Rules and Regulations. Notice of temporary deviation from regulations
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/register/2006/11/01/06-9007A research copy — for the controlling text, always check the official state or federal source. Not legal advice.
BILLING CODE 4910-13-P DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 117 [CGD05-06-108] RIN 1625-AA-09 Drawbridge Operation Regulations; Potomac River, Between Maryland and Virginia AGENCY: Coast Guard, DHS. ACTION: Notice of temporary deviation from regulations. SUMMARY: The Commander, Fifth Coast Guard District, has approved a temporary deviation from the regulations governing the operation of the new Woodrow Wilson Memorial (I-95) Bridge, mile 103.8, across Potomac River between Alexandria, Virginia and Oxon Hill, Maryland.
This deviation allows the new drawbridge to remain closed-to-navigation each day from 10 a.m. to 2 p.m. beginning on October 25, 2006 until and including December 24, 2006, to facilitate completion of the Outer Loop portion for the new Woodrow Wilson Bridge construction project. DATES: This deviation is effective from 10 a.m. on October 25, 2006, until 2 p.m. on December 24, 2006. ADDRESSES: Materials referred to in this document are available for inspection or copying at Commander (dpb), Fifth Coast Guard District, Federal Building, 1st Floor, 431 Crawford Street, Portsmouth, VA 23704-5004 between 8 a.m. and 4 p.m., Monday through Friday, except Federal holidays.
The telephone number is
(757)398-6222. Commander (dpb), Fifth Coast Guard District maintains the public docket for this temporary deviation. FOR FURTHER INFORMATION CONTACT: Waverly W. Gregory, Jr., Bridge Administrator, Fifth Coast Guard District, at
(757)398-6222. SUPPLEMENTARY INFORMATION: In June 2006, the southernmost portion of the bascule spans for the new Woodrow Wilson Memorial Bridge, at mile 103.8, across Potomac River between Alexandria, Virginia and Oxon Hill, Maryland was publicly placed into service, switching I-95 Northbound traffic onto the new Outer Loop portion of the bridge. The newly-constructed portion of bridge will be required to open for vessels in accordance with the current drawbridge operating regulations set out in 33 CFR 117.255(c). While the drawbridge is operational, coordinators for the construction of the new Woodrow Wilson Bridge Project indicated that the bascule span is not yet fully commissioned and the work continues through the rigorous testing phase. Opening the new bascule span for a vessel at this time would take approximately 45 minutes in a best case scenario. This has the potential to have a significant impact upon I-95 traffic, especially during the 10 a.m. to 2 p.m. bridge-opening time frame currently available for commercial vessels, in accordance with 33 CFR 117.255(c). Coordinators requested a temporary deviation from the current operating regulation for the new Woodrow Wilson Memorial (I-95) Bridge set out in 33 CFR 117.255(c). Though good progress has been made regarding commissioning of the north and south drawbridges (both now carrying I-95 vehicle traffic), the coordinators are requesting an additional two months of the 10 a.m. to 2 p.m. restriction of bridge operation to proceed with commissioning activities through December 24, 2006. From a river-user standpoint, the coordinators have received no requests from boaters or mariners to open during the 10 a.m. to 2 p.m. timeframe since the restriction was issued in late June 2006. In fact, no requests have been received for an opening of the new bridge at all since July 3, 2006. Finally, the coordinators have received no complaints on the 10 a.m. to 2 p.m. restriction. The coordinators requested that the new Outer Loop portion of the new drawbridge not be available for openings for vessels each day between the hours of 10 a.m. to 2 p.m. from Monday, October 25 through December 24, 2006 or until the bridge is properly commissioned, whichever comes first. The temporary deviation will only affect vessels with mast heights of 75 feet or greater as the existing drawbridge is able to open in accordance with the current operating regulations set out in 33 CFR 117.255(a). Management of the Federal and auxiliary channels will continue to be closely coordinated between the coordinators for the construction of the new Woodrow Wilson Bridge Project, the Coast Guard and vessels requesting transit through the construction zone. Furthermore, all affected vessels with mast heights greater than 75 feet will be able to receive an opening of the new drawbridge in the “off-peak” vehicle traffic hours (evening and overnight) in accordance with 33 CFR 117.255(c). Maintaining the new drawbridge in the closed-to-navigation position each day from 10 a.m. to 2 p.m. on October 25, 2006 through December 24, 2006 will help reduce the impact to vehicular traffic during this phase of new bridge construction. The Coast Guard has informed the known users of the waterway of the closure period for the bridge so that these vessels can arrange their transits to minimize any impact caused by the temporary deviation. 