Volume 65, Number 70; Pages 19477-78) or you may visit *http://dms.dot.gov.* Dated: August 17, 2006. By order of the Maritime Administrator. Murray A. Bloom, Acting Secretary, Maritime Administration. [FR Doc. E6-13971 Filed 8-22-06; 8:45 am] BILLING CODE 4910-81-P FEDERAL COMMUNICATIONS COMMISSION 47 CFR Chapter I [CG Docket No. 06-152, EB Docket No. 06-153, IB Docket No. 06-154, ET Docket No. 06-155, WT Docket No. 06-156, WC Docket No. 06-157; FCC 06-115] 2006 Biennial Review of Telecommunications Regulations AGENCY: Federal Communications Commission. ACTION: Notice of regulatory review. SUMMARY: The Federal Communications Commission is conducting its comprehensive 2006 biennial review of telecommunications regulations pursuant to Section 11 of the Communications Act of 1934, as amended. Section 11 requires the Commission to review biennially its regulations “that apply to the operations or activities of any provider of telecommunications service,” and to “determine whether any such regulation is no longer necessary in the public interest as the result of meaningful economic competition between the providers of such service.” The Commission is directed to repeal or modify any such regulations that it finds are no longer in the public interest. DATES: Submit comments by September 1, 2006 and reply comments by September 15, 2006. ADDRESSES: Comments may be filed using the Commission's Electronic Comment Filing System (“ECFS”) or by filing paper copies. Comments filed through ECFS may be sent as an electronic file via the Internet to *http://www.fcc.gov.cgb/ecfs/.* For detailed instructions for submitting comments, see the SUPPLEMENTARY INFORMATION section of this document. FOR FURTHER INFORMATION CONTACT: Michael Jacobs, Consumer and Governmental Affairs Bureau, 202-418-2859, Michael Carowitz, Enforcement Bureau, 202-418-0026, Narda Jones, International Bureau, 202-418-2489, Bruce Romano, Office of Engineering and Technology, 202-418-2124, Peter Corea, Wireless Telecommunications Bureau, 202-418-7931, Carrie-Lee Early, Wireline Competition Bureau, 202-418-2776. SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Public Notice, CG Docket No. 06-152, EB Docket No. 06-153, IB Docket No. 06-154, ET Docket No. 06-155, WT Docket No. 06-156, WC Docket No. 06-157; FCC 06-115, adopted August 3, 2006 and released August 10, 2006. The full text of this document, including the parts of the Commission's rules under review, is available for public inspection and copying during regular business hours at the FCC Reference Information Center, Portals II, 445 12th Street, SW., Room Y-A257, Washington, DC 20554. They may also be purchased from the Commission's duplicating contractor, Best Copy and Printing, Inc., 445 12th Street, SW., Room CY-B402, Washington, DC 20554, telephone 202-488-5300 or 800-378-3160, facsimile 202-488-5563, or via e-mail at *fcc@bcpiweb.com.* 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). The Commission is in the process of conducting its comprehensive 2006 biennial review of telecommunications regulations pursuant to Section 11 of the Communications Act of 1934, as amended. This section requires the Commission

(1)To review biennially its regulations “that apply to the operations or activities of any provider of telecommunications service,” and

(2)to “determine whether any such regulation is no longer necessary in the public interest as the result of meaningful economic competition between the providers of such service.” The Commission is directed to repeal or modify any such regulations that it finds are no longer in the public interest. Pursuant to § 1.430 of the Commission's rules, we seek suggestions from the public as to what rules should be modified or repealed as part of the 2006 biennial review. Submissions should identify with as much specificity as possible the rule or rules that should be modified or repealed, and explain why and how the rule or rules should be modified or repealed. Parties should discuss how their suggested rule changes satisfy the standard of Section 11 as interpreted by the DC Circuit Court in *Cellco Partnership.* As with previous biennial reviews, we expect that FCC staff will prepare reports recommending which sections of the rules should be modified or repealed. In order to facilitate review of all comments, the cover page should

(1)Denote that the comments pertain to the Biennial Review 2006,

(2)indicate the Bureau or Office with jurisdiction over the rules addressed in the comments, and

