Rules and Regulations. Final rules

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BILLING CODE 9111-14-P SOCIAL SECURITY ADMINISTRATION 20 CFR Parts 404, 408 and 416 RIN 0960-AG09 Representative Payment Policies and Administrative Procedure for Imposing Penalties for False or Misleading Statements or Withholding of Information AGENCY: Social Security Administration (SSA). ACTION: Final rules. SUMMARY: We are amending our regulations on representative payment and on the administrative procedure for imposing penalties for false or misleading statements or withholding of information to reflect and implement certain provisions of the Social Security Protection Act of 2004 (SSPA).

The SSPA amends representative payment policies by providing additional safeguards for Social Security, Special Veterans and Supplemental Security Income beneficiaries served by representative payees. These changes include additional disqualifying factors for representative payee applicants, additional requirements for non-governmental fee-for-service payees, authority to redirect delivery of benefit payments when a representative payee fails to provide required accountings, and authority to treat misused benefits as an overpayment to the representative payee.

In addition, we are amending our rules to explain financial requirements for representative payees, and we have made minor clarifying plain language changes. The SSPA also allows us to impose a penalty on any person who knowingly withholds information that is material for use in determining any right to, or the amount of, monthly benefits under titles II or XVI. The penalty is nonpayment for a specified number of months of benefits under title II that would otherwise be payable and ineligibility for the same period of time for payments under title XVI (including State supplementary payments).

DATES: These final rules are effective November 17, 2006. *Applicability Date:* Sections 404.459 and 416.1340, reflecting and implementing section 201(a)(2) of Public Law 108-203 relating to the withholding of information from us, or failure to disclose information to us, will be applicable upon implementation of the centralized computer file described in section 202 of Public Law 108-203. This is because Congress provided that section 201 of the SSPA would apply only with respect to violations committed after that centralized computer file was implemented.

If you want information regarding the applicability date of this provision, call or write the SSA contact person. We will publish a document announcing the applicability date in the **Federal Register** when the centralized computer file has been implemented. The remainder of §§ 404.459 and 416.1340 currently in effect is unaffected by this delay. FOR FURTHER INFORMATION CONTACT: Betsy M. Byrd, Social Insurance Specialist, Social Security Administration, Office of Income Security Programs, 252 Altmeyer Building, 6401 Security Boulevard, Baltimore, MD 21235-6401,

(410)965-7981 or TTY

(410)966-5609 for information about this **Federal Register** document. For information on eligibility or filing for benefits, call our national toll-free number, 1-800-772-1213 or TTY 1-800-325-0778, or visit our Internet site, Social Security Online, at *http://www.socialsecurity.gov.* SUPPLEMENTARY INFORMATION: Electronic Version The electronic file of this document is available on the date of publication in the **Federal Register** at *http://www.gpoaccess.gov/fr/index.html.* Background Public Law 108-203, the SSPA, enacted March 2, 2004, required a number of changes to our representative payee policy and procedures. A representative payee is the person, agency, organization, or institution selected to receive and manage benefits on behalf of an incapable beneficiary. This includes a parent who is receiving benefits on behalf of his or her minor child. The SSPA also changes the rules for imposing penalties for false or misleading statements or for withholding information. Section 102 of the SSPA requires non-governmental fee-for-service organizational representative payees to be both bonded and licensed, provided that licensing is available in the State. Section 103 of the SSPA expands the scope of disqualification to prohibit an individual from serving as a representative payee if he or she:

(1)Has been convicted of any offense resulting in imprisonment for more than 1 year, unless we determine that an exception to this prohibition is appropriate; or

(2)is fleeing to avoid prosecution, or custody or confinement after conviction of a crime, or an attempt to commit a crime, that is a felony. Section 104 of the SSPA requires fee-for-service representative payees to forfeit their fees for any months during which they misuse all or part of any beneficiary's benefits. Section 105 of the SSPA makes non-governmental representative payees liable for any benefits they misuse and requires us to treat such misused benefits as overpayments to the representative payees, subject to overpayment recovery authorities. Section 106 of the SSPA authorizes us to require a representative payee to receive benefits in person at a Social Security field office or a United States Government facility that we designate if the payee fails to provide an annual accounting of benefits report or other requested information. In addition to the changes required by Public Law 108-203, we are clarifying financial requirements for representative payees. Our current regulations specify that the interest earned on conserved funds belongs to the beneficiary. However, the regulations do not specifically address interest earned on current benefits or how current benefits should be held. We are now specifying that a representative payee must keep any payments received for the beneficiary separate from the representative payee's own funds and ensure that the beneficiary's ownership is shown, unless the representative payee is the spouse or parent of the beneficiary and lives in the same household with the beneficiary. We also provide for an exception to this requirement for State or local government agencies when we determine that their accounting structure sufficiently protects the beneficiaries' interest in the benefits (i.e., accounting structure clearly identifies what funds belong to the beneficiary). We are further specifying that the payee must treat any interest earned on current benefits as the beneficiary's own property. In addition, we are clarifying that the payee is responsible for making records available for review if requested by us. Section 201(a)(2) of the SSPA amended section 1129A of the Social Security Act (the Act) to help us prevent and respond to fraud and abuse in our programs and operations. Prior to its amendment by the SSPA, section 1129A allowed us to impose a penalty against any person who makes, or causes to be made, a statement or representation of a material fact that the person knows or should know is false or misleading or that omits a material fact, or that the person makes with a knowing disregard for the truth. The statement must have been made for use in determining eligibility for, or the amount of, benefits under titles II or XVI. The sanction period of nonpayment lasts for 6 consecutive months for the first occurrence, 12 consecutive months for the second occurrence, and 24 consecutive months for each subsequent occurrence for benefits under title II that would otherwise be payable to the person. For payments under title XVI (including State supplementary payments that we make under § 416.2005), the penalty results in ineligibility for the same periods of time. Section 201(a)(2) amended section 1129A of the Act to also allow us to impose this penalty against any person who withholds disclosure of information that is material for use in determining any right to, or the amount of, monthly benefits under titles II or XVI if the person knows, or should know, that the withholding of such disclosure is misleading. Prior to the enactment of section 201(a)(2), in order for a penalty to be imposed, the law required an affirmative act on the part of the individual who made the statement that omitted a material fact. This new penalty under section 1129A of the Act applies only for violations occurring after the date on which we implement the centralized computer file described in section 202 of the SSPA to record the date of submission of information by a disabled beneficiary (or representative) regarding a change in the beneficiary's work or earnings status. As noted above in the Applicability Date section of the preamble, we will publish a document announcing the applicability date in the **Federal Register** when the centralized computer file has been implemented. Explanation of Changes on Representative Payment Because our regulations for representative payment under the title VIII program cross-refer to the appropriate material in our title II representative payment rules, most of the changes to our title II representative payment regulations also apply to title VIII. We have shown a specific rule for title VIII only when a cross-reference to the title II rules would not be sufficient. We are making the following changes to our representative payment regulations: 1. We are amending §§ 404.2022 and 416.622 to explain that a person who is convicted of an offense resulting in imprisonment for more than 1 year may not serve as a representative payee. These sections also explain that we may make an exception to this rule if the nature of the conviction poses no risk to the beneficiary and selection of the applicant is in the beneficiary's best interest. 2. We are amending §§ 404.2035 and 416.635 to explain that a representative payee must keep any payments received for the beneficiary separate from the payee's own funds and ensure the beneficiary's ownership is shown, unless the payee is the spouse or parent of the beneficiary and lives in the same household with the beneficiary. We will provide for an exception to this requirement for State or local government agencies that use a different accounting structure. We would grant such an exception to a State or local government agency if we determine that its accounting structure sufficiently protects the beneficiaries' interest in the benefits. These sections also explain that the payee must treat any interest earned on current benefits as the beneficiary's own property. 3. We are amending §§ 404.2035 and 416.635 to require representative payees to make available to us their records supporting their written accounting reports. We believe those records are essential to verify the written reports. 4. We are amending §§ 404.2040a and 416.640a to require fee-for-service non-governmental community-based nonprofit organizational representative payees to be both bonded and licensed (provided that licensing is available in the State). The bond must be of a sufficient amount to repay any funds (current Social Security benefits and Supplemental Security Income payments, plus any conserved funds and interest) lost by the beneficiaries in the event of misuse or theft, and the license must be appropriate under the laws of the State for the type of services the organization provides. These bonding and licensing requirements do not apply to the title VIII program. In addition, these sections explain that a fee-for-service representative payee must forfeit its fee for the months during which it misused benefits. 5. We are amending §§ 404.2041 and 416.641 to explain that a non-governmental representative payee will be liable for any benefits it misuses and that we will treat the misused benefits as an overpayment to the representative payee, subject to overpayment recovery authorities. 6. We are amending §§ 404.2065, 408.665 and 416.665 to explain that we may require a representative payee to receive benefits in person at a local Social Security field office or a United States Government facility that we designate if the payee fails to provide an annual accounting of benefits or other requested information. Explanation of Changes on Administrative Procedures for Imposing Administrative Penalties We are amending §§ 404.459 and 416.1340 of our regulations by revising the heading and paragraphs

(a)and

(e)of each section to reflect that, as a result of section 201 of the SSPA, an individual will be subject to the penalty if he or she withholds information that is material for use in determining any right to, or the amount of, monthly benefits under title II or XVI if the person knows, or should know, that the withholding of the information is misleading. Public Comments On October 17, 2005, we published proposed rules in the **Federal Register** at 70 FR 60251 and provided a 60-day comment period. We received comments from four organizations and one individual. We carefully considered all of the comments in publishing these final rules. Because some of the comments received were quite detailed, we have condensed, summarized and paraphrased them in the following discussion. However, we have tried to present all views adequately and to carefully address all of the issues raised by the commenters that are within the scope of the proposed rules. We have not addressed in this preamble comments that are outside the scope of this rulemaking proceeding. *Comment* : One commenter stated that exempting spouses and parents from the obligations to keep the beneficiary's funds separate from their own funds and to show the beneficiary's ownership of his or her funds will make it more difficult for us to track and account for the beneficiary's funds and make it easier for a spouse or parent to misuse the beneficiary's funds and not be caught. *Response:* We do not agree with this comment. We still require custodial parents or spouses to account annually for the funds received on behalf of a child or spouse. We afford this exception to parents or spouses living in the same households as their children or spouses in recognition of the inherent familial bonds and in support of family relationships. This exemption allows families the flexibility to manage their own finances without unwarranted, unnecessary, or excessive Federal Government intrusion. *Comment:* One commenter suggested that we create a discretionary exception to the 10-day period allowed for payees to respond to notification that they are no longer qualified to serve because they have an unsatisfied felony warrant. The commenter stated that we should allow for a longer time period for the payee to dispute the information in order to ensure that the beneficiary does not lose an otherwise good payee. *Response:* On December 6, 2005, the U.S. Court of Appeals for the Second Circuit issued a decision in the Fowlkes Court Case invalidating SSA's fugitive felon policy, which relies on an outstanding felony warrant as the sole basis for finding that an individual is a fugitive felon. The court ruled that SSA must have evidence that the individual knew that his or her apprehension was sought and consciously evaded arrest. Because of this case, we will be reviewing all fugitive felon policies and plan to publish a final rule at a later time. All comments regarding fugitive felons will be addressed as part of that publication. Therefore, we have removed the fugitive felon provision that was in the notice of proposed rulemaking. *Comment:* One commenter who supported the proposed bar against felons being representative payees, and the exception to that rule recommended that we provide additional language that would allow us to consider how long ago the offense occurred and the nature of the offense. *Response:* The procedures for appointing persons who have a criminal history are provided in our operating instructions (found in the Program Operations Manual System (POMS), chapter GN 00502 at *https://s044a90.ssa.gov/apps10/poms.nsf/)* and do not need to be addressed in these regulations. When we make a determination involving such an applicant, our procedures discuss weighing information about the nature of the crime and when it occurred, along with the relationship to, and custody of, the beneficiary. *Comment:* One commenter suggested that we expand the proposed language regarding the redirection of benefit checks and require specific actions on the part of field office personnel in handling representative payees who have not responded to our request to complete an annual payee report. Another commenter suggested that we revise the proposed language to stress that the provision allowing for the redirection of benefit checks should be used sparingly to avoid delays in processing cases and to prevent potential harm to beneficiaries which might occur by interrupting benefits. *Response:* When we request it, the representative payee is required by §§ 404.2025, 404.2035, 416.625, and 416.635 to account for how benefits were used. These final rules do not change that requirement. Rather, the redirection provision outlined in these rules provides field office personnel with an additional tool to use, at their discretion, to obtain accounting information when we request it. The description in these final rules regarding the frequency and manner in which this provision will be applied will give local field offices the flexibility to address payees on a case-by-case basis. In this way, field offices can use their experience with payees to decide which actions are most likely to succeed in obtaining the accounting report with the least harm to beneficiaries and without causing delays in the processing of critical workloads. *Comment:* A commenter noted that in order to differentiate between “improper use” and “misuse,” the regulations should include the definition of the term “misuse” as described in section 205(j)(9) of the Act. This commenter also noted that it would be helpful to include examples of “improper use.” *Response:* Because the law includes the definition of the term “misuse,” we do not believe that we need to include it in these regulations. “Improper use” is currently discussed in our operating instructions (found in POMS chapter GN 00602) , and we do not believe it needs to be addressed in these regulations as it is a different concept and is outside the scope of the proposed rule. *Comment:* A commenter recommended that a representative payee who has been charged with an overpayment due to the misuse of a beneficiary's funds should have the right to seek waiver of the overpayment. *Response:* A representative payee who is charged with an overpayment due to misuse of a beneficiary's funds is entitled to the same rights that we give to all overpaid individuals, including the right to request waiver of overpayment recovery, and the full administrative appeals process. *Comment:* One commenter expressed a concern that we might impose a penalty on a beneficiary if his or her representative payee made a false or misleading statement or intentionally withheld information to be used in determining the amount of, or the eligibility for, a benefit. The comment stated that such a penalty would unfairly punish the beneficiary because of the actions of another. *Response:* We agree that it would be unfair to penalize a person because of another person's actions and believe the regulation is clear in this regard. In addition, current processing instructions for administrative sanction (found in POMS chapter GN 02604) cases specifically state that we will not impose a sanction on a beneficiary because a representative payee makes a false or misleading statement on the beneficiary's behalf, unless there is evidence that the beneficiary knowingly caused the false statement to be made. Those existing instructions will apply to the knowing withholding of information by a representative payee if the information affects the amount of, or eligibility for, a payment. *Comment:* One commenter was concerned that we would impose a penalty on a person who unknowingly made an incorrect statement. *Response:* The regulations reflecting the statutory provision providing penalties for knowingly making false or misleading statements have been in effect since 2000. These final rules now amend those regulations to reflect legislation that extends the penalties to cover situations where a claimant or recipient fails to provide information that affects the amount of, or eligibility for, a payment, but only if the person knows or should know that the failure to do so is misleading. Our regulations have provided that the decision to impose a sanction will be based on the evidence and the reasonable inferences that can be drawn from that evidence, not on speculation or suspicion, and will be documented with the basis and rationale for that decision. In determining whether a person acted knowingly, our regulations have provided that we will consider, among other things, any physical, mental, educational or linguistic limitations the person might have, as well as the significance of the person's false or misleading statement or omission in terms of its likely impact on benefits. Those same guidelines will apply to persons who fail to report important information. We have an internal review process already established to help ensure that sanctions are imposed only when the evidence supports the finding that the person being penalized acted or failed to provide information knowingly. *Comment:* One commenter addressed the possibility that a person might attempt to return to work and fail to report that attempt because he or she was not aware of the need to report. The commenter suggested that we should take steps to ensure that disabled beneficiaries are reminded periodically of the need to contact us if they resume work activities. *Response:* We routinely remind beneficiaries of the need to report specific changes and events that might affect their payment status. We do this with mid-year mailers, check stuffers and redetermination notices. Under these final rules, we will not impose a penalty on a beneficiary for failing to report an event unless the evidence supports a finding that the person knew or should have known of the need to report. *Comment:* One commenter was concerned that a person who is incapable of understanding the reporting requirements might be penalized for not reporting something using the “should have known” standard. *Response:* We believe the existing regulations and instructions clearly explain when a person should know to report something. We have used the “should have known” standard for imposing penalties for false or misleading statements since 2000. During that time, we are not aware of any problem with applying the “should have known” standard, which is mandated by Congress. Our regulations and instructions clearly state that if a person cannot be aware of something because of a physical or mental impairment, we will not find that the person should be aware, and we will not impose a penalty. *Comment:* The same commenter also pointed out the need for more detailed instructions about considering a person's limitations and lack of proficiency with the English language. *Response:* Our current operating instructions for imposing administrative sanctions (found in POMS chapter GN 02604) contain guidelines that are much more detailed than the regulatory language contained in these final rules. We intend to update those instructions to include even more examples of scenarios that might arise. We do not believe that such detailed information should be included in the regulations. Other Changes For the reasons discussed above, we have not changed the text of the proposed rules based on public comments. However, in addition to a few minor technical changes for clarification purposes, we did make two significant changes. First, as noted in our response to a public comment, we are not including the provision on fugitive felons that was included in the NPRM. Instead, we are reviewing all of our fugitive felon policies and will publish a final rule on this representative payee provision at a later time. Second, we have changed the regulation text for § 408.665 from the NPRM to indicate that a title VIII beneficiary may also be served by a local Social Security field office as well as a United States Government facility. Regulatory Procedures Executive Order 12866, as Amended by Executive Order 13258 We have consulted with the Office of Management and Budget