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. This deviation from the operating regulations is authorized under 33 CFR 117.35. Dated: October 20, 2006. Waverly W. Gregory, Jr., Chief, Bridge Administration Branch, Fifth Coast Guard District. [FR Doc. E6-18332 Filed 10-31-06; 8:45 am] BILLING CODE 4910-15-P DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 165 [COTP Sector St. Petersburg 06-195] RIN 1625-AA00 Safety Zone; Caloosahatchee River, FL AGENCY: Coast Guard, DHS. ACTION: Temporary final rule. SUMMARY: The Coast Guard is establishing a temporary safety zone on the waters of the Caloosahatchee River, Florida in the vicinity of the Cape Coral Bridge while repair operations are being conducted. This rule is necessary to ensure the safety of the construction workers and mariners on the navigable waters of the United States. DATES: This rule is effective from 6 a.m. on September 18 through 6 p.m. on December 22, 2006. ADDRESSES: Documents indicated in this preamble as being available in the docket are part of docket [COTP 06-195] and are available for inspection or copying at Coast Guard Sector St. Petersburg, Prevention Department, 155 Columbia Drive, Tampa, Florida 33606-3598 between 7:30 a.m. and 3:30 p.m., Monday through Friday, except Federal holidays. FOR FURTHER INFORMATION CONTACT: LT Ronaydee Marquez at Coast Guard Sector St. Petersburg
(813)228-2191 Ext 8307. SUPPLEMENTARY INFORMATION: Regulatory Information We did not publish a notice of proposed rulemaking
(NPRM)for this regulation. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing an NPRM. The Coast Guard received notification of the construction only fourteen days prior to the start of the construction, which was not enough time to publish an NPRM. Publishing an NPRM and delaying its effective date would be contrary to the public interest since immediate action is needed to minimize potential danger to the construction workers and mariners transiting the area. The Coast Guard will issue a broadcast notice to mariners to advise mariners of the restriction. For the same reasons, under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the **Federal Register** . The Coast Guard will issue a broadcast notice to mariners and a local law enforcement vessel on scene will advise mariners of the restriction. Background and Purpose Kelly Brothers construction was contracted by Lee County Department of Transportation to replace the fender system on the Cape Coral Bridge on the Caloosahatchee River. The replacement will include demolition of the existing fender piles, installation of new fender piles, and installation of the fender timbers. The replacement will require a tug and barge to be placed in the navigable channel partially blocking the channel. The unaffected portion (approximately 45 feet) will remain unobstructed and open for traffic. The nature of this work and the close proximity of the channel present a hazard to mariners transiting the area. This safety zone is being established to ensure the safety of life on the navigable waters of the United States. Discussion of Rule The safety zone encompasses the following waters of the Caloosahatchee River, Florida: all waters from surface to bottom within 5 feet of the construction barge and accompanying tug that are working on the bridge fender system during the repair hours of 7 a.m. to 6 p.m. Monday through Friday. Vessels and persons are prohibited from anchoring, mooring, or transiting within this zone, unless authorized by the Captain of the Port Sector St. Petersburg or his designated representative. The zone is effective from 6 a.m. on September 18 through 6 p.m. on December 22, 2006. Enforcement of the zone will be from 7 a.m. to 6 p.m. every Monday through Friday during the effective period. On-scene notice will be provided by local law enforcement marine units enforcing the safety zone. Regulatory Evaluation This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. We expect the economic impact of this rule to be so minimal that a full Regulatory Evaluation is unnecessary. The rule will only be enforced for a limited amount of time. Moreover, vessels may still transit the unaffected portion of the channel. Small