(3)include the appropriate docket number for that Bureau or Office. Parties wishing to comment on rules within the jurisdiction of more than one Bureau or Office should file a separate pleading with each applicable Bureau or Office. Comments may be filed using the Commission's Electronic Comment Filing System (“ECFS”) or by filing paper copies. *See* Electronic Filing of Documents in Rulemaking Proceedings, 63 FR 24121 (1998). Comments filed through the ECFS may be sent as an electronic file via the Internet to *http://www.fcc.gov/cgb/ecfs/.* Generally, only one copy of an electronic submission must be filed. In completing the transmittal screen, commenters should include their full name, U.S. Postal Service mailing address, and the applicable docket or rulemaking number. Parties may also submit an electronic comment by Internet e-mail. To obtain filing instructions for e-mail comments, commenters should send an e-mail to *ecfs@fcc.gov,* and should include the following words in the body of the message, “get form.” A sample form and directions will be sent in reply. Parties who choose to file by paper must file an original and four copies of each filing. If more than one docket or rulemaking number appears in the caption of this proceeding, commenters must submit two additional copies for each additional docket or rulemaking number. Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail (although we continue to experience delays in receiving U.S. Postal Service mail). The Commission's contractor, Natek, Inc., will receive hand-delivered or messenger-delivered paper filings for the Commission's Secretary at 236 Massachusetts Avenue, NE., Suite 110, Washington, DC 20002. Comments in this proceeding 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 Y-A257, Washington, DC 20554. They may also be purchased from the Commission's duplicating contractor, Best Copy and Printing, Inc., 445 12th Street, SW., Room CY-B402, Washington, DC 20554, telephone 202-488-5300 or 800-378-3160, facsimile 202-488-5563, or via e-mail at *fcc@bcpiweb.com.* 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). This is an exempt proceeding pursuant to § 1.1204(b) of the Commission's rules. *Ex parte* presentations are permitted. Federal Communications Commission. Marlene H. Dortch, Secretary. [FR Doc. E6-13965 Filed 8-22-06; 8:45 am] BILLING CODE 6712-01-P FEDERAL COMMUNICATIONS COMMISSION 47 CFR Part 90 [WT Docket No. 06-142; FCC 06-107] Private Land Mobile Services; Stolen Vehicle Recovery Systems AGENCY: Federal Communications Commission. ACTION: Proposed rule. SUMMARY: This document addresses a petition for rulemaking filed by LoJack Corporation (LoJack) on October 25, 2004. We initiate this rulemaking proceeding to seek comment on potential rule changes that could enhance Stolen Vehicle Recovery Systems

(SVRS)operations. Specifically, we seek comment on proposed rules to permit increased mobile output power, the use of digital emissions, and to relax the limitations on duty cycles. We also seek comment on authorizing mobile transceivers by rule and the merits of broadening the scope to permit the use of frequency 173.075 MHz for operations other than SVRS. The purpose of this document is to develop a record in the rulemaking proceeding that will be utilized to determine what, if any, rule changes would serve the public interest. DATES: Submit comments on or before September 22, 2006 and reply comments are due October 10, 2006. ADDRESSES: You may submit comments, identified by WT Docket No. 06-142; FCC 06-107, by any of the following methods: • Federal eRulemaking Portal: *http://www.regulations.gov.* Follow the instructions for submitting comments. • Federal Communications Commission's Web site: *http://www.fcc.gov/cgb/ecfs/.* Follow the instructions for submitting comments. • People with Disabilities: Contact the FCC to request reasonable accommodations (accessible format documents, sign language interpreters, CART, etc.) by e-mail: *FCC504@fcc.gov* or phone 202-418-0530 or TTY: 202-418-0432. For detailed instructions for submitting comments and additional information on the rulemaking process, see the SUPPLEMENTARY INFORMATION section of this document. FOR FURTHER INFORMATION CONTACT: Rodney Conway, *Rodney.Conway@FCC.gov* , Public Safety and Critical Infrastructure Division, Wireless Telecommunications Bureau,

(202)418-2904, TTY

(202)418-7233. SUPPLEMENTARY INFORMATION: This is a summary of the Federal Communications Commission's *Notice of Proposed Rulemaking* (NPRM), WT Docket No. 06-142, FCC 06-107, adopted July 19, 2006, and released July 24, 2006. The full text of this document is available for inspection and copying during normal business hours in the FCC Reference Center, 445 12th Street, SW., Room CY-A257, Washington, DC 20554. The complete text may be purchased from the Commission's duplicating contractor, Best Copy and Printing, Inc., Portals II, 445 12th Street, Suite CY-B402, Washington, DC 20554. Alternative formats are available for people with disabilities (Braille, large print, electronic files, audio format), by sending an e-mail to *FCC504@fcc.gov* or calling the Consumer and Government Affairs Bureau at