(OMB)and determined that these final rules meet the criteria for a significant regulatory action under Executive Order 12866, as amended by Executive Order 13258. Thus, they were reviewed by OMB. We have also determined that these final rules meet the plain language requirement of Executive Order 12866, as amended by Executive Order 13258. Executive Order 13132 (Federalism) and the Unfunded Mandates Reform Act of 1995 We have reviewed these final rules for compliance with Executive Order 13132 and the Unfunded Mandates Reform Act of 1995 (UMRA of 1995). We have determined that the final rules are not significant within the meaning of the UMRA of 1995, nor will they have any substantial direct effects on the States, on the relationship between the Federal government and the States, or on the distribution of power and responsibilities among the various levels of government within the meaning of Executive Order 13132. The provision requiring a State license for certain qualified organizations seeking compensation for serving as representative payees affects a very small number of organizational payees and will not have a significant impact on the States. First, the total number of organizations seeking compensation is very small, approximately 800. We do not require most of the organizations within this group to be licensed because they are State or local government agencies. Only the very small number of remaining organizations (community-based nonprofit social service organizations) must seek State licensing. Second, such organizations should already have obtained the necessary license to be in compliance with State law. Therefore, the very small number of organizations seeking a State license will not have a significant impact on the States. Regulatory Flexibility Act We certify that these final rules will not have a significant economic impact on a substantial number of small entities. Therefore, a regulatory flexibility analysis, as provided for in the Regulatory Flexibility Act, as amended, is not required. Paperwork Reduction Act These final rules contain information collection requirements that require Office of Management and Budget

(OMB)clearance under the Paperwork Reduction Act of 1995 (PRA). As required by the PRA, we have submitted a clearance request to OMB for approval. We will publish the OMB number and expiration date upon approval. As required by the PRA, we published an NPRM in the **Federal Register** on October 17, 2005 at 70 FR 60251. In this NPRM, we solicited comments on the burden estimate; the need for the information; its practical utility; ways to enhance its quality, utility and clarity; and on ways to minimize the burden on respondents, including the use of automated collection techniques or other forms of information technology. None of the comments submitted in response to the Notice addressed the specific issues cited above. (Catalog of Federal Domestic Assistance Program Nos. 96.001, Social Security—Disability Insurance; 96.002, Social Security—Retirement Insurance; 96.004, Social Security—Survivors Insurance; 96.006, Supplemental Security Income; 96.020, Special Benefits for Certain World War II Veterans) List of Subjects 20 CFR Part 404 Administrative practice and procedure, Blind, Disability benefits, Old-Age, Survivors and Disability Insurance; Reporting and recordkeeping requirements, Social Security. 20 CFR Part 408 Administrative practice and procedure, Aged; Reporting and recordkeeping requirements, Social Security; Special Veterans benefits; Veterans. 20 CFR Part 416 Administrative practice and procedure, Aged, Blind, Disability benefits, Public assistance programs, Reporting and recordkeeping requirements, Supplemental security income (SSI). Dated: July 10, 2006. Jo Anne B. Barnhart, Commissioner of Social Security. For the reasons set out in the preamble, we are amending subparts E and U of part 404, subpart F of part 408, and subparts F and M of part 416 of title 20 of the Code of Federal Regulations as follows: PART 404—FEDERAL OLD-AGE, SURVIVORS AND DISABILITY INSURANCE (1950- ) Subpart E—[Amended] 1. The authority citation for subpart E of part 404 continues to read as follows: Authority: Secs. 202, 203, 204(a) and (e), 205(a) and (c), 222(b), 223(e), 224, 225, 702(a)(5), and 1129A of the Social Security Act (42 U.S.C. 402, 403, 404(a) and (e), 405(a) and (c), 422(b), 423(e), 424a, 425, 902(a)(5) and 1320a-8a). 2. Amend § 404.459 by revising the section heading and paragraphs

(a)and

(e)to read as follows: § 404.459 Penalty for making false or misleading statements or withholding information.

(a)*Why would SSA penalize me?* You will be subject to a penalty if:

(1)You make, or cause to be made, a statement or representation of a material fact, for use in determining any initial or continuing right to, or the amount of, monthly insurance benefits under title II or benefits or payments under title XVI, that you know or should know is false or misleading; or

(2)You make a statement or representation of a material fact for use as described in paragraph (a)(1) of this section with knowing disregard for the truth; or

(3)You omit from a statement or representation made for use as described in paragraph (a)(1) of this section, or otherwise withhold disclosure (for example, fail to come forward to notify us) of, a fact which you know or should know is material to the determination of any initial or continuing right to, or the amount of, monthly insurance benefits under title II or benefits or payments under title XVI, if you know, or should know, that the statement or representation with such omission is false or misleading or that the withholding of such disclosure is misleading.

(c)and

(d)as paragraphs (c),

(d)and

(e)and adding a new paragraph

(b)to read as follows: § 404.2022 Who may not serve as a representative payee?

(b)Has been convicted of an offense resulting in imprisonment for more than 1 year. However, we may make an exception to this prohibition, if the nature of the conviction is such that selection of the applicant poses no risk to the beneficiary and the exception is in the beneficiary's best interest. 5. Revise § 404.2035 to read as follows: § 404.2035 What are the responsibilities of your representative payee? A representative payee has a responsibility to—

(a)Use the benefits received on your behalf only for your use and benefit in a manner and for the purposes he or she determines, under the guidelines in this subpart, to be in your best interests;

(b)Keep any benefits received on your behalf separate from his or her own funds and show your ownership of these benefits unless he or she is your spouse or natural or adoptive parent or stepparent and lives in the same household with you or is a State or local government agency for whom we have granted an exception to this requirement;

(c)Treat any interest earned on the benefits as your property;

(d)Notify us of any event or change in your circumstances that will affect the amount of benefits you receive, your right to receive benefits, or how you receive them;

(e)Submit to us, upon our request, a written report accounting for the benefits received on your behalf, and make all supporting records available for review if requested by us; and

(f)Notify us of any change in his or her circumstances that would affect performance of his/her payee responsibilities. 6. Amend § 404.2040a by revising paragraph (a)(2), redesignating paragraph (g)(6) as (g)(7), and adding a new paragraph (g)(6) to read as follows: § 404.2040a Compensation for qualified organizations serving as representative payees.

(a)* * *

(2)Any community-based nonprofit social service organization founded for religious, charitable or social welfare purposes, which is tax exempt under section 501(c) of the Internal Revenue Code and which is bonded/insured to cover misuse and embezzlement by officers and employees and which is licensed in each State in which it serves as representative payee (if licensing is available in the State). The minimum amount of bonding or insurance coverage must equal the average monthly amount of social security payments received by the organization plus the amount of the beneficiaries' conserved funds (i.e., beneficiaries' saved social security benefits) plus interest on hand. For example, an organization that has conserved funds of $5,000 and receives an average of $12,000 a month in social security payments must be bonded/insured for a minimum of $17,000. The license must be appropriate under the laws of the State for the type of services the organization provides. An example of an appropriately licensed organization is a community mental health center holding a State license to provide community mental health services.

(g)* * *

(6)Fees for services may not be taken from beneficiary benefits for the months for which we or a court of competent jurisdiction determine(s) that the representative payee misused benefits. Any fees collected for such months will be treated as a part of the beneficiary's misused benefits. 7. Amend § 404.2041 by adding a new paragraph

(f)to read as follows: § 404.2041 Who is liable if your representative payee misuses your benefits?

(f)Any amounts that the representative payee misuses and does not refund will be treated as an overpayment to that representative payee. See subpart F of this part. 8. Amend § 404.2065 by revising the introductory text to read as follows: § 404.2065 How does your representative payee account for the use of benefits? Your representative payee must account for the use of your benefits. We require written reports from your representative payee at least once a year (except for certain State institutions that participate in a separate onsite review program). We may verify how your representative payee used your benefits. Your representative payee should keep records of how benefits were used in order to make accounting reports and must make those records available upon our request. If your representative payee fails to provide an annual accounting of benefits or other required reports, we may require your payee to receive your benefits in person at the local Social Security field office or a United States Government facility that we designate serving the area in which you reside. The decision to have your representative payee receive your benefits in person may be based on a variety of reasons. Some of these reasons may include the payee's history of past performance or our past difficulty in contacting the payee. We may ask your representative payee to give us the following information: PART 408—SPECIAL BENEFITS FOR CERTAIN WORLD WAR II VETERANS

(SVB)Subpart F—[Amended] 9. The authority citation for subpart F of part 408 continues to read as follows: Authority: Secs. 702(a)(5), 807, and 810 of the Social Security Act (42 U.S.C. 902(a)(5), 1007, and 1010). 10. Revise § 408.665 to read as follows: § 408.665 How does your representative payee account for the use of your SVB benefits? Your representative payee must account for the use of your benefits. We require written reports from your representative payee at least once a year. We may verify how your representative payee used your benefits. Your representative payee should keep records of how benefits were used in order to provide accounting reports and must make those records available upon our request. If your representative payee fails to provide an annual accounting of benefits or other required report, we may require your payee to appear in person at the local Social Security field office or a United States Government facility that we designate serving the area in which you reside. The decision to have your representative payee receive your benefits in person may be based on a variety of reasons. Some of these reasons may include the payee's history of past performance or our past difficulty in contacting the payee. We may ask your representative payee to give us the following information:

(a)Where you lived during the accounting period;

(b)Who made the decisions on how your benefits were spent or saved;

(c)How your benefit payments were used; and

(d)How much of your benefit payments were saved and how the savings were invested. PART 416—SUPPLEMENTAL SECURITY INCOME FOR THE AGED, BLIND AND DISABLED Subpart F—[Amended] 11. The authority citation for subpart F of part 416 continues to read as follows: Authority: Secs. 702(a)(5), 1631(a)(2) and (d)(1) of the Social Security Act (42 U.S.C. 902(a)(5) and 1383(a)(2) and (d)(1)). 12. Amend § 416.622 by redesignating paragraphs (b),

(c)and

(d)as paragraphs (c),

(d)and

(e)and adding a new paragraph

(b)to read as follows: § 416.622 Who may not serve as a representative payee?