(202)418-0530 (voice),

(202)418-0432 (TTY). 1. LoJack seeks amendment of section 90.20(e)(6) of the rules in order to modify the technical requirements of SVRS operations and broaden the scope of services offered on frequency 173.075 MHz. LoJack submits that many of its requested rule changes are necessary due to the transition of the SVRS frequency (173.075 MHz) from wideband to narrowband operations. 2. *Maximum Base Station ERP and VLU Output Power.* LoJack is seeking increases in the permissible base station ERP from 300 watts to 500 watts, and output power for mobile transceivers from 2.5 watts to 5 watts. It indicates that the increases are needed because the required reduction in the bandwidth of the 173.075 MHz frequency will reduce the range of both the base station and the mobile transceiver ( *i.e.* , VLU). 3. Accordingly, we request comments that offer definitive technical justification for the requested increase in base station ERP. Such technical justification must show the degree, if any, that narrowband operation would degrade the performance of LoJack's system and the calculations underlying the degradation assessment. In addition, commenting parties supporting an increase in base station power will need to explain how such an increase would not unreasonably increase the potential for the base stations to interfere with television Channel 7 analog and digital reception. However, given the lower potential for VLUs to cause interference to TV Channel 7 reception, we seek comment on increasing the maximum VLU power limit from 2.5 watts to 5 watts. 4. *Use of Digitally Modulated Emissions.* LoJack seeks to eliminate the limitation on emissions allowed on the SVRS frequency, so that it can use either analog or digital emissions, as appropriate, in order to take advantage of technological developments that have occurred since the LoJack system was first implemented. 5. We encourage parties to express their views on the use of additional emission designators on the SVRS frequency in their comments in response to this *NPRM* . In particular, commenters should address whether it would be more appropriate to add specific emission designators to the rule, or to simply eliminate any restriction on permissible emission designators. 6. *Limitations on Duty Cycles.* LoJack seeks to eliminate all limitations on SVRS duty cycles currently contained in the Commission's rules. LoJack acknowledges, the Commission decided in 2002 not to grant a similar request to eliminate the duty cycle restrictions, based primarily on a concern over potential interference to TV Channel 7 reception and a perceived need to keep the band accessible to Federal Government users. Therefore, we seek comment on whether the complete elimination of the duty cycle restrictions contained in the Commission's Rules is appropriate under the circumstances presented. 7. We nonetheless believe that some form of relief from the duty cycle restrictions for base station and VLUs is needed in order to help offset system performance difficulties when Lojack operates in a dual wideband and narrowband mode pending its complete transition to a narrowband operation. A potential bottleneck for operation of LoJack's SVRS systems during the transition period appears to be in the operation of the base stations. During that transition period, both narrowband and wideband SVRS systems will be operated from the same base stations. Accordingly, the base stations will be expected to handle twice the volume of transmissions of a single system. Hence, there is a need to increase the amount of time that the base stations may operate. In lieu of eliminating the duty cycle restrictions entirely, we propose to increase the duty cycle for SVRS base stations from one second for every minute, to five seconds for every minute. This would represent a 500 percent increase in the amount of time during which the SVRS base stations may operate. This five-fold increase in the duty cycle for base stations would provide significantly more time during which those stations may operate and, thus, should provide ample flexibility to accommodate operation of both narrowband and wideband SVRS systems without degrading the existing SVRS operations. We also propose to retain the five-second restriction for base stations after the transition period to narrowband operation is complete. We seek comment on our proposal to increase the base station duty cycle. We particularly seek comment with respect to the effect of an increased duty cycle on TV Channel 7 reception. 8. In addition, we propose to increase the duty cycle for narrowband VLUs from 200 milliseconds for every ten seconds to 400 milliseconds for every ten seconds. Correspondingly, we propose to increase the duty cycle for narrowbanded mobile transceivers that are being tracked actively from 200 milliseconds for every second to 400 milliseconds for every second. We believe this supplementary duty cycle for the mobile transceivers will improve the reliability of the SVRS system consistent with avoidance of interference to TV Channel 7 reception. We seek comment on the appropriateness of relaxing the duty cycle limits for mobile units. 9. *Channel 7 Interference Studies.* LoJack also requests that we eliminate the requirement for TV Channel 7 interference studies. LoJack argues that the studies are technically and financially onerous, with no demonstrable benefit. To support this request, LoJack asserts that during the twenty years that it has been required to conduct the studies, there have been no complaints of interference and no findings of perceptible interference to viewers of TV Channel 7. LoJack believes that, given the absence of predicted or reported interference, the requirement for TV Channel 7 interference studies should be eliminated. 10. The Commission adopted the TV Channel 7 study requirement to minimize the potential for SVRS operations to cause interference to the reception of over-the-air TV Channel 7 transmissions. Careful planning is required for the location of SVRS base stations in order to avoid their placement in locations where interference problems are likely to occur. This study requirement provides a means to identify specific locations where interference to over-the-air TV Channel 7 broadcasts is likely to occur from the operation of SVRS base stations. Given that the Commission has repeatedly said that the TV Channel 7 interference study requirement is an important part of “our overall strategy to avoid the occurrence of harmful interference,” it does not appear that LoJack has submitted sufficient information that would justify the removal of the requirement. We invite comment on whether the TV Channel 7 study requirement should be eliminated, and on alternative measures that could be adopted to accomplish the same purpose. 11. *Licensing Mobile Transceivers by Rule.* SVRS operations have been of significant, but necessarily limited, benefit to the public because economic factors have precluded installation of a network of base stations that would provide ubiquitous SVRS coverage nationwide. LoJack proposes to leverage cellular technology to activate VLUs in an effort to overcome this limitation. Employing existing cellular infrastructure could make it possible for law enforcement authorities equipped with vehicle tracking units

(VTUs)to activate, track, and deactivate VLUs in stolen vehicles in areas where there are no police base station licensees. Thus, LoJack requests that SVRS VLUs be “licensed by rule” in order to permit nationwide activation by mobile telephony transmissions. While we believe it is possible that SVRS operations could eventually be provided on a nationwide basis without modification of our current licensing approach, it may be more expeditious and efficient to permit hybrid licensing of SVRS systems by rule. 12. SVRS mobile units are currently authorized under the base station license. In other words, the base station licensee must obtain all required authorizations, including those necessary to operate mobiles on the system. However, we recognize that there is precedent for authorizing radio operation by rule instead of by individual licensing. 13. We invite comment on whether the public interest would be served by licensing SVRS VLUs by rule. Here, licensing SVRS mobile transceivers by rule seems practicable because it would permit rapid deployment of a system that could offer truly nationwide coverage by allowing the activation and deactivation of the units via the existing cellular telephone infrastructure. This would appear to greatly lessen the need to construct additional base stations to increase the coverage area of existing SVRS systems. We also note that the Commission previously adopted licensing by rule in the context of Radio Control Service, the operation of which is similar SVRS, in that both involve transmitting non-voice communications over short distances. Would licensing mobile units by rule minimize regulatory burdens on both licensees and the Commission and, thus, facilitate deployment of SVRS operations? What need, if any, would be served by continuing to license SVRS mobiles under base station authorizations? Interested parties also should address whether a VLU notification or registration procedure would serve a useful administrative purpose. Is such a procedure needed to provide a reliable indication of channel occupancy, or should the Commission utilize other regulatory approaches for spectrum management purposes ( *e.g.* , equipment certification and/or operating rules)? Would some other method be preferable over notifying the Commission directly of VLU usage? 14. We also believe that compliance and related issues should be considered. Under our current rules, the base station licensee, normally the police department, ultimately is responsible for the proper operation of the SVRS system: the base stations, VTUs, and VLUs. Under an authorization-by-rule scheme, who will be responsible for ensuring compliant conduct of the mobile operations? Where there is no individual licensing, how will the Commission enforce its rules if a user of an SVRS mobile unit violates our regulations, as in the case of a malfunctioning mobile unit that causes interference? As noted above, SVRS licensees operate on a co-primary basis with Federal Government operations. Consequently, base stations must be coordinated with the Federal Government prior to licensing. Because the Federal Government is thus aware of what geographic areas will have SVRS operations on frequency 173.075 MHz, Federal Government users can plan their operations so as not to cause interference to, or incur interference from, SVRS transmissions. We do not propose to change our processes regarding coordination of base stations. If, however, VLUs can operate in areas without base stations under a licensing-by-rule scheme, such coordination is impracticable, and it is not clear how Federal Government users could avoid causing or incurring interference on this shared frequency. It therefore may be appropriate for licensed-by-rule operations to be authorized on a secondary basis to Federal Government operations. It also may be appropriate to license by rule only narrowband VLUs, in order to reduce the potential for such interference. We invite comment on all of these issues. 15. *The Scope of Section 90.20(e)(6) Operations.* Part 90 use of frequency 173.075 MHz is limited to the recovery of stolen vehicles; “general tracking and monitoring” has always been prohibited. LoJack seeks to permit additional services related to public safety, health and welfare, and national security, such as:

(1)Tracking stolen articles, such as cargo containers, automated teller machines, or hazardous material;

(2)addressing user emergencies by providing automatic collision notification, medical emergency or vehicle fire notification, and carjacking alerts;

(3)tracking missing or wanted persons;

(4)locating people at risk (such as Alzheimer's patients or autistic children), or of interest to law enforcement officials (such as sex offenders, parolees, and individuals under house detention if established boundaries are violated); and

(5)location on demand services authorized by public safety agencies. 16. We note LoJack's argument that expanding the permissible use of frequency 173.075 MHz beyond the recovery of stolen vehicles could serve the public interest. A principal purpose of § 90.20(e)(6) of the Commission's rules is to aid law enforcement, and it appears that SVRS operations can be put to additional uses in furtherance of that goal. We are concerned, however, by the breadth and vagueness of LoJack's proposed expansion of uses, as overuse of the frequency could result in spectrum congestion and interference to Federal Government operations sharing the frequency, as well as to television Channel 7 analog and digital reception. We seek comment on what particular additional uses of frequency 173.075 MHz should be authorized. Commenters should explain how such purposes aid law enforcement, and why such proposes cannot or should not be served via other means. I. Procedural Matters A. Ex Parte Rules—Permit-but-Disclose Proceeding 17. This is a permit-but-disclose notice and comment rulemaking proceeding. *Ex parte* presentations are permitted, except during the Sunshine Agenda period, provided they are disclosed as provided in the Commission's Rules. B. Comment Dates 18. Pursuant to §§ 1.415 and 1.419 of the Commission's rules, interested parties may file comments on or before September 22, 2006, and reply comments are due October 10, 2006. 19. Commenters may file comments electronically using the Commission's Electronic Comment Filing System (ECFS), the Federal Government's eRulemaking Portal, or by filing paper copies. Commenters filing through the ECFS can be sent as an electronic file via the Internet to *http://www.fcc.gov/e-file/ecfs.html.* If multiple docket or rulemaking numbers appear in the caption of this proceeding, filers must transmit one electronic copy for each docket or rulemaking number referenced in the caption. In completing the transmittal screen, commenters should include their full name, U.S. Postal Service mailing address, and the applicable docket or rulemaking number. Commenters may also submit an electronic comment by Internet e-mail. To get filing instructions for e-mail comments, commenters should send an e-mail to *ecfs@fcc.gov* , and should include the following words in the body of the message, “get form.” Commenters will receive a sample form and directions in reply. Commenters filing through the Federal eRulemaking Portal *http://www.regulations.gov* , should follow the instructions provided on the Web site for submitting comments. 20. Commenters who chose to file paper comments must file an original and four copies of each comment. If more than one docket or rulemaking number appears in the caption of this proceeding, filers must submit two additional copies for each additional docket or rulemaking number. All filings must be sent to the Commission's Secretary, Office of the Secretary, Federal Communications Commission, 445 12th Street, SW., Room TW-A325, Washington, DC 20554. 21. Commenters may send filings by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail. The Commission's contractor will receive hand-delivered or messenger-delivered paper filings for the Commission's Secretary at 236 Massachusetts Avenue, NE., Suite 110, Washington, DC 20002. The filing hours at this location are 8 a.m. to 7 p.m. Commenters must bind all hand deliveries together with rubber bands or fasteners and must dispose of any envelopes before entering the building. This facility is the only location where the Commission's Secretary will accept hand-delivered or messenger-delivered paper filings. Commenters must send commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) to 9300 East Hampton Drive, Capitol Heights, MD 20743. Commenters should address U.S. Postal Service first-class mail, Express Mail, and Priority Mail to 445 12th Street, SW., Washington, DC 20554. 22. Interested parties may view documents filed in this proceeding on the Commission's Electronic Comment Filing System