(b)Has been convicted of an offense resulting in imprisonment for more than 1 year. However, we may make an exception to this prohibition, if the nature of the conviction is such that selection of the applicant poses no risk to the beneficiary and the exception is in the beneficiary's best interest. 13. Revise § 416.635 to read as follows: § 416.635 What are the responsibilities of your representative payee? A representative payee has a responsibility to—

(a)Use the benefits received on your behalf only for your use and benefit in a manner and for the purposes he or she determines under the guidelines in this subpart, to be in your best interests;

(c)Treat any interest earned on the benefits as your property;

(d)Notify us of any event or change in your circumstances that will affect the amount of benefits you receive, your right to receive benefits, or how you receive them;

(e)Submit to us, upon our request, a written report accounting for the benefits received on your behalf, and make all supporting records available for review if requested by us;

(f)Notify us of any change in his or her circumstances that would affect performance of his/her payee responsibilities; and

(g)Ensure that you are receiving treatment to the extent considered medically necessary and available for the condition that was the basis for providing benefits (see § 416.994a(i)) if you are under age 18 (including cases in which your low birth weight is a contributing factor material to our determination that you are disabled). 14. Amend § 416.640a by revising paragraph (a)(2), redesignating paragraph (g)(6) as (g)(7), and adding a new paragraph (g)(6) to read as follows: § 416.640a Compensation for qualified organizations serving as representative payees.

(a)* * *

(2)Any community-based nonprofit social service organization founded for religious, charitable or social welfare purposes, which is tax exempt under section 501(c) of the Internal Revenue Code and which is bonded/insured to cover misuse and embezzlement by officers and employees and which is licensed in each State in which it serves as representative payee (if licensing is available in the State). The minimum amount of bonding or insurance coverage must equal the average monthly amount of supplemental security income payments received by the organization plus the amount of the beneficiaries' conserved funds (i.e., beneficiaries' saved supplemental security income payments) plus interest on hand. For example, an organization that has conserved funds of $5,000 and receives an average of $12,000 a month in supplemental security income payments must be bonded/insured for a minimum of $17,000. The license must be appropriate under the laws of the State for the type of services the organization provides. An example of an appropriately licensed organization is a community mental health center holding a State license to provide community mental health services.

(g)* * *

(f)to read as follows: § 416.641 Who is liable if your representative payee misuses your benefits?

(f)Any amounts that the representative payee misuses and does not refund will be treated as an overpayment to that representative payee. See subpart E of this part. 16. Amend § 416.665 by revising the introductory text to read as follows: § 416.665 How does your representative payee account for the use of benefits? Your representative payee must account for the use of your benefits. We require written reports from your representative payee at least once a year (except for certain State institutions that participate in a separate onsite review program). We may verify how your representative payee used your benefits. Your representative payee should keep records of how benefits were used in order to make accounting reports and must make those records available upon our request. If your representative payee fails to provide an annual accounting of benefits or other required reports, we may require your payee to receive your benefits in person at the local Social Security field office or a United States Government facility that we designate serving the area in which you reside. The decision to have your representative payee receive your benefits in person may be based on a variety of reasons. Some of these reasons may include the payee's history of past performance or our past difficulty in contacting the payee. We may ask your representative payee to give us the following information: Subpart M—[Amended] 17. The authority citation for subpart M of part 416 continues to read as follows: Authority: Secs. 702(a)(5), 1129A, 1611-1614, 1619, and 1631 of the Social Security Act (42 U.S.C. 902(a)(5), 1320a-8a, 1382-1382c, 1382h, and 1383). 18. Amend § 416.1340 by revising the section heading and paragraphs

(a)and

(e)to read as follows: § 416.1340 Penalty for making false or misleading statements or withholding information.

(a)*Why would SSA penalize me?* You will be subject to a penalty if:

(2)You make a statement or representation of a material fact for use as described in paragraph (a)(1) of this section with knowing disregard for the truth; or

(e)*How will SSA make its decision to penalize me?* In order to impose a penalty on you, we must find that you knowingly (knew or should have known or acted with knowing disregard for the truth) made a false or misleading statement or omitted or failed to report a material fact if you knew, or should have known, that the omission or failure to disclose was misleading. We will base our decision to penalize you on the evidence and the reasonable inferences that can be drawn from that evidence, not on speculation or suspicion. Our decision to penalize you will be documented with the basis and rationale for that decision. In determining whether you knowingly made a false or misleading statement or omitted or failed to report a material fact so as to justify imposition of the penalty, we will consider all evidence in the record, including any physical, mental, educational, or linguistic limitations (including any lack of facility with the English language) which you may have had at the time. In determining whether you acted knowingly, we will also consider the significance of the false or misleading statement or omission or failure to disclose in terms of its likely impact on your benefits. [FR Doc. E6-17320 Filed 10-17-06; 8:45 am] BILLING CODE 4191-02-P DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 117 [CGD01-06-127] Drawbridge Operation Regulations; Passaic River, Harrison, NJ AGENCY: Coast Guard, DHS. ACTION: Notice of temporary deviation from regulations. SUMMARY: The Commander, First Coast Guard District, has issued a temporary deviation from the regulation governing the operation of the Amtrak Dock Bridge across the Passaic River at mile 5.0, at Harrison, New Jersey. Under this temporary deviation, the bridge may remain in the closed position for six weekends from October 13, 2006 through November 20, 2006. This deviation is necessary to facilitate scheduled bridge maintenance. DATES: This deviation is effective from October 13, 2006 through November 20, 2006. ADDRESSES: Materials referred to in this document are available for inspection or copying at the First Coast Guard District, Bridge Branch Office, One South Street, New York, New York 10004, between 7 a.m. and 3 p.m., Monday through Friday, except Federal holidays. The telephone number is

(212)668-7165. The First Coast Guard District Bridge Branch Office maintains the public docket for this temporary deviation. FOR FURTHER INFORMATION CONTACT: Joe Arca, Project Officer, First Coast Guard District, at

(212)668-7165. SUPPLEMENTARY INFORMATION: The Amtrak Dock Bridge across the Passaic River at mile 5.0, at Harrison, New Jersey, has a vertical clearance in the closed position of 13 feet at mean high water and 20 feet at mean low water. The existing drawbridge operation regulations are listed at 33 CFR 117.739(e). The owner of the Dock Bridge is the National Railroad Passenger Corporation (Amtrak). The bridge operator, the Port Authority Trans Hudson Corporation (PATH), requested a temporary deviation to facilitate scheduled bridge maintenance, replacement of the miter joints. The bridge will not be able to open while the bridge maintenance is underway. Under this temporary deviation, the Amtrak Dock Bridge may remain in the closed position for six weekends from October 13, 2006 through November 20, 2006. The weekend bridge closures shall begin each week at 11 p.m. on Friday and continue through 5 a.m. on Monday. In accordance with 33 CFR 117.35(c), this work will be performed with all due speed in order to return the bridge to normal operation as soon as possible. Should the bridge maintenance authorized by this temporary deviation be completed before the end of the effective period published in this notice, the Coast Guard will rescind the remainder of this temporary deviation, and the bridge shall be returned to its normal operating schedule. Notice of the above action shall be provided to the public in the Local Notice to Mariners and the **Federal Register** , where practicable. This deviation from the operating regulations is authorized under 33 CFR 117.35. Dated: October 10, 2006. Gary Kassof, Bridge Program Manager, First Coast Guard District. [FR Doc. E6-17390 Filed 10-17-06; 8:45 am] BILLING CODE 4910-15-P DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 117 [CGD01-06-104] Drawbridge Operation Regulations; Mill Neck Creek, Oyster Bay, NY AGENCY: Coast Guard, DHS. ACTION: Notice of temporary deviation from regulations. SUMMARY: The Commander, First Coast Guard District, has issued a temporary deviation from the regulation governing the operation of the Bayville Bridge, across Mill Neck Creek, mile 0.1, at Oyster Bay, New York. This deviation, allows the bridge owner to open only one of the two moveable bascule spans for the passage of vessel traffic from October 28, 2006 through November 20, 2006. This deviation is necessary to facilitate scheduled bridge maintenance. DATES: This deviation is effective from October 28, 2006 through November 20, 2006. ADDRESSES: Materials referred to in this document are available for inspection or copying at the First Coast Guard District, Bridge Branch Office, One South Street, New York, New York, 10004, between 7 a.m. and 3 p.m., Monday through Friday, except Federal holidays. The telephone number is

(212)668-7165. The First Coast Guard District Bridge Branch Office maintains the public docket for this temporary deviation. FOR FURTHER INFORMATION CONTACT: Judy Leung-Yee, Project Officer, First Coast Guard District, at

(212)668-7165. SUPPLEMENTARY INFORMATION: The Bayville Bridge, across Mill Neck Creek, mile 0.1, at Oyster Bay, New York, has a vertical clearance in the closed position of 9 feet at mean high water and 16 feet at mean low water. The existing regulation requires the bridge to open on demand. The owner of the bridge, County of Nassau, Department of Public Works, requested a temporary deviation to facilitate scheduled structural bridge repairs, rehabilitation of the two bascule spans. In order to perform the structural repairs, the bascule span undergoing work must remain in the closed position. Therefore, under this temporary deviation the Bayville Bridge across Mill Neck Creek, mile 0.1, at Oyster Bay, New York, shall open only one of the two movable spans for the passage of vessel traffic from October 28, 2006 through November 20, 2006. In accordance with 33 CFR 117.35(c), this work will be performed with all due speed in order to return the bridge to normal operation as soon as possible. Should the bridge maintenance authorized by this temporary deviation be completed before the end of the effective period published in this notice, the Coast Guard will rescind the remainder of this temporary deviation, and the bridge shall be returned to its normal operating schedule. Notice of the above action shall be provided to the public in the Local Notice to Mariners and the **Federal Register** , where practicable. This deviation from the operating regulations is authorized under 33 CFR 117.35(b). Dated: October 3, 2006. Gary Kassof, Bridge Program Manager, First Coast Guard District. [FR Doc. E6-17385 Filed 10-17-06; 8:45 am] BILLING CODE 4910-15-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 180 [EPA-HQ-OPP-2006-0792; FRL-8098-5] Flumioxazin; Pesticide Tolerances for Emergency Exemptions AGENCY: Environmental Protection Agency (EPA). ACTION: Final rule. SUMMARY: This regulation establishes a time-limited tolerance for residues of flumioxazin, 2-[7-fluoro-3,4-dihydro-3-oxo-4-(2-propynyl)-2 *H* -1,4-benzoxazin-6-yl]-4,5,6,7-tetrahydro-1 *H* -isoindole-1,3(2 *H* )-dione in or on alfalfa forage and alfalfa hay. This action is in response to EPA's granting of an emergency exemption under section 18 of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) authorizing use of the pesticide on alfalfa. This regulation establishes a maximum permissible level for residues of flumioxazin in this food commodity. The tolerance expires and is revoked on December 31, 2009. DATES: This regulation is effective October 18, 2006. Objections and requests for hearings must be received on or before December 18, 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-2006-0792. All documents in the docket are listed on the regulations.gov Web site. 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 either in the electronic docket at *http://www.regulations.gov* , or, if only available in hard copy, at the Office of Pesticide Programs

(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-2006-0792 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 December 18, 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-2006-0792, 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 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 residues of the herbicide, flumioxazin, 2-[7-fluoro-3,4-dihydro-3-oxo-4-(2-propynyl)-2 *H* -1,4-benzoxazin-6-yl]-4,5,6,7-tetrahydro-1 *H* -isoindole-1,3(2 *H* )-dione in or on alfalfa forage at 0.13 parts per million

(ppm)and alfalfa hay at 0.45 ppm. These tolerances expire and are revoked on December 31, 2009. EPA will publish a document in the **Federal Register** to remove the revoked tolerance from the Code of Federal Regulations (CFR). EPA is also removing an expired tolerance for residues of flumioxazin on sweet potato, roots. 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 Flumioxazin on Alfalfa and FFDCA Tolerances [Arizona states that herbicides currently available for use in Arizona alfalfa have not been effective either because they provided poor control of groundsel, had poor crop safety, or undesirable plantback intervals. Losses resulting from groundsel infestation of alfalfa are generated not by actual yield losses due to groundsel infestation but rather they are due to loss of sale of alfalfa for horse and cattle feed. There is an approximate 85% reduction in the net revenue for alfalfa producers because alfalfa infested with groundsel is not marketable feed for cattle and horses because groundsel is highly toxic for these animals]. EPA has authorized under FIFRA section 18 the use of flumioxazinon alfalfa for control of common groundsel ( *Senecio vulgarius* ) in Arizona. 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 flumioxazin in or on alfalfa. 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 exemption in order to address an urgent non-routine situation and to ensure that the resulting food is 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 December 31, 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 alfalfa forage and alfalfa hay 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 flumioxazin meets EPA's registration requirements for use on alfalfa or whether permanent tolerances for this use would be appropriate. Under these circumstances, EPA does not believe that these tolerances serve as a basis for registration of flumioxazin 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 Arizona to use this pesticide on this crop 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 exemption for flumioxazin, 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 flumioxazin and to make a determination on aggregate exposure, consistent with section 408(b)(2) of the FFDCA, for time-limited tolerances for residues of flumioxazin in or on alfalfa forage at 0.13 ppm and alfalfa hay at 0.45 ppm. On May 3, 2006 the Agency published a Final Rule (71 FR 25951, FRL-8057-5) establishing tolerances for residues of flumioxazin, 2-[7-fluoro-3,4-dihydro-3-oxo-4-(2-propynyl)-2 *H* -1,4-benzoxazin-6-yl]-4,5,6,7-tetrahydro-1 *H* -isoindole-1,3(2 *H* )-dione in or on pome fruit crop group 11, stone fruit crop group 12 and strawberry. When the Agency conducted the risk assessments in support of those tolerance actions, the Agency also assessed the use of flumioxazin on alfalfa under section 18 of FIFRA. Therefore, establishing the alfalfa tolerances will not change the most recent estimated aggregate risks resulting from use of flumioxazin, as discussed in the May 3, 2006 **Federal Register** . Refer to the May 3, 2006 **Federal Register** document for a detailed discussion of the aggregate risk assessments and determination of safety. EPA relies upon those risk assessments and the findings made in the **Federal Register** document in support of this action . Based on the risk assessments discussed in the final rule published in the **Federal Register** of May 3, 2006, 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 flumioxazin residues. V. Other Considerations A. Analytical Enforcement Methodology Adequate enforcement methodology (gas chromatography-nitrogen phosphorus detection) is available to enforce the tolerance expression. 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 flumioxazin on alfalfa. VI. Conclusion Therefore, tolerances are established for residues of flumioxazin, 2-[7-fluoro-3,4-dihydro-3-oxo-4-(2-propynyl)-2H-1,4-benzoxazin-6-yl]-4,5,6,7-tetrahydro-1H-isoindole-1,3(2H)-dione, in or on alfalfa forage at 0.13 ppm and alfalfa hay at 0.45 ppm. VII. Statutory and Executive Order Reviews This final rule establishes 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 tolerances 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 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). Subjects in 40 CFR Part 180 Environmental protection, Administrative practice and procedure, Agricultural commodities, Pesticides and pests, Reporting and recordkeeping requirements. Dated: October 5, 2006. Lois Rossi, 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 180.568 is amended by revising the table in paragraph

(b)to read as follows: § 180.568 Flumioxazin; tolerances for residues.

(b)* * * Commodity Parts per million Expiration/revocation date Alfalfa, forage 0.13 12/31/09 Alfalfa, hay 0.45 12/31/09 [FR Doc. E6-17138 Filed 10-17-06; 8:45 am] BILLING CODE 6560-50-S DEPARTMENT OF HOMELAND SECURITY Coast Guard 46 CFR Parts 67 and 68 [USCG-2005-20258] RIN 1625-AA95 Vessel Documentation: Lease Financing for Vessels Engaged in the Coastwise Trade AGENCY: Coast Guard, DHS. ACTION: Final rule. SUMMARY: The Coast Guard amends its regulations for documenting lease-financed vessels that have a “coastwise endorsement” (i.e., vessels used in trade and passenger service within the U.S. or between U.S. ports and those used in dredging and towing in U.S. waters). The vessels affected by this proposal are owned by foreign owned or controlled U.S. companies, where there is a “demise charter” to a U.S. citizen (i.e., an agreement for the charterer to assume responsibility for operating, crewing, and maintaining the vessel as if the charterer owned it). DATES: This final rule is effective November 17, 2006, except for §§ 68.65, 68.70, 68.75, 68.100, 68.107, and 68.109, which contain certain collection of information requirements that have not yet been approved by the Office of Management and Budget (OMB). The Coast Guard will publish a document in the **Federal Register** announcing the effective date of those sections. ADDRESSES: Comments and material received from the public, as well as documents mentioned in this preamble as being available in the docket, are part of docket USCG-2005-20258 and are available for inspection or copying at the Docket Management Facility, U.S. Department of Transportation, room PL-401, 400 Seventh Street, SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. You may also find this docket on the Internet at *http://dms.dot.gov.* FOR FURTHER INFORMATION CONTACT: If you have questions on this rule, call Patricia Williams, Deputy Director, National Vessel Documentation Center, Coast Guard, telephone 304-271-2506. If you have questions on viewing or submitting material to the docket, call Renee V. Wright, Program Manager, Docket Operations, telephone 202-493-0402. SUPPLEMENTARY INFORMATION: Table of Contents I. Regulatory History II. Background and Purpose III. Discussion of Comments and Changes IV. Regulatory Analysis and Review I. Regulatory History On February 15, 2006, we published a notice of proposed rulemaking (proposed rule) entitled “Vessel Documentation: Lease Financing for Vessels Engaged in the Coastwise Trade” in the **Federal Register** (71 FR 7897). We received 14 letters commenting on the proposed rule. One party requested that the 90-day comment period be extended to 120 days. After consideration of the reasons for the request, we believe that the 90 day comment period was far more than adequate to allow for carefully researched, thoroughly responsive comments and, therefore, deny the request for extension. To do otherwise would be a disservice to those who complied with the published deadline of May 16, 2006, and would unnecessarily delay publication of this final rule. No public meeting was requested and none was held. II. Background and Purpose This final rule amends the regulations in title 46, Code of Federal Regulations (CFR), parts 67 and 68, on the documentation of U.S.-built vessels owned by foreign owned or controlled U.S. companies that are lease financed to a U.S. citizen for use in the coastwise trade. Under lease financing, ownership of the vessel is in the name of the owner, with a demise charter to the charterer (i.e., the operator) of the vessel. A demise charter, also known as a bareboat charter, is an agreement in which the charterer assumes the responsibility for operating, crewing, and maintaining the vessel as if the charterer owned it. This final rule is necessary to align our lease-financing regulations with amendments made by Congress under the Coast Guard and Maritime Transportation Act of 2004 (Pub. L. 108-293) (the Act) concerning the information needed to determine the eligibility of a vessel owner for a coastwise endorsement under the lease-financing law. As the lease-financing provisions of the Act do not require regulatory action on our part to make them effective, this rule merely aligns our lease-financing regulations with the provisions of the Act. Specifically, the final rule makes the following five changes primarily to align our regulations with the Act: 1. It clarifies the requirements used to determine the eligibility of lease-financed vessels for coastwise endorsements. 2. It permanently grandfathers, from the new statutory requirements, all lease-financed vessels, except for offshore supply vessels documented on or before August 9, 2004. 3. It requires the owners of lease-financed offshore supply vessels with valid coastwise endorsements issued before August 9, 2004, to reapply for a new coastwise endorsement by August 9, 2007. 4. It requires all owners of lease-financed vessels with recently-issued coastwise endorsements (i.e., those issued after August 9, 2004) to certify each year that their ownership and investment status has not changed. 5. It requires entities that enter into a demise sub-charter agreement to file a copy of the sub-charter and amendments to the sub-charter with the Director of the National Vessel Documentation Center (Documentation Center). III. Discussion of Comments and Changes By the close of the comment period for the proposed rule, 14 letters were received. Three of the letters were received after the May 16, 2006, deadline. We considered the comments in the late-filed letters, but the comments either were similar to those in the on-time letters or suggested organizational changes that we determined were not suitable for this rulemaking. Thus, we made no changes to the regulatory text as a result of the late-filed letters. The request made by one party for an extension of the comment period is discussed in the “Regulatory History” section of this preamble. 1. *Section 68.55.* Two comments requested that paragraph

(2)of the definition of the word “affiliate” in proposed § 68.55 be changed to include reports submitted to a comparable agency of a foreign government as well as reports submitted to the United States Securities and Exchange Commission

(SEC)or the Internal Revenue Service (IRS). They pointed out that not being named as being part of the same consolidated group in any report or other document submitted to the SEC or IRS is not the only proof of non-affiliation. They noted that the affiliation test, as a practical matter, could be applied in cases where the document was not one submitted to the SEC or IRS but to a comparable agency of a foreign government. Though there is merit to this suggestion, to adopt it would expand the term “affiliate” beyond the scope of the definition in the Act. We believe that, in providing a specific definition, Congress expected the Coast Guard to apply that definition. 2. *Section 68.55.* One comment noted that the definition of the term “passive investment” in § 68.55, though tracking the language of the Act, needed further clarification. The comment offered no suggestion as to how the definition should be clarified. We believe that, in providing a specific definition, Congress expected the Coast Guard to apply that definition. 3. *Section 68.55.* One comment requested that we provide a less complicated definition of the term “qualified proprietary cargo” than is found in proposed § 68.55. The comment makes no suggestion as to how to improve the definition. The definition in § 68.55, though lengthy, is identical to the language in the Act. We do not believe that further clarification is necessary or desirable. 4. *Section 68.65(a)(1)(i).* One comment noted that neither the Act nor the proposed rule defines “leasing company, bank, and financial institution,” as used in § 68.65(a)(1)(i). They requested that we provide “a clearer standard for qualification.” We believe that, by doing so, we could inadvertently and improperly restrict sources of funding. Accordingly, we left the term unchanged. 5. *Section 68.65(a)(2)(vi).* One comment noted a typographical error in proposed § 68.65(a)(2)(vi), which refers to a non-existent § 68.10. The correct reference is § 67.20. However, because § 67.20 is removed by this final rule, we revised § 68.65(a)(2)(vi) to read: “That person owned one or more vessels documented as of August 9, 2004, under § 67.20, as that section was in effect on that date.” 6. *Section 68.70(e).* One comment suggested that, in proposed § 68.70(e), we exclude time charters, voyage charters, and contracts of affreightment from the requirement that they be filed with the Documentation Center. We disagree. The purpose of § 68.70(e) is to provide for discretionary review by the Documentation Center of these instruments in order to ensure that, regardless of their title, they do not transfer impermissible control of the vessel to a person not qualified to operate vessels in coastwise trade. 7. *Sections 68.70(d) and 68.75(d).* Two comments took issue with the requirement in proposed §§ 68.70(d) and 68.75(d) that sub-charters and amendments to them be filed within 10 days after their effective date. The comments requested that we require sub-charters and amendments to be filed no later than 10 days before their effective date. Although we understand the concern behind this comment, 46 U.S.C. 12106(e)(2) requires that amendments to charters be filed within 10 days following the filing of an amendment. We believe that all demise charters should be treated equally and that Congress did not intend to place a greater burden on sub-charterers than on the original demise charterer. Therefore, we require both to be filed within 10 days after their effective date. 8. *Section 68.100.* One comment noted that the proposed rule did not account for the special grandfather clause in sections 608(c)(1) and (c)(2) of the Act concerning permanent replacement vessels contracted for purchase or construction not later than December 31, 2004. We deliberately left these provisions out of our regulations because of the very small universe of vessels to which these provisions apply. Instead, we intend to evaluate applications for these vessels on a case-by-case basis, applying the literal language of the Act. 9. *Section 68.105(b) and (d).* Two comments noted that proposed § 68.105(b) and

(d)would extend grandfather provisions to vessels documented before February 4, 2004, instead of those documented before August 9, 2004, as provided by the Act. We agree and have changed the dates in § 68.105(b) and

(d)to August 9, 2004, to align with the Act. 10. *Section 68.111.* Four comments expressed concern that a coastwise endorsement under § 68.111(a)(1) and (b)(1) would be invalidated upon the expiration or termination of a demise charter. The comments noted that, under the Act, vessels documented for coastwise trade under a lease-financing arrangement before August 9, 2004, are “grandfathered” and are not subject to regulations published after February 4, 2004. These provisions are from previous 46 CFR 67.167(c)(10) and (c)(11), which are relocated by this rulemaking, without change, to new § 68.111(a)(1) and (b)(1). We believe that the invalidation of endorsements upon expiration or transfer of a charter is essential to proper management and integrity of the coastwise-documentation process. There are numerous other circumstances under which an endorsement becomes invalid, such as a change in the vessel's tonnage, change of ownership, change of the vessel's name, change of hailing port, or even a failure to renew. However, it has always been our position that vessels documented under 46 U.S.C. 12106(e) before August 9, 2004, will be eligible to apply, under subpart D of part 68, for a new coastwise endorsement. However, because it is probable that other readers may have similar concerns, we have added new paragraph