(ECFS)using the following steps:

(1)Access ECFS at *http://www.fcc.gov/cgb/ecfs.*

(2)In the introductory screen, click on “Search for Filed Comments.”

(3)In the “Proceeding” box, enter the *numerals* in the docket number.

(4)Click on the box marked “Retrieve Document List”. A link to each document is provided in the document list. Filings and comments are also available for public inspection and copying during regular business hours at the FCC Reference Information Center, 445 12th Street, SW., Room CY-A257, Washington, DC 20554. Filings and comments also may 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 via e-mail *http://www.bcpiweb.com.* C. Paperwork Reduction Act 23. This document does not contain proposed information collection requirements subject to the Paperwork Reduction Act of 1995, Public Law 104-13. In addition, therefore, it does not contain any proposed 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). II. Initial Regulatory Flexibility Analysis 24. As required by the Regulatory Flexibility Act (RFA), the Commission has prepared this present Initial Regulatory Flexibility Analysis

(IRFA)of the possible significant economic impact on small entities by the policies and rules proposed in the *Notice of Proposed Rulemaking.* Written public comments are requested on this IRFA. Comments must be identified as responses to the IRFA and must be filed by the deadlines for comments on the Notice of Proposed Rulemaking provided in the item. The Commission will send a copy of the *Notice of Proposed Rulemaking* , including this IRFA, to the Chief Counsel for Advocacy of the Small Business Administration. In addition, the *Notice of Proposed Rulemaking* and IRFA (or summaries thereof) will be published in the **Federal Register** . Need for, and Objectives of, the Proposed Rules 25. The purpose of the *NPRM* is to determine whether it would be in the public interest, convenience and necessity to amend our rules governing the use of frequency 173.075 MHz for stolen vehicle recovery systems (SVRS). In the *NPRM* , we propose revising § 90.20(e)(6) of the Commission's rules to permit increased mobile power, analog and digital emissions, in addition to the F1D and F2D modulation schemes already permitted by the Commission, and relaxing the limitations on duty cycles. We also propose authorizing mobile transceivers by rule rather than by the current practice of licensing mobiles with individual base station authorizations. Finally, we inquire into the merits of broadening the scope of § 90.20(e)(6) to permit the use of frequency 173.075 MHz for other than SVRS operations. These rule changes could enhance SVRS operations, assist SVRS facilities in their migration to narrowband technology, and aid in the expeditious and efficient implementation of SVRS operations, thus serving the public interest. Legal Basis 26. Authority for issuance of this *NPRM* is contained in sections 4(i), 303(r), and 332(a)(2) of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 303(r), 332(a)(2). Description and Estimate of the Number of Small Entities to Which the Proposed Rules Will Apply 27. The RFA directs agencies to provide a description of and, where feasible, an estimate of the number of small entities that may be affected by the proposed rules, if adopted. Under the RFA, small entities may include small organizations, small businesses, and small governmental jurisdictions. The RFA generally defines “small business” as having the same meaning as “small business concern” under the Small Business Act. A small business concern is one that:

(1)Is independently owned and operated;