(c)to § 68.111 to clearly state these grandfather rights. 11. A late-filed comment requested that we reorganize the proposed rule to provide a separate subpart for owners of “certain tank vessels” specifically addressed in 46 U.S.C. 12106(f)(3). It further requested a new opportunity for comment on the proposed rule following such a reorganization. We do not believe that a new subpart would be helpful in light of the delay it would cause. The uncertainty engendered by the lack of a final rule while a supplemental notice of proposed rulemaking is being prepared and submitted for comment outweighs any perceived advantage which might be realized through such a reorganization. 12. One late-filed comment requested an extension of the comment period to allow for comments “within the financial community concerning the desirability of provisions that would allow large non-citizen vessel financing organizations, that might include a single vessel operating affiliate, to qualify on the basis of some form of *de minimis* exception.” Should we re-open the comment period as suggested, we would not be able to consider this issue because the Act makes no provision for these exceptions. Therefore, we did not adopt this suggestion. 13. *Third-party audits.* Four comments addressed the issue of third-party audits in response to a question in the preamble to the proposed rule (71 FR 7899; February 15, 2006). The proposed rule itself did not contain a third-party-audit provision. The question was: “Should we require each applicant for a coastwise endorsement issued under lease financing to provide a certification from an independent auditor with expertise in the business of vessel financing and operations?” All of the comments on third-party-audit question stated that any benefit which might be derived from these audits would be outweighed by the cost of the audits. As explained in the preamble to the proposed rule (71 FR 7899), the same question was asked in an earlier lease-financing rulemaking that was withdrawn on April 13, 2005, before the Act was passed. Though the comments to the withdrawn rulemaking were evenly split between those favoring third-party audits and those opposing it, we believe that the new self-certification requirement in the Act (46 U.S.C. 12106(f)) evidently caused those who favored third-party audits to change their minds. Therefore, we do not intend to further consider the issue of third-party audits. IV. Regulatory Analysis and Review Assessment This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review. We expect the economic impact of this rule to be minimal. The supplemental “Regulatory Analysis” in the docket for the proposed rule is unchanged for the final rule. There were no comments on the Regulatory Analysis. A summary of the analysis follows: The Coast Guard amends its regulations on the documentation for U.S.-built vessels owned by foreign-owned or controlled U.S. companies that are lease financed to a U.S. citizen for use in the coastwise trade. This rule addresses amendments provided by Congress under the Act concerning information needed to determine the eligibility of a vessel owner for a coastwise endorsement under the lease-financing law. This rule will update and provide consistent documentation requirements to determine the eligibility of lease- financed vessels for coastwise endorsements as discussed under the “Background and Purpose” section of this preamble. The rule also implements the Congressionally-mandated permanent grandfathering of all lease-financed vessels, except for offshore supply vessels documented on or before August 9, 2004, from the new requirements. This rule will make three changes to the existing regulations that will cause additional costs to industry. First, it requires owners of lease-financed offshore supply vessels with valid coastwise endorsements issued before August 9, 2004, to reapply for a new coastwise endorsement by August 9, 2007. Second, it will require all owners of lease-financed vessels with recently issued coastwise endorsements (i.e., those issued after August 9, 2004) to certify each year that their ownership and investment status has not changed. Lastly, it will require entities that enter into a demise sub-charter agreement to file a copy of the sub-charter and amendments to the sub-charter with the Director of the Documentation Center. These changes are additional collection-of-information (paperwork) requirements. Based on Coast Guard data, we estimate that this rule will affect eight current owners of offshore supply vessels. We also estimate, from the Coast Guard data and information from the Documentation Center, that there will be 25 current and future owners affected by the annual certification requirements of this rule, which includes the eight owners of offshore supply vessels affected by this rule. Based on projections from the Documentation Center, we assume that there will be approximately three demise sub-charter agreements over the next 10 years. We estimate that the total first-year cost of this rule to industry is $11,059. This first-year cost includes the one-time cost to the affected offshore supply vessel owners to reapply for a new coastwise endorsement, the first year cost of annual certification for the affected vessel owners, and a portion of the cost to affected vessel charterers associated with paperwork submissions of future demise sub-charter agreements. After the first year of implementation, the total annual cost of this rule to industry is $1,621, which is the first-year cost less the one-time cost to the affected offshore supply vessel owners to reapply for a new coastwise endorsement. The estimated 10-year (2006-2015), discounted present value of the total cost of this rule to all affected owners and charterers is $21,623 based on a 7 percent discount rate and $23,684 based on a 3 percent discount rate. The benefit of this rule is that it updates and provides consistent documentation requirements. These requirements comply with mandates provided by Congress under the Act concerning information and documentation needed to determine the eligibility of a vessel owner. These updated documentation requirements will assist the Coast Guard in determining the eligibility of lease-financed vessels for coastwise endorsements. We need this information to determine whether an entity meets the current statutory requirements. We will use these documentation requirements to issue coastwise endorsements to eligible lease-financed vessels. Small Entities Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this rule will 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 of less than 50,000. This rule will not have a significant economic impact on a substantial number of small entities. The Initial Regulatory Flexibility Analysis in the supplemental “Regulatory Analysis” in the docket for the proposed rule is unchanged for the final rule. This rule will affect owners of lease-financed offshore supply vessels with valid coastwise endorsements issued before August 9, 2004, owners of lease-financed vessels with recently-issued coastwise endorsements, and charterers that enter into a demise sub-charter agreement. The owners and charterers mentioned above are U.S. subsidiaries or branch companies that are owned or controlled by larger, foreign, corporate affiliates and, therefore, are considered as “one party with such interests aggregated” under the small business size regulations (13 CFR 121.103). We determined in the Initial Regulatory Flexibility Analysis whether an owner is a small or large entity using the North American Industry Classification System (NAICS) codes and the small entity revenue or employee size standards provided by the U.S. Small Business Administration (SBA). Based on our determination in the Initial Regulatory Flexibility Analysis in the docket for the proposed rule, the owners in each NAICS code category exceed the SBA size standard and are classified as large businesses. We received no comments on this initial determination or any potential economic impacts on small entities from this rulemaking. Therefore, the Coast Guard certifies under 5 U.S.C. 605(b) that this final rule will not have a significant economic impact on a substantial number of small entities. Assistance for Small Entities Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Public Law 104-121), we offered to assist small entities in understanding the rule so that they can better evaluate its effects on them and participate in the rulemaking. The proposed rule provided small businesses, organizations, and governmental jurisdictions with a Coast Guard contact to handle questions concerning this rule's provisions. 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 a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). Under 46 CFR 68.65, 68.70, 68.75, 68.100, 68.107, and 68.109, this rule will amend the collection-of-information requirements for vessel owners and charterers engaging in the coastwise trade under the lease-financing provisions of 46 U.S.C. 12106(e). The Coast Guard needs this information to determine whether an entity meets the statutory requirements. These provisions will modify the burden in the collection previously approved by the Office of Management and Budget

(OMB)under OMB Control Number 1625-0027, Vessel Documentation. We performed an assessment of the additional burden associated with these provisions and published them in the proposed rule and in the supplemental “Regulatory Analysis” in the docket. We received no public comment on the assessment of these provisions or the extent they modify the burden in the previously approved collection. The assessment published in the proposed rule and the supplemental Regulatory Analysis in the docket is unchanged for the final rule. As required by the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)), we have submitted a copy of this rule to OMB for its review of the collection of information. OMB has not yet completed its review of, or approved the changes to, this collection. Therefore, §§ 68.65, 68.70, 68.75, 68.100, 68.107, and 68.109 in this rule will not become effective until this collection is approved by OMB. We will publish a notice in the **Federal Register** announcing OMB's approval and effective date of those sections. You are not required to respond to a collection of information unless it displays a currently valid OMB control number. 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, that act addresses actions that may result in the expenditure by a 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 effect 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 will not create an environmental risk to health or risk to safety that might disproportionately affect children. Indian Tribal Governments This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it will 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.lD 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 (34)(d), of the Instruction, from further environmental documentation. A final “Environmental Analysis Check List” and a final “Categorical Exclusion Determination” are available in the docket where indicated under ADDRESSES . List of Subjects 46 CFR Part 67 Reporting and recordkeeping requirements, Vessels. 46 CFR Part 68 Oil pollution, Reporting and recordkeeping requirements, Vessels. For the reasons discussed in the preamble, the Coast Guard amends 46 CFR parts 67 and 68 as follows: PART 67—DOCUMENTATION OF VESSELS 1. The authority citation for part 67 continues to read as follows: Authority: 14 U.S.C. 664; 31 U.S.C. 9701; 42 U.S.C. 9118; 46 U.S.C. 2103, 2110; 46 U.S.C. app. 876; Department of Homeland Security Delegation No. 0170.1. § 67.3 [Amended] 2. In § 67.3, remove the following terms and their definitions: “affiliate,” “group,” “operation or management of vessels,” “parent,” “primarily engaged in leasing or other financing transactions,” “sub-charter,” and “subsidiary.” § 67.20 [Removed] 3. Remove § 67.20. § 67.35 [Amended] 4. In § 67.35(c), remove the words “§ 67.20” and add, in their place, the words “§§ 68.60 or 68.105 of this chapter”. § 67.36 [Amended] 5. In § 67.36(c)(2), remove the words “§ 67.20” and add, in their place, the words “§ 68.60 or § 68.105 of this chapter”. § 67.39 [Amended] 6. In § 67.39(c)(2), remove the words “§ 67.20” and add, in their place, the words “§ 68.60 or § 68.105 of this chapter”. § 67.147 [Removed] 7. Remove § 67.147. 8. In § 67.167, in paragraph (c)(9), following the semicolon, add the word “and”; revise paragraph (c)(10) to read as shown below; and remove paragraph (c)(11): § 67.167 Requirement for exchange of Certificate of Documentation.

(c)* * *

(10)For a vessel with a coastwise endorsement under 46 U.S.C. 12106(e), one of the events in §§ 68.80 or 68.111 of this chapter occurs. § 67.179 [Removed] 9. Remove § 67.179. PART 68—DOCUMENTATION OF VESSELS: EXCEPTIONS TO COASTWISE QUALIFICATION 10. Revise the authority citation for part 68 to read as follows: Authority: 14 U.S.C. 664; 31 U.S.C. 9701; 42 U.S.C. 9118; 46 U.S.C. 2103, 2110; 46 U.S.C. app. 876; Department of Homeland Security Delegation No. 0170.1. 11. Revise the heading to part 68 to read as shown above. Subpart 68.03 [Removed] 12. Remove subpart 68.03. 13. In part 68— a. Redesignate the subparts and their appendices as shown in the following table: Old subpart/appendix New subpart/appendix Subpart 68.01 Subpart A. Appendix A to Subpart 68.01 of Part 68 Appendix A to Subpart A of Part 68. Appendix B to Subpart 68.01 of Part 68 Appendix B to Subpart A of Part 68. Subpart 68.03 [Removed]. Subpart 68.05 Subpart B. Appendix A to Subpart 68.05 of Part 68 Appendix A to Subpart B of Part 68. Appendix B to Subpart 68.05 of Part 68 Appendix B to Subpart B of Part 68. b. In the redesignated subparts, redesignate the sections as shown in the following table: Old section New section 68.01-1 68.3 68.01-3 68.5 68.01-5 68.7 68.01-7 68.9 68.01-9 68.11 68.01-11 68.13 68.01-13 68.15 68.01-15 68.17 68.01-17 68.19 68.05-1 68.25 68.05-3 68.27 68.05-5 68.29 68.05-7 68.31 68.05-9 68.33 68.05-11 68.35 68.05-13 68.37 c. In the redesignated sections listed in the first column of the following table, the reference in the second column is revised to read as shown in the third column: New section Old reference New reference 68.7 68.01-3 68.5 68.7 68.01-9(a) 68.11(a) 68.9 68.01-1 68.3 68.9 68.01-9(a) 68.11(a) 68.11 68.01-5 68.7 68.11 68.01-3(a) 68.5(a) 68.11 68.01-11 68.13 68.11 68.01-13 68.15 68.11 68.01-7 68.9 68.11 13 68.15 68.13 68.01-15 68.17 68.13 68.01-17 68.19 68.15 68.01-15 68.17 68.15 68.01-1 68.3 68.15 68.01-15(c) 68.17(c) 68.17 68.01-1 68.3 68.19 68.01-5 68.7 68.29 68.05-9 68.33 68.31 68.05-5 68.29 68.35 68.05-13 68.37 68.35 68.05-7(a) 68.31(a) 68.37 68.05-11(a) 68.35(a) 68.37 68.05-5 68.29 68.37 68.05-9 68.33 d. The table of contents for part 68 reads as follows: PART 68—DOCUMENTATION OF VESSELS: EXCEPTIONS TO COASTWISE QUALIFICATION Subpart A—Regulations for Engaging in Limited Coastwise Trade Sec. 68.1 Purpose of subpart. 68.3 Definitions for the purposes of this subpart. 68.5 Requirements for citizenship under 46 U.S.C. App. 833-1. 68.7 Qualification as an 883-1 corporation. 68.9 Qualification as a parent or subsidiary. 68.11 Cessation of qualifications. 68.13 Privileges conferred—documentation of vessels. 68.15 Privileges conferred—operation of vessels. 68.17 Restrictions. 68.19 Application by an 883-1 corporation to document a vessel. Appendix A to Subpart A of Part 68—Oath for the Qualification of Corporation as a Citizen of the United States Under the Act of Sept. 2, 1958 (46 U.S.C. 883-1) Appendix B to Subpart A of Part 68—Oath of Parent or Subsidiary Corporation Act of September 2, 1958 (46 U.S.C. 883-1) Subpart B—Documentation of Certain Vessels for Oil Spill Cleanup 68.25 Purpose and scope. 68.27 Definitions for purpose of this subpart. 68.29 Citizenship requirements for limited coastwise endorsement. 68.31 Vessel eligibility requirements for limited coastwise endorsement. 68.33 Privileges of a limited coastwise endorsement. 68.35 Application to document a vessel under this subpart. 68.37 Cessation of qualifications. Appendix A to Subpart B of Part 68—Oath for Qualification of a Not-For-Profit Oil Spill Response Cooperative Appendix B to Subpart B of Part 68—Oath for Documentation of Vessels for Use by a Not-For-Profit Oil Spill Response Cooperative Subpart C—Vessels With a Coastwise Endorsement Issued on or After August 9, 2004, That Are Demised Chartered to Coastwise Qualified Citizens 68.50 Purpose and applicability. 68.55 Definitions. 68.60 Eligibility of a vessel for a coastwise endorsement under this subpart. 68.65 Annual ownership certification. 68.70 Application procedure for vessels other than barges to be operated in coastwise trade without being documented. 68.75 Application procedure for barges to be operated in coastwise trade without being documented. 68.80 Invalidation of a coastwise endorsement. Subpart D—Vessels With a Coastwise Endorsement Issued Before August 9, 2004, and Their Replacements That Are Demise Chartered to Coastwise Qualified Citizens 68.100 Purpose and applicability. 68.103 Definitions. 68.105 Eligibility of a vessel for a coastwise endorsement under this subpart. 68.107 Application procedure for vessels other than barges to be operated in coastwise trade without being documented. 68.109 Application procedure for barges to be operated in coastwise trade without being documented. 68.111 Invalidation of a coastwise endorsement. 14. In part 68, revise the heading to subpart A to read as follows: Subpart A—Regulations for Engaging in Limited Coastwise Trade 15. Add § 68.1 to subpart A to read as follows: § 68.1 Purpose of subpart. This subpart contains citizen ownership requirements and procedures to allow documentation of vessels that do not meet the requirements of part 67 of this chapter. The requirements are for corporations engaged in a manufacturing or mineral industry in the United States. § 68.7 [Amended] 16. In § 68.7— a. In paragraph (b), after the redesignated number “§ 68.11(a)”, remove the words “of this subpart”; and following the words “appendix A”, add the words “of this subpart”. § 68.9 [Amended] 17. In § 68.9— a. In paragraph (a), following the words “appendix B”, add the words “of this subpart”; b. In paragraph (b), following the words “appendix B”, add the words “of this subpart”; and c. In paragraph (c), following the redesignated number “§ 68.11(a)”, remove the words “of this subpart”; and, following the words “appendix B”, add the words “of this subpart”. § 68.11 [Amended] 18. In § 68.11— a. In paragraph (a), after the redesignated number “§ 68.7”, remove the words “of this subpart”; and b. In paragraph (b), after the redesignated number “§ 68.9”, remove the words “of this subpart”. Appendix A to Subpart A of Part 68 [Amended] 19. In appendix A— a. In the appendix heading and in the text, remove the words “(46 U.S.C. 883-1)” and add, in their place, the words “(46 U.S.C. app. 883-1)”; and b. Following the word “§ 67.39(c)”, add the words “of this chapter”. Appendix B to Subpart A of Part 68 [Amended] 20. In appendix B, in the appendix heading and in the text, remove the words “(46 U.S.C. 883-1)” and add, in their place, the words “(46 U.S.C. app. 883-1)”. 21. Add new subpart C, consisting of §§ 68.50 through 68.80, to read as follows: Subpart C—Vessels With a Coastwise Endorsement Issued on or After August 9, 2004, That Are Demised Chartered to Coastwise Qualified Citizens Sec. 68.50 Purpose and applicability. 68.55 Definitions. 68.60 Eligibility of a vessel for a coastwise endorsement under this subpart. 68.65 Annual ownership certification. 68.70 Application procedure for vessels other than barges to be operated in coastwise trade without being documented. 68.75 Application procedure for barges to be operated in coastwise trade without being documented. 68.80 Invalidation of a coastwise endorsement. Subpart C—Vessels With a Coastwise Endorsement Issued on or After August 9, 2004, That Are Demised Chartered to Coastwise Qualified Citizens § 68.50 Purpose and applicability.