(2)is not dominant in its field of operation; and

(3)satisfies any additional criteria established by the Small Business Administration (SBA). A small organization is generally “any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.” 28. Nationwide, as of 1992, there were approximately 275,801 small organizations. “Small governmental jurisdiction” generally means “governments of cities, counties, towns, townships, villages, school districts, or special districts, with a population of less than 50,000.” As of 1992, there were approximately 85,006 such jurisdictions in the United States. This number includes 38,978 counties, cities, and towns; of these, 37,566, or ninety-six percent, have populations of fewer than 50,000. The Census Bureau estimates that this ratio is approximately accurate for all governmental entities. Thus, of the 85,006 governmental entities, we estimate that 81,600 (ninety-one percent) are small entities. 29. The proposed rule amendments may affect users of Public Safety Radio Pool services and private radio licensees that are regulated under part 90 of the Commission's rules, and Federal Governmental entities. The proposals may also provide marketing opportunities for radio manufacturers, some of which may be small businesses. Beyond this we are unable to quantify the potential effects on small entities. We, therefore, invite specific comments on this point by interested parties. Public Safety Radio Services and Governmental entities 30. As a general matter, Public Safety Radio Services include police, fire, local government, forestry conservation, highway maintenance, and emergency medical services. Neither the Commission nor the SBA has developed a definition of small businesses directed specifically toward public service licensees. Therefore, the applicable definition of small business is the definition under the SBA rules applicable to Cellular and other Wireless Telecommunications. This provides that a small business is a radiotelephone company employing no more than 1,500 persons. According to the Bureau of the Census, only twelve radiotelephone firms from a total of 1,178 such firms that operated during 1992 had 1,000 or more employees. Therefore, even if all twelve of these firms were public safety licensees, nearly all would be small businesses under the SBA's definition, if independently owned and operated. Equipment Manufacturers 31. We anticipate that at least six radio equipment manufacturers could be affected by our decision in this proceeding. According to the SBA's regulations, a radio and television broadcasting and wireless communications equipment manufacturing businesses must have 750 or fewer employees in order to qualify as a small business concern. Census Bureau data indicate that there are 858 U.S. firms that manufacture radio and television broadcasting and communications equipment, and that 778 of these firms have fewer than 750 employees and would therefore be classified as small entities. We do not have information that indicates how many of the six radio equipment manufacturers associated with this proceeding are among these 778 firms. Motorola, however, is a major, nationwide radio equipment manufacturer, and thus, we conclude that it would not qualify as a small business. Description of Projected Reporting, Recordkeeping, and Other Compliance Requirements 32. The *NPRM* neither proposes nor anticipates any additional reporting, recordkeeping or other compliance measures. Steps Taken To Minimize Significant Economic Impact on Small Entities, and Significant Alternatives Considered 33. The RFA requires an agency to describe any significant alternatives that it has considered in reaching its proposed approach, which may include the following four alternatives (among others):

(1)The establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities;

(2)the clarification, consolidation, or simplification of compliance or reporting requirements under the rule for small entities;

(3)the use of performance, rather than design, standards; and

(4)an exemption from coverage of the rule, or any part thereof, for small entities. 34. The *NPRM* solicits comment on various proposals set forth herein. For example, the Commission seeks comment on its proposal to authorize use of frequency 173.075 MHz by rule rather than by individual licensing. These proposals are made to reduce the regulatory burden for SVRS licensees, most of whom are small police entities. Federal Rules That May Duplicate, Overlap, or Conflict With the Proposed Rules 35. None. III. Ordering Clauses 36. Pursuant to sections 4(i), 303(f) and (r), and 332 of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 303(f), 303(r), 332, this *Notice of Proposed Rulemaking* is adopted. 37. It is further ordered that the Commission's Consumer and Government Affairs Bureau, Reference Information Center, shall send a copy of the *Notice of Proposed Rulemaking* including the Initial Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration. List of Subjects in 47 CFR Part 90 Communications equipment, Radio. Federal Communications Commission. William F. Caton, Deputy Secretary. Proposed Rules For the reasons discussed in the preamble, the Federal Communications Commission proposes to amend 47 CFR part 90 as follows: PART 90—PRIVATE LAND MOBILE RADIO SERVICES 1. The authority citation for part 90 continues to read as follows: Authority: Sections 4(i), 11, 303(g), 303(r) and 332(c)(7) of the Communications Act of 1934 as amended, 47 U.S.C. 154(i), 161, 303(g), 303(r), 332(c)(7). 2. Section 90.20 is amended by revising paragraph (e)(6) to read as follows: § 90.20 Public Safety Pool.

(e)* * *

(6)The frequency 173.075 MHz is available for stolen vehicle recovery systems on a shared basis with the Federal Government.

(i)Base station transmitters are limited to 300 watts ERP, regardless of the maximum authorized bandwidth.

(ii)Mobile transmitters operating on this frequency with emissions authorized in a maximum bandwidth of 12.5 kHz are limited to 5.0 watts power output. Mobile transmitters operating on this frequency with emissions authorized in a maximum bandwidth of 20 kHz are limited to 2.5 watts power output.

(iii)Any modulation scheme may be used.

(iv)Transmissions from mobiles authorized to operate with a maximum bandwidth of 20 kHz shall be limited to 200 milliseconds for every 10 seconds, except when a vehicle is being tracked actively transmissions are limited to 200 milliseconds for every second; transmissions for mobiles authorized to operate with a maximum bandwidth of 12.5 kHz shall be limited to 400 milliseconds for every 10 seconds, except when a vehicle is being tracked actively transmissions are limited to 400 milliseconds for every second. Alternatively, transmissions from mobiles regardless of their maximum emission bandwidth shall be limited to 1800 milliseconds for every 300 seconds with a maximum of six such messages in any 30 minute period.

(v)Transmissions from base stations shall be limited to a total rate of five seconds every minute regardless of the maximum authorized bandwidth.

(vi)Applications for base stations operating on this frequency shall require coordination with the Federal Government. Applicants shall perform an analysis for each base station that is located within 169 km (105 miles) of a TV Channel 7 transmitter of potential interference to TV Channel 7 viewers. Such base stations will be authorized if the applicant has limited the interference contour to include fewer than 100 residences or if the applicant:

(A)Shows that the proposed site is the only suitable location (which, at the application stage, requires a showing that the proposed site is especially well-suited to provide the proposed service);

(B)Develops a plan to control any interference caused to TV reception from operations; and

(C)Agrees to make such adjustments in the TV receivers affected as may be necessary to eliminate interference caused by its operations. The licensee must eliminate any interference caused by its operation to TV Channel 7 reception within 30 days after notification in writing by the Commission. If this interference is not removed within this 30-day period, operation of the base station must be discontinued. The licensee is expected to help resolve all complaints of interference. [FR Doc. E6-13743 Filed 8-22-06; 8:45 am] BILLING CODE 6712-01-P DEPARTMENT OF DEFENSE GENERAL SERVICES ADMINISTRATION NATIONAL AERONAUTICS AND SPACE ADMINISTRATION 48 CFR Part 4 [FAR Case 2005-017; Docket 2006-0020; Sequence 6] RIN 9000-AK53 Federal Acquisition Regulation; FAR Case 2005-017, Requirement to Purchase Approved Authentication Products and Services AGENCIES: Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA). ACTION: Proposed rule. SUMMARY: The Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council (Councils) are proposing to amend the Federal Acquisition Regulation

(FAR)to address the acquisition of products and services for personal identity verification that comply with requirements in Homeland Security Presidential Directive

(HSPD)12, “Policy for a Common Identification Standard for Federal Employees and Contractors,” and Federal Information Processing Standards Publication (FIPS PUB) 201, “Personal Identity Verification of Federal Employees and Contractors”. DATES: Interested parties should submit written comments to the FAR Secretariat on or before October 23, 2006 to be considered in the formulation of a final rule. ADDRESSES: Submit comments identified by FAR case 2005-017 by any of the following methods: • Federal eRulemaking Portal: *http://www.regulations.gov* . Search for this document at the “Federal Acquisition Regulation” agency and review the “Document Title” column; click on the Document ID number. Click on “comments”. You may also search for any document using the “Advanced search/document search” tab, selecting from the agency field “Federal Acquisition Regulation”, and typing the FAR case number in the keyword field. • Fax: 202-501-4067. • Mail: General Services Administration, Regulatory Secretariat (VIR), 1800 F Street, NW, Room 4035, ATTN: Laurieann Duarte, Washington, DC 20405. *Instructions* : Please submit comments only and cite FAR case 2005-017 in all correspondence related to this case. All comments received will be posted without change to *http://www.regulations.gov* , including any personal and/or business confidential information provided. FOR FURTHER INFORMATION CONTACT: For clarification of content, contact Mr. Michael Jackson, Procurement Analyst, at

(202)208-4949. For information pertaining to status or publication schedules, contact the FAR Secretariat at

(202)501-4755. Please cite FAR case 2005-017. SUPPLEMENTARY INFORMATION: A. Background Increasingly, contractors are required to have physical access to federally controlled facilities and information systems in the performance of Government contracts. On August 27, 2004, in response to the general threat of unauthorized access to physical facilities and information systems, the President issued Homeland Security Presidential Directive

(HSPD)12. The primary objectives of HSPD-12 are to establish a process to enhance security, increase Government efficiency, reduce identity fraud, and protect personal privacy by establishing a mandatory, Governmentwide standard for secure and reliable forms of identification issued by the Federal Government to its employees and contractors. In accordance with HSPD-12, the Secretary of Commerce issued on February 25, 2005, Federal Information Processing Standards Publication (FIPS PUB) 201, Personal Identity Verification of Federal Employees and Contractors, to establish a Governmentwide standard for secure and reliable forms of identification for Federal and contractor employees. FIPS PUB 201 is available at *http://www.smartcardalliance.org/pdf/industry_info/FIPS_201_022505.pdf* . The associated Office of Management and Budget

(OMB)guidance, M-05-24, dated August 5, 2005, can be found at *http://www.whitehouse.gov/omb/memoranda/fy2005/m05-24.pdf* . In accordance with requirements in HSPD-12 and OMB Memorandum M-05-24, agencies must—

(a)Issue and require the use of identity credentials that are compliant with the technical requirements of FIPS PUB 201 and associated guidance issued by the National Institute for Standards and Technology in the areas of personal authentication, access controls and card management; and

(b)Agencies may acquire authentication products and services that are approved to be compliant with the FIPS PUB 201 through Special Item Number

(SIN)132-62, HSPD-12 Product and Service Components, made available by GSA under Federal Supply Schedule 70. GSA is developing an informational Web site (idmanagement.gov) that will provide a one-stop shop for citizens, businesses, and government entities interested in identity management activities. The site will provide information on HSPD-12 and eAuthentication acquisition vehicles and processes. This proposed rule revises Subpart 4.13 by adding two new sections on the scope of the subpart, and the acquisition of approved products and services; the existing sections are revised and renumbered. This is not a significant regulatory action and, therefore, was not subject to review under Section 6(b) of Executive Order 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804. B. Regulatory Flexibility Act The changes may have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, *et seq.* HSPD-12 requires agencies to procure PIV products and services that comply with the FIPS PUB 201 standard. NIST has established the NIST Personal Identity Verification Program (NPIVP) ( *http://csrc.nist.gov/npivp* ) to validate Personal Identity Verification

(PIV)components and sub-systems required by Federal Information Processing Standards Publication (FIPS PUB) 201 that meet the NPIVP requirements. The validation tests are performed by third party laboratories that are accredited through NIST's National Voluntary Laboratory Accreditation Program. Vendors are required to obtain validation testing and certification from an accredited laboratory. The testing is performed on a fee basis. The number and extent of testing will depend on the nature of the product or service being tested. The test protocols are still under development. The impact on small entities will, therefore, be variable depending on the nature of the product/service being validated. These standards and testing policies may affect small business concerns in terms of their ability to compete and win Federal contracts. The extent of the effect and impact on small business concerns is unknown and will vary by product and service due to the wide variances among product and service functionality and design. An Initial Regulatory Flexibility Analysis