(a)This subpart contains requirements, in addition to those in part 67 of this chapter, for obtaining a coastwise endorsement for a U.S.-built vessel—

(1)That is owned by a person that qualifies as a citizen under §§ 67.35(a), 67.36(a), 67.37, or 67.39(a) of this chapter; and

(2)That is demise chartered to a coastwise qualified citizen under §§ 67.33, 67.35(c), 67.36(c), 67.37, 67.39(c), or 67.41 of this chapter.

(b)This subpart applies to a vessel with a coastwise endorsement issued on or after August 9, 2004. It does not apply to a vessel under subpart D of this part. § 68.55 Definitions. In addition to the terms defined in § 67.3 of this chapter, as used in this subpart— *Affiliate* means, with respect to any person, any other person that is—

(1)Directly or indirectly controlled by, under common control with, or controlling that person; or

(2)Named as being part of the same consolidated group in any report or other document submitted to the United States Securities and Exchange Commission or the Internal Revenue Service. *Cargo* does not include cargo to which title is held for non-commercial reasons and primarily for the purpose of evading the requirements of § 68.65(a)(2). *Oil* has the meaning given that term in 46 U.S.C. 2101(20). *Operation or management* , for vessels, means all activities related to the use of vessels to provide services. These activities include, but are not limited to, ship agency; ship brokerage; activities performed by a vessel operator or demise charterer in exercising direction and control of a vessel, such as crewing, victualing, storing, and maintaining the vessel and ensuring its safe navigation; and activities associated with controlling the use and employment of the vessel under a time charter or other use agreement. It does not include activities directly associated with making financial investments in vessels or the receipt of earnings derived from these investments. *Passive investment* means an investment in which neither the investor nor any affiliate of the investor is involved in, or has the power to be involved in, the formulation, determination, or direction of any activity or function concerning the use, operation, or management of the asset that is the subject of the investment. *Qualified proprietary cargo* means—

(1)Oil, petroleum products, petrochemicals, or liquefied natural gas cargo that is beneficially owned by the person who submits to the Director, National Vessel Documentation Center, an application or annual certification under § 68.65(a)(2), or by an affiliate of that person, immediately before, during, or immediately after the cargo is carried in coastwise trade on a vessel owned by that person;

(2)Oil, petroleum products, petrochemicals, or liquefied natural gas cargo not beneficially owned by the person who submits to the Director, National Vessel Documentation Center, an application or an annual certification under § 68.65(a)(2), or by an affiliate of that person, but that is carried in coastwise trade by a vessel owned by that person and which is part of an arrangement in which vessels owned by that person and at least one other person are operated collectively as one fleet, to the extent that an equal amount of oil, petroleum products, petrochemicals, or liquefied natural gas cargo beneficially owned by that person, or an affiliate of that person, is carried in coastwise trade on one or more other vessels, not owned by that person, or an affiliate of that person, if the other vessel or vessels are also part of the same arrangement;

(3)In the case of a towing vessel associated with a non-self-propelled tank vessel where the two vessels function as a single self-propelled vessel, oil, petroleum products, petrochemicals, or liquefied natural gas cargo that is beneficially owned by the person who owns both the towing vessel and the non-self-propelled tank vessel, or any United States affiliate of that person, immediately before, during, or immediately after the cargo is carried in coastwise trade on either of the two vessels; or

(4)Any oil, petroleum products, petrochemicals, or liquefied natural gas cargo carried on any vessel that is either a self-propelled tank vessel having a length of at least 210 meters (about 689 feet) or a tank vessel that is a liquefied natural gas carrier that—

(i)Was delivered by the builder of the vessel to the owner of the vessel after December 31, 1999; and

(ii)Was purchased by a person for the purpose, and with the reasonable expectation, of transporting on the vessel liquefied natural gas or unrefined petroleum beneficially owned by the owner of the vessel, or an affiliate of the owner, from Alaska to the continental United States. *Sub-charter* means all types of charters or other contracts for the use of a vessel that are subordinate to a charter. The term includes, but is not limited to, a demise charter, a time charter, a voyage charter, a space charter, and a contract of affreightment. *United States affiliate* means, with respect to any person, an affiliate the principal place of business of which is located in the United States. § 68.60 Eligibility of a vessel for a coastwise endorsement under this subpart.

(a)To be eligible for a coastwise endorsement under 46 U.S.C. 12106(e) and to operate in coastwise trade under 46 U.S.C. 12106(e) and 12110(b), a vessel must meet the following:

(1)The vessel is eligible for documentation under 46 U.S.C. 12102.

(2)The vessel is eligible for a coastwise endorsement under § 67.19(c) of this chapter and has not lost coastwise eligibility under § 67.19(d) of this chapter.

(3)The person that owns the vessel (or, if the vessel is owned by a trust or similar arrangement, the beneficiary of the trust or similar arrangement) makes the certification in § 68.65.

(4)The person that owns the vessel has transferred to a qualified U.S. citizen under 46 U.S.C. app. 802 full possession, control, and command of the vessel through a demise charter in which the demise charterer is considered the owner *pro hac vice* during the term of the charter.

(5)The charterer must certify to the Director, National Vessel Documentation Center, that the charterer is a citizen of the United States for engaging in the coastwise trade under 46 U.S.C. app. 802.

(6)The demise charter is for a period of at least 3 years, unless a shorter period is authorized by the Director, National Vessel Documentation Center, under circumstances such as—

(i)When the vessel's remaining life would not support a charter of 3 years; or

(ii)To preserve the use or possession of the vessel.

(b)To apply for a coastwise endorsement for a vessel under a demise charter, see § 68.70 and, for a barge, see § 68.75. Note to § 68.60: Section 608(b) of Public Law 108-293 provides special requirements for certain vessels in the Alaska trade. § 68.65 Annual ownership certification.

(a)At the time of initial application for documentation and at the time for annual renewal of the endorsement as required by § 67.163 of this chapter, the person that owns a vessel with a coastwise endorsement under § 68.60 must certify in writing to the Director, National Vessel Documentation Center—

(1)That the person who owns a vessel with a coastwise endorsement under § 68.60—

(i)Is a leasing company, bank, or financial institution;

(ii)Owns, or holds the beneficial interest in, the vessel solely as a passive investment;

(iii)Does not operate any vessel for hire and is not an affiliate of any person who operates any vessel for hire; and

(iv)Is independent from, and not an affiliate of, any charterer of the vessel or any other person who has the right, directly or indirectly, to control or direct the movement or use of the vessel.

(2)For vessels under paragraph

(b)of this section, that—

(i)The aggregate book value of the vessels owned by that person and United States affiliates of that person does not exceed 10 percent of the aggregate book value of all assets owned by that person and its United States affiliates;

(ii)Not more than 10 percent of the aggregate revenues of that person and its United States affiliates is derived from the ownership, operation, or management of vessels;

(iii)At least 70 percent of the aggregate tonnage of all cargo carried by all vessels owned by that person and its United States affiliates and documented under 46 U.S.C. 12106 is qualified proprietary cargo;

(iv)Any cargo other than qualified proprietary cargo carried by all vessels owned by that person and its United States affiliates and documented under 46 U.S.C. 12106 consists of oil, petroleum products, petrochemicals, or liquified natural gas;

(v)No vessel owned by that person or any of its United States affiliates and documented under 46 U.S.C. 12106 carries molten sulphur; and

(vi)That person owned one or more vessels documented as of August 9, 2004, under § 67.20, as that section was in effect on that date.

(b)Paragraph (a)(2) of this section applies only to—

(1)A tank vessel having a tonnage of not less than 6,000 gross tons, as measured under 46 U.S.C. 14502 (or an alternative tonnage measured under 46 U.S.C. 14302 as prescribed under 46 U.S.C. 14104); or

(2)A towing vessel associated with a non-self-propelled tank vessel that meets the requirements of paragraph (b)(1) of this section, where the two vessels function as a single self-propelled vessel. Note to § 68.65: The Secretary of Transportation may waive or reduce the qualified proprietary cargo requirement of § 68.65(a)(2)(iii) for a vessel if the person that owns the vessel (or, if the vessel is owned by a trust or similar arrangement, the beneficiary of the trust or similar arrangement) notifies the Secretary that circumstances beyond the direct control of the person that owns the vessel or its affiliates prevent, or reasonably threaten to prevent, the person that owns the vessel from satisfying this requirement, and the Secretary does not, with good cause, determine otherwise. The waiver or reduction applies during the period of time that the circumstances exist. § 68.70 Application procedure for vessels other than barges to be operated in coastwise trade without being documented.

(a)The person that owns the vessel (other than a barge under § 68.75) and that seeks a coastwise endorsement under § 68.60 must submit the following to the National Vessel Documentation Center:

(1)Application for Initial Issue, Exchange, or Replacement of Certificate of Documentation; or Redocumentation (form CG-1258);

(2)Title evidence, if applicable;

(3)Mortgagee consent on form CG-4593, if applicable;

(4)If the application is for replacement of a mutilated document or for exchange of documentation, the outstanding Certificate of Documentation;

(5)The certification required by § 68.65(a)(1) or, if a vessel under § 68.65(b), the certification required by § 68.65(a)(2);

(6)A certification in the form of an affidavit and, if requested by the Director, National Vessel Documentation Center, supporting documentation establishing the following facts with respect to the transaction from an individual who is authorized to provide certification on behalf of the person that owns the vessel and who is an officer in a corporation, a partner in a partnership, a member of the board of managers in a limited liability company, or their equivalent. The certificate must certify that the person that owns the vessel has transferred to a qualified United States citizen under 46 U.S.C. app. 802 full possession, control, and command of the U.S.-built vessel through a demise charter in which the demise charterer is considered the owner *pro hac vice* during the term of the charter.

(7)A copy of the charter, which must provide that the charterer is deemed to be the owner *pro hac vice* for the term of the charter.

(b)The charterer must submit the following to the National Vessel Documentation Center:

(1)A certificate certifying that the charterer is a citizen of the United States for the purpose of engaging in the coastwise trade under 46 U.S.C. app. 802.

(2)Detailed citizenship information in the format of form CG-1258, Application for Documentation, section G, citizenship. The citizenship information may be attached to the form CG-1258 that is submitted under paragraph (a)(1) of this section and must be signed by, or on behalf of, the charterer.

(c)Whenever a charter submitted under paragraph (a)(7) of this section is amended, the vessel owner must file a copy of the amendment with the Director, National Vessel Documentation Center, within 10 days after the effective date of the amendment.

(d)Whenever the charterer of a vessel under paragraph

(a)of this section enters into a sub-charter that is a demise charter with another person for the use of the vessel, the charterer must file a copy of the sub-charter and amendments to the sub-charter with the Director, National Vessel Documentation Center, within 10 days after the effective date of the sub-charter and the sub-charterer must provide detailed citizenship information in the format of form CG-1258, Application for Documentation, section G, citizenship.

(e)Whenever the charterer of a vessel under paragraph

(a)of this section enters into a sub-charter other than a demise charter with another person for the use of the vessel, the charterer must file a copy of the sub-charter and amendments to the sub-charter with the Director, National Vessel Documentation Center, within 10 days after a request by the Director to do so.

(f)A person that submits a false certification under this section is subject to penalty under 46 U.S.C. 12122 and 18 U.S.C. 1001. § 68.75 Application procedure for barges to be operated in coastwise trade without being documented.

(a)The person that owns a barge qualified to engage in coastwise trade must submit the following to the National Vessel Documentation Center:

(1)The certification required by § 68.65(a)(1) or (a)(2).

(2)A certification in the form of an affidavit and, if requested by the Director, National Vessel Documentation Center, supporting documentation establishing the following facts with respect to the transaction from an individual who is authorized to provide certification on behalf of the person that owns the barge and who is an officer in a corporation, a partner in a partnership, a member of the board of managers in a limited liability company, or their equivalent. The certificate must certify the following:

(i)That the person that owns the barge is organized under the laws of the United States or a State.

(ii)That the person that owns the barge has transferred to a qualified United States citizen under 46 U.S.C. app. 802 full possession, control, and command of the U.S.-built barge through a demise charter in which the demise charterer is considered the owner *pro hac vice* during the term of the charter.

(iii)That the barge is qualified to engage in the coastwise trade and that it is owned by a person eligible to own vessels documented under 46 U.S.C. 12102(e).

(3)A copy of the charter, which must provide that the charterer is deemed to be the owner *pro hac vice* for the term of the charter.

(b)The charterer must submit the following to the National Vessel Documentation Center:

(1)A certificate certifying that the charterer is a citizen of the United States for engaging in the coastwise trade under 46 U.S.C. app. 802.

(2)Detailed citizenship information in the format of form CG-1258, Application for Documentation, section G, citizenship. The citizenship information must be signed by, or on behalf of, the charterer.

(c)Whenever a charter under paragraph

(a)of this section is amended, the barge owner must file a copy of the amendment with the Director, National Vessel Documentation Center, within 10 days after the effective date of the amendment.

(d)Whenever the charterer of a barge under paragraph

(a)of this section enters into a sub-charter that is a demise charter with another person for the use of the barge, the charterer must file a copy of the sub-charter and amendments to the sub-charter with the Director, National Vessel Documentation Center, within 10 days after the effective date of the sub-charter and the sub-charterer must provide detailed citizenship information in the format of form CG-1258, Application for Documentation, section G, citizenship.

(e)Whenever the charterer of a barge under paragraph

(a)of this section enters into a sub-charter other than a demise charter with another person for the use of the barge, the charterer must file a copy of the sub-charter and amendments to the sub-charter with the Director, National Vessel Documentation Center, within 10 days after a request by the Director to do so.

(f)A person that submits a false certification under this section is subject to penalty under 46 U.S.C. 12122 and 18 U.S.C. 1001. § 68.80 Invalidation of a coastwise endorsement. In addition to the events in § 67.167(c)(1) through (c)(9) of this chapter, a Certificate of Documentation together with a coastwise endorsement under this subpart becomes invalid when—

(a)The owner fails to make the certification required by § 68.65 or ceases to meet the requirements of the certification on file;

(b)The demise charter expires or is transferred to another charterer; or

(c)The citizenship of the charterer or sub-charterer changes to the extent that they are no longer qualified for a coastwise endorsement. 22. Add new subpart D, consisting of §§ 68.100 through 68.111, to read as follows: Subpart D—Vessels With a Coastwise Endorsement Issued Before August 9, 2004, and Their Replacements That Are Demise Chartered to Coastwise Qualified Citizens Sec. 68.100 Purpose and applicability. 68.103 Definitions. 68.105 Eligibility of a vessel for a coastwise endorsement under this subpart. 68.107 Application procedure for vessels other than barges to be operated in coastwise trade without being documented. 68.109 Application procedure for barges to be operated in coastwise trade without being documented. 68.111 Invalidation of a coastwise endorsement. Subpart D—Vessels With a Coastwise Endorsement Issued Before August 9, 2004, and Their Replacements That Are Demised Chartered to Coastwise-Qualified Citizens § 68.100 Purpose and applicability.

(a)This subpart contains requirements for the documentation of U.S.-built vessels in the coastwise trade that were granted special rights under the Coast Guard and Maritime Transportation Action of 2004 (Pub. L. 108-293).

(b)This subpart applies to—

(1)A vessel under a demise charter that was eligible for, and received, a document with a coastwise endorsement under § 67.19 of this chapter and 46 U.S.C. 12106(e) before August 9, 2004;

(2)A barge deemed eligible under 46 U.S.C. 12106(e) and 12110(b) to operate in coastwise trade without being documented before August 9, 2004; and

(3)A replacement vessel of a similar size and function for any vessel under paragraphs (b)(1) through (b)(3) of this section.

(c)Except for vessels under paragraph

(d)of this section, this subpart applies to a certificate of documentation, or renewal of one, endorsed with a coastwise endorsement for a vessel under 46 U.S.C. 12106(e) or a replacement vessel of a similar size and function that was issued before August 9, 2004, as long as the vessel is owned by the person named in the certificate, or by a subsidiary or affiliate of that person, and the controlling interest in the owner has not been transferred to a person that was not an affiliate of the owner as of August 9, 2004.

(d)With respect to offshore supply vessels with a certificate of documentation endorsed with a coastwise endorsement as of August 9, 2004, this subpart applies until August 9, 2007. On and after August 9, 2007, subpart C of this part applies to these vessels. § 68.103 Definitions. In addition to the terms defined in § 67.3 of this chapter, as used in this subpart— *Affiliate* means a person that is less than 50 percent owned or controlled by another person. *Group* means the person that owns a vessel, the parent of that person, and all subsidiaries and affiliates of the parent of that person. *Offshore supply vessel* means a motor vessel of more than 15 gross tons but less than 500 gross tons as measured under 46 U.S.C. 14502, or an alternate tonnage measured under 46 U.S.C. 14302 as prescribed under 46 U.S.C. 14104, that regularly carries goods, supplies, individuals in addition to the crew, or equipment in support of exploration, exploitation, or production of offshore mineral or energy resources. *Operation or management of vessels* means all activities related to the use of vessels to provide services. These activities include ship agency; ship brokerage; activities performed by a vessel operator or demise charterer in exercising direction and control of a vessel, such as crewing, victualing, storing, and maintaining the vessel and ensuring its safe navigation; and activities associated with controlling the use and employment of the vessel under a time charter or other use agreement. It does not include activities directly associated with making financial investments in vessels or the receipt of earnings derived from these investments. *Parent* means any person that directly or indirectly owns or controls at least 50 percent of another person. If an owner's parent is directly or indirectly controlled at least 50 percent by another person, that person is also a parent of the owner. Therefore, an owner may have multiple parents. *Person* means an individual; corporation; partnership; limited liability partnership; limited liability company; association; joint venture; trust arrangement; and the government of the United States, a State, or a political subdivision of the United States or a State; and includes a trustee, beneficiary, receiver, or similar representative of any of them. *Primarily engaged in leasing or other financing transactions* means lease financing, in which more than 50 percent of the aggregate revenue of a person is derived from banking, investing, lease financing, or other similar transactions. *Replacement vessel means* —

(1)A temporary replacement vessel for a period not to exceed 180 days if the vessel described in § 68.50 is unavailable due to an act of God or a marine casualty; or

(2)A permanent replacement vessel if—

(i)The vessel described in § 68.50 is unavailable for more than 180 days due to an act of God or a marine casualty; or

(ii)A contract to purchase or construct a replacement vessel is executed not later than December 31, 2004. *Sub-charter* means all types of charters or other contracts for the use of a vessel that are subordinate to a charter. The term includes, but is not limited to, a demise charter, a time charter, a voyage charter, a space charter, and a contract of affreightment. *Subsidiary* means a person at least 50 percent of which is directly or indirectly owned or controlled by another person. § 68.105 Eligibility of a vessel for a coastwise endorsement under this subpart.

(a)Except as under paragraphs

(b)through

(e)of this section, to be eligible for a coastwise endorsement under 46 U.S.C. 12106(e) and to operate in coastwise trade under 46 U.S.C. 12106(e) and 12110(b), a vessel under a demise charter must meet the following:

(1)The vessel is eligible for documentation under 46 U.S.C. 12102.

(2)The vessel is eligible for a coastwise endorsement under § 67.19(c) of this chapter, has not lost coastwise eligibility under § 67.19(d) of this chapter, and was financed with lease financing.

(3)The person that owns the vessel, the parent of that person, or a subsidiary of the parent of that person is primarily engaged in leasing or other financing transactions.

(4)The person that owns the vessel is organized under the laws of the United States or of a State.

(5)None of the following is primarily engaged in the direct operation or management of vessels:

(i)The person that owns the vessel.

(ii)The parent of the person that owns the vessel.

(iii)The group of which the person that owns the vessel is a member.

(6)The ownership of the vessel is primarily a financial investment without the ability and intent to directly or indirectly control the vessel's operations by a person not primarily engaged in the direct operation or management of vessels.

(7)The majority of the aggregate revenues of each of the following is not derived from the operation or management of vessels:

(i)The person that owns the vessel.

(ii)The parent of the person that owns the vessel.

(iii)The group of which the person that owns the vessel is a member.

(8)None of the following is primarily engaged in the operation or management of commercial, foreign-flag vessels used for the carriage of cargo for parties unrelated to the vessel's owner or charterer:

(i)The person that owns the vessel.

(ii)The parent of the person that owns the vessel.

(iii)The group of which the person that owns the vessel is a member.

(9)The person that owns the vessel has transferred to a qualified U.S. citizen under 46 U.S.C. app. 802 full possession, control, and command of the U.S.-built vessel through a demise charter in which the demise charterer is considered the owner *pro hac vice* during the term of the charter.

(10)The charterer must certify to the Director, National Vessel Documentation Center, that the charterer is a citizen of the United States for engaging in the coastwise trade under 46 U.S.C. app. 802.

(11)The demise charter is for a period of at least 3 years, unless a shorter period is authorized by the Director, National Vessel Documentation Center, under circumstances such as—

(i)When the vessel's remaining life would not support a charter of 3 years; or

(ii)To preserve the use or possession of the vessel.

(b)A vessel under a demise charter that was eligible for, and received, a document with a coastwise endorsement under § 67.19 of this chapter and 46 U.S.C. 12106(e) before August 9, 2004, may continue to operate under that endorsement on and after that date and may renew the document and endorsement if the certificate of documentation is not subject to—

(1)Exchange under § 67.167(b)(1) through (b)(3) of this chapter;

(2)Deletion under § 67.171(a)(1) through (a)(6) of this chapter; or

(3)Cancellation under § 67.173 of this chapter.

(c)A vessel under a demise charter that was constructed under a building contract that was entered into before February 4, 2004, in reliance on a letter ruling from the Coast Guard issued before February 4, 2004, is eligible for documentation with a coastwise endorsement under § 67.19 of this chapter and 46 U.S.C. 12106(e). The vessel may continue to operate under that endorsement and may renew the document and endorsement if the certificate of documentation is not subject to—

(1)Exchange under § 67.167(b)(1) through (b)(3) of this chapter;

(2)Deletion under § 67.171(a)(1) through (a)(6) of this chapter; or

(3)Cancellation under § 67.173 of this chapter.

(d)A barge deemed eligible under 46 U.S.C. 12106(e) and 12110(b) to operate in coastwise trade before August 9, 2004, may continue to operate in that trade after that date unless—

(1)The ownership of the barge changes in whole or in part;

(2)The general partners of a partnership owning the barge change by addition, deletion, or substitution;

(3)The State of incorporation of any corporate owner of the barge changes;

(4)The barge is placed under foreign flag;

(5)Any owner of the barge ceases to be a citizen within the meaning of part 67, subpart C, of this chapter; or

(6)The barge ceases to be capable of transportation by water.

(e)A barge under a demise charter that was constructed under a building contract that was entered into before February 4, 2004, in reliance on a letter ruling from the Coast Guard issued before February 4, 2004, is eligible to operate in coastwise trade under 46 U.S.C. 12106(e) and 12110(b). The barge may continue to operate in coastwise trade unless—

(1)The ownership of the barge changes in whole or in part;

(2)The general partners of a partnership owning the barge change by addition, deletion, or substitution;

(3)The State of incorporation of any corporate owner of the barge changes;

(4)The barge is placed under foreign flag;

(5)Any owner of the barge ceases to be a citizen within the meaning of subpart C of this part; or

(6)The barge ceases to be capable of transportation by water. § 68.107 Application procedure for vessels other than barges to be operated in coastwise trade without being documented.