(IRFA)has been prepared. The analysis is summarized as follows: *1. Description of the reasons why the action is being taken.* This proposed rule amends the Federal Acquisition Regulation to implement the provisions of Homeland Security Presidential Directive 12 (HSPD-12) and Federal Information Processing Standards Publication Number 201 (FIPS PUB 201). *2. Succinct statement of the objectives of, and legal basis for, the rule.* The rule implements the provisions of HSPD-12 that require agencies to purchase PIV products and services that are approved to comply with the FIPS PUB 201 standard and that are interoperable among agencies. *3. Description of and, where feasible, estimate of the number of small entities to which the rule will apply.* The FAR rule requires that agencies acquire PIV products and services that comply with the FIPS PUB 201 standard. The impact on small entities will, therefore, vary depending on the approval process for vendor products and services. *4. Description of projected reporting, recordkeeping, and other compliance requirements of the rule, including an estimate of the classes of small entities which will be subject to the requirement and the type of professional skills necessary for preparation of the report or record.* The rule does not impose any new reporting, recordkeeping, or compliance requirements. *5. Identification, to the extent practicable, of all relevant Federal rules which may duplicate, overlap, or conflict with the rule.* The rule does not duplicate, overlap, or conflict with any other Federal rules. *6. Description of any significant alternatives to the rule which accomplish the stated objectives of applicable statutes and which minimize any significant economic impact of the rule on small entities.* There are no practical alternatives that will accomplish the objectives of HSPD-12. The FAR Secretariat has submitted a copy of the IRFA to the Chief Counsel for Advocacy of the Small Business Administration. A copy of the IRFA may be obtained from the FAR Secretariat. The Councils will consider comments from small entities concerning the affected FAR Part 4 in accordance with 5 U.S.C. 610. Comments must be submitted separately and should cite 5 U.S.C 601, *et seq.* (FAR case 2005-017), in correspondence. C. Paperwork Reduction Act The Paperwork Reduction Act does not apply because the proposed changes to the FAR do not impose information collection requirements that require the approval of the Office of Management and Budget under 44 U.S.C. 3501, *et seq.* List of Subjects in 48 CFR Part 4 Government procurement. Dated: August 17, 2006. Ralph De Stefano, Director, Contract Policy Division. Therefore, DoD, GSA, and NASA propose amending 48 CFR part 4 as set forth below: PART 4—ADMINISTRATIVE MATTERS 1. The authority citation for 48 CFR part 4 continues to read as follows: Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 42 U.S.C. 2473(c). 2. Revise Subpart 4.13 to read as follows: Subpart 4.13—Personal Identity Verification *Sec.* 4.1300 Scope of subpart. 4.1301 Contractual implementation of personal identity verification requirement. 4.1302 Acquisition of approved products and services for personal identity verification. 4.1303 Contract clause. 4.1300 Scope of subpart. This subpart provides policy and procedures associated with Personal Identity Verification as required by—

(a)Federal Information Processing Standards Publication (FIPS PUB) Number 201, “Personal Identity Verification of Federal Employees and Contractors”; and

(b)Office of Management and Budget

(OMB)guidance M-05-24, dated August 5, 2005, “Implementation of Homeland Security Presidential Directive

(HSPD)12—Policy for a Common Identification Standard for Federal Employees and Contractors”. 4.1301 Contractual implementation of personal identity verification requirement.

(a)Agencies must follow FIPS PUB 201 and the associated OMB implementation guidance for personal identity verification for all affected contractor and subcontractor personnel when contract performance requires contractors to have physical access to a federally-controlled facility or access to a Federal information system.

(b)Agencies must include their implementation of FIPS PUB 201 and OMB guidance M-05-24, in solicitations and contracts that require the contractor to have physical access to a federally-controlled facility or access to a Federal information system.

(c)Agencies must designate an official responsible for verifying contractor employee personal identity. 4.1302 Acquisition of approved products and services for personal identity verification.

(a)In order to comply with FIPS PUB 201, agencies must only purchase approved personal identity verification products and services. Agencies may acquire the approved products and services from the GSA, Federal Supply Schedule 70, Special Item Number

(SIN)132-62, HSPD-12 Product and Service Components.

(b)When acquiring personal identity verification products and services not using the process in paragraph

(a)of this section, agencies must ensure that the applicable products and services are approved as compliant with FIPS PUB 201 including—

(1)Certifying the products and services procured meet all applicable Federal standards and requirements;

(2)Ensuring interoperability and conformance to applicable Federal standards for the lifecycle of the components; and

(3)Maintaining a written plan for ensuring ongoing conformance to applicable Federal standards for the lifecycle of the components. 4.1303 Contract clause. The Contracting Officer shall insert the clause at 52.204-9, Personal Identity Verification of Contractor Personnel, in solicitations and contracts when contract performance requires contractors to have physical access to a federally-controlled facility or access to a federally-controlled information system. [FR Doc. 06-7088 Filed 8-22-06; 8:45 am]

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