(a)In addition to the items under § 67.141 of this chapter, the person that owns the vessel (other than a barge under § 68.109) and that seeks a coastwise endorsement under this subpart must submit the following to the National Vessel Documentation Center:

(1)A certification in the form of an affidavit and, if requested by the Director, National Vessel Documentation Center, supporting documentation establishing the following facts with respect to the transaction from an individual who is authorized to provide certification on behalf of the person that owns the vessel and who is an officer in a corporation, a partner in a partnership, a member of the board of managers in a limited liability company, or their equivalent. The certificate must certify the following:

(i)That the person that owns the vessel, the parent of that person, or a subsidiary of a parent of that person is primarily engaged in leasing or other financing transactions.

(ii)That the person that owns the vessel is organized under the laws of the United States or a State.

(iii)That none of the following is primarily engaged in the direct operation or management of vessels:

(A)The person that owns the vessel.

(B)The parent of the person that owns the vessel.

(C)The group of which the person that owns the vessel is a member.

(iv)That ownership of the vessel is primarily a financial investment without the ability and intent to directly or indirectly control the vessel's operations by a person not primarily engaged in the direct operation or management of vessels.

(v)That the majority of the aggregate revenues of each of the following is not derived from the operation or management of vessels:

(A)The person that owns the vessel.

(B)The parent of the person that owns the vessel.

(C)The group of which the person that owns the vessel is a member.

(vi)That none of the following is primarily engaged in the operation or management of commercial, foreign-flag vessels used for the carriage of cargo for parties unrelated to the vessel's owner or charterer:

(A)The person that owns the vessel.

(B)The parent of the person that owns the vessel.

(C)The group of which the person that owns the vessel is a member.

(vii)That the person that owns the vessel has transferred to a qualified United States citizen under 46 U.S.C. app. 802 full possession, control, and command of the U.S.-built vessel through a demise charter in which the demise charterer is considered the owner *pro hac vice* during the term of the charter.

(viii)That the vessel is financed with lease financing.

(2)A copy of the charter, which must provide that the charterer is deemed to be the owner *pro hac vice* for the term of the charter.

(b)The charterer must submit the following to the National Vessel Documentation Center:

(1)A certificate certifying that the charterer is a citizen of the United States for the purpose of engaging in the coastwise trade under 46 U.S.C. app. 802.

(2)Detailed citizenship information in the format of form CG-1258, Application for Documentation, section G, citizenship. The citizenship information may be attached to the form CG-1258 that is submitted under § 67.141 of this chapter and must be signed by, or on behalf of, the charterer.

(c)Whenever a charter under paragraph

(a)of this section is amended, the vessel owner must file a copy of the amendment with the Director, National Vessel Documentation Center, within 10 days after the effective date of the amendment.

(d)Whenever the charterer of a vessel under paragraph

(e)Whenever the charterer of a vessel under paragraph

(f)A person that submits a false certification under this section is subject to penalty under 46 U.S.C. 12122 and 18 U.S.C. 1001. § 68.109 Application procedure for barges to be operated in coastwise trade without being documented.

(a)The person that owns a barge qualified to engage in coastwise trade under the lease-financing provisions of 46 U.S.C. 12106(e) must submit the following to the National Vessel Documentation Center:

(1)A certification in the form of an affidavit and, if requested by the Director, National Vessel Documentation Center, supporting documentation establishing the following facts with respect to the transaction from an individual who is authorized to provide certification on behalf of the person that owns the barge and who is an officer in a corporation, a partner in a partnership, a member of the board of managers in a limited liability company, or their equivalent. The certificate must certify the following:

(i)That the person that owns the barge, the parent of that person, or a subsidiary of the parent of that person is primarily engaged in leasing or other financing transactions.

(ii)That the person that owns the barge is organized under the laws of the United States or a State.

(iii)That none of the following is primarily engaged in the direct operation or management of vessels:

(A)The person that owns the barge.

(B)The parent of the person that owns the barge.

(C)The group of which the person that owns the barge is a member.

(iv)That ownership of the barge is primarily a financial investment without the ability and intent to directly or indirectly control the barge's operations by a person not primarily engaged in the direct operation or management of the barge.

(v)That the majority of the aggregate revenues of each of the following is not derived from the operation or management of vessels:

(A)The person that owns the barge.

(B)The parent of the person that owns the barge.

(C)The group of which the person that owns the barge is a member.

(A)The person that owns the barge.

(B)The parent of the person that owns the barge.

(C)The group of which the person that owns the barge is a member.

(vii)That the person that owns the barge has transferred to a qualified United States citizen under 46 U.S.C. app. 802 full possession, control, and command of the U.S.-built barge through a demise charter in which the demise charterer is considered the owner *pro hac vice* for the term of the charter.

(viii)That the barge is qualified to engage in the coastwise trade and that it is owned by a person eligible to own vessels documented under 46 U.S.C. 12102(e).

(ix)That the barge is financed with lease financing.

(2)A copy of the charter, which must provide that the charterer is deemed to be the owner *pro hac vice* for the term of the charter.

(b)The charterer must submit the following to the National Vessel Documentation Center:

(1)A certificate certifying that the charterer is a citizen of the United States for engaging in the coastwise trade under 46 U.S.C. app. 802.

(c)Whenever a charter under paragraph

(a)of this section is amended, the barge owner must file a copy of the amendment with the Director, National Vessel Documentation Center, within 10 days after the effective date of the amendment.

(d)Whenever the charterer of a barge under paragraph

(e)Whenever the charterer of a barge under paragraph

(f)A person that submits a false certification under this section is subject to penalty under 46 U.S.C. 12122 and 18 U.S.C. 1001. § 68.111 Invalidation of a coastwise endorsement.

(a)In addition to the events in § 67.167(c)(1) through (c)(9) of this chapter, a Certificate of Documentation together with a coastwise endorsement in effect before February 4, 2004, becomes invalid when—

(1)The demise charter expires or is transferred to another charterer;

(2)The citizenship of the charterer or sub-charterer changes to the extent that they are no longer qualified for a coastwise endorsement; or

(3)Neither the person that owns the vessel, nor the parent of that person, nor a subsidiary of the parent of that person is primarily engaged in leasing or other financing transactions.

(b)In addition to the events in § 67.167(c)(1) through (c)(9) of this chapter, a Certificate of Documentation together with a coastwise endorsement in effect on or after February 4, 2004, and before August 9, 2004, becomes invalid when—

(1)The demise charter expires or is transferred to another charterer;

(2)The citizenship of the charterer or sub-charterer changes to the extent that they are no longer qualified for a coastwise endorsement;

(3)Neither the person that owns the vessel, nor the parent of that person, nor any subsidiary of the parent of that person is primarily engaged in leasing or other financing transactions;

(4)The majority of the aggregate revenues of at least one of the following is derived from the operation or management of vessels:

(i)The person that owns the vessel.

(ii)The parent of the person that owns the vessel.

(iii)The group of which the person that owns the vessel is a member; or

(5)At least one of the following is primarily engaged in the operation or management of commercial, foreign-flag vessels used for the carriage of cargo for parties unrelated to the vessel's owner or charterer:

(i)The person that owns the vessel.

(ii)The parent of the person that owns the vessel.

(iii)The group of which the person that owns the vessel is a member.

(c)When the coastwise endorsement for a vessel to which this subpart applies becomes invalid under paragraph (a)(1) or (b)(1) of this section, the vessel remains eligible for documentation under this subpart provided it is a vessel to which § 68.100(b) or

(c)applies. Dated: October 6, 2006. B.M. Salerno, Rear Admiral, U.S. Coast Guard, Acting Assistant Commandant for Prevention. [FR Doc. E6-17037 Filed 10-17-06; 8:45 am] BILLING CODE 4910-15-P FEDERAL COMMUNICATIONS COMMISSION 47 CFR Part 73 [DA 06-1906; MB Docket No. 04-20; RM-10842, RM-11128, RM-11129, RM-11130] Radio Broadcasting Services; Cambridge, MD, Chincoteague, VA; Newark, St. Michaels, and Stockton, MD AGENCY: Federal Communications Commission. ACTION: Final rule; denial of petition for reconsideration. SUMMARY: In response to a petition for reconsideration of a *Report and Order* , this *Memorandum Opinion and Order* denies a request by CWA Broadcasting, Inc. (“Petitioner”), the licensee of Station WINX-FM, St. Michaels, Maryland, to upgrade its present Channel 232A to Channel 232B1, reallot Channel 232B1 to Cambridge, and modify Station WINX-FM's license accordingly. The *Memorandum Opinion and Order* also denies the Petitioner's alternative request to allot Channel 232B1 to Oxford, Maryland, and to change Petitioner's community of license from St. Michaels to Oxford, Maryland, as untimely and in contravention of Section 1.420(d) of the Commission's Rules. ADDRESSES: Federal Communications Commission, 445 12th Street, SW., Washington, DC 20554. FOR FURTHER INFORMATION CONTACT: R. Barthen Gorman, Media Bureau,

(202)418-2180. SUPPLEMENTARY INFORMATION: This is a synopsis of the Commission's *Memorandum Opinion and Order* , MB Docket No. 04-20, adopted September 20, 2006, and released September 22, 2006. The full text of this Commission decision is available for inspection and copying during normal business hours in the FCC's Reference Information Center at Portals II, 445 12th Street, SW., Room CY-A257, Washington, DC 20554. The document may also be purchased from the Commission's duplicating contractor, Best Copy and Printing, Inc., Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC 20554, telephone 1-800-378-3160 or *http://www.BCPIWEB.com.* This document is not subject to the Congressional Review Act. The Commission is, therefore, not required to send a copy of this *Memorandum Opinion 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), because the petition for reconsideration was denied. Federal Communications Commission. John A. Karousos, Assistant Chief, Audio Division, Media Bureau. [FR Doc. E6-17349 Filed 10-17-06; 8:45 am] BILLING CODE 6712-01-P FEDERAL COMMUNICATIONS COMMISSION 47 CFR Part 73 [DA 06-1886; MB Docket No. 06-65; RM-11320; RM-11335] Radio Broadcasting Service; Alva, OK; Ashland, Greensburg, and Kinsley, KS; and Medford, and Mustang, OK AGENCY: Federal Communications Commission. ACTION: Final rule. SUMMARY: The Audio Division: grants in part a counterproposal (RM-11335) filed by Chisholm Trail Broadcasting Company (“Chisholm”) only to the extent of allotting Channel 288C3 at Kinsley, Kansas, and denying in all other respects; dismisses a Petition for Rule Making (11320) filed by OKAN Community Radio to allot Channel 288C3 at Ashland, Kansas for lack of continuing interest; and dismisses per Chisholm's request its pending Petition for Rule Making to allot *inter alia* Channel 259C1 at Greensburg, Kansas. Channel 288C3 can be allotted at Kinsley, Kansas in compliance with the Commission's minimum distance separation requirements at 37-53-20 North Latitude and 99-24-34 West Longitude with a site restriction of 3.8 kilometers (2.4 miles) south of city reference. DATES: Effective November 6, 2006. ADDRESSES: Secretary, Federal Communications Commission, 445 Twelfth Street, SW., Washington, DC 20554. FOR FURTHER INFORMATION CONTACT: Helen McLean, Media Bureau,

(202)418-2738. SUPPLEMENTARY INFORMATION: This is a synopsis of the Commission's *Report and Order* , MB Docket No. 06-65, adopted September 20, 2006, and released September 22, 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 Twelfth 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 Kinsley, Channel 288C3. Federal Communications Commission. John A. Karousos, Assistant Chief, Audio Division, Media Bureau. [FR Doc. E6-17346 Filed 10-17-06; 8:45 am] BILLING CODE 6712-01-P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 679 [Docket No. 060216045-6045-01; I.D. 101206F] Fisheries of the Exclusive Economic Zone Off Alaska; Pacific Cod by Catcher Processor Vessels Using Pot Gear in the Bering Sea and Aleutian Islands Management Area AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Temporary rule; closure. SUMMARY: NMFS is prohibiting directed fishing for Pacific cod by catcher processor vessels using pot gear in the Bering Sea and Aleutian Islands management area (BSAI). This action is necessary to prevent exceeding the 2006 directed fishing allowance

(DFA)of Pacific cod specified for catcher processor vessels using pot gear in the BSAI. DATES: Effective 1200 hrs, Alaska local time (A.l.t.), October 15, 2006, until 2400 hrs, A.l.t., December 31, 2006. FOR FURTHER INFORMATION CONTACT: Jennifer Hogan, 907-586-7228. SUPPLEMENTARY INFORMATION: NMFS manages the groundfish fishery in the BSAI according to the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area

(FMP)prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679. The 2006 Pacific cod DFA specified for catcher processor vessels using pot gear in the BSAI is 2,913 metric tons as established by the 2006 and 2007 final harvest specifications for groundfish in the BSAI (71 FR 10894, March 3, 2006) and the adjustment on March 14, 2006 (71 FR 13777, March 17, 2006). In accordance with § 679.20(d)(1)(iii), the Administrator, Alaska Region, NMFS, has determined that the 2006 Pacific cod DFA specified for catcher processor vessels using pot gear in the BSAI has been reached. Therefore, the Regional Administrator is prohibiting directed fishing for Pacific cod by catcher processor vessels using pot gear in the BSAI. After the effective date of this closure the maximum retainable amounts at § 679.20(e) and

(f)apply at any time during a trip. Classification This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the closure of Pacific cod by catcher processor vessels using pot gear in the BSAI. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of October 12, 2006. The AA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment. This action is required by § 679.20 and is exempt from review under Executive Order 12866. Authority: 16 U.S.C. 1801 *et seq.* Dated: October 12, 2006. Alan D. Risenhoover, Director, Office of Sustainable Fisheries, National Marine Fisheries Service. [FR Doc. 06-8747 Filed 10-13-06; 2:36 pm]

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Traces to 35 documents