Entities Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. This rule may affect the following entities, some of which may be small entities: the owners or operators of vessels intending to transit near the Cape Coral Bridge from 6 a.m. on September 18 through 6 p.m. on December 22, 2006. The nature of the operation will require the channel to be partially blocked, however the unaffected portion (approximately 45 feet) will remain unobstructed and open for traffic. This safety zone will not have a significant economic impact on a substantial number of small entities because this rule will be enforced in a place where marine traffic is expected to be minimal. Assistance for Small Entities Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding the rule so they can better evaluate its effects on them and participate in the rulemaking process. Small entities may contact the person listed under FOR FURTHER INFORMATION CONTACT for assistance in understanding and participating in this rulemaking. Small businesses may also send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). Collection of Information This rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). Federalism A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this rule under that Order and have determined that it does not have implications for federalism. Unfunded Mandates Reform Act The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by 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 does not create an environmental risk to health or risk to safety that may 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 does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. Energy Effects We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211. Technical Standards The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies. This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards. Environment We have analyzed this rule under Commandant Instruction M16475.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)(g), 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 in 33 CFR Part 165 Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways. For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows: PART 165—REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS 1. The authority citation for part 165 continues to read as follows: Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. Chapter 701; 50 U.S.C. 191, 195; 33 CFR 1.05-1(g), 6.04-1, 6.04-6, and 160.5; Public Law 107-295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1. 2. Add a new temporary § 165.T07-195 to read as follows: § 165.T07-195 Safety Zone; Caloosahatchee River, Florida.
(a)*Location.* The Coast Guard is establishing a temporary safety zone on the waters of the Caloosahatchee River, Florida, in the vicinity of the Cape Coral Bridge, that includes all the waters from surface to bottom, within a 5 foot radius of the construction barge and accompanying tug that are working on the bridge fender system.
(b)*Definitions.* The following definitions apply to this section: *Designated representative* means Coast Guard Patrol Commanders including Coast Guard coxswains, petty officers and other officers operating Coast Guard vessels, and federal, state, and local officers designated by or assisting the Captain of the Port
(COTP)St. Petersburg, Florida, in the enforcement of regulated navigation areas and safety and security zones.
(c)*Regulations.* In accordance with the general regulations in § 165.23 of this part, no person or vessel may anchor, moor or transit the safety zone without the prior permission of the Captain of the Port St. Petersburg, Florida, or his designated representative.
(d)*Date.* This rule is effective from 6 a.m. on September 18, 2006 through 6 p.m. on December 22, 2006 and will be enforced from 7 a.m. to 6 p.m. every Monday through Friday during the effective period. Dated: September 15, 2006. J.A. Servidio, Captain, U.S. Coast Guard, Captain of the Port St. Petersburg, Florida. [FR Doc. E6-18333 Filed 10-31-06; 8:45 am] BILLING CODE 4910-15-P DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 165 [COTP St. Petersburg 06-219] RIN 1625-AA00 Safety Zone; Sanibel Island Bridge Span A, Ft. Myers Beach, FL AGENCY: Coast Guard, DHS. ACTION: Temporary final rule. SUMMARY: The Coast Guard is establishing a temporary safety zone on the waters of San Carlos Bay, Florida in the vicinity of the Sanibel Island Bridge span “A” while bridge construction is conducted. This rule is necessary to ensure the safety of the construction workers and mariners on the navigable waters of the United States. DATES: This rule is effective from 6 a.m. on October 16, 2006 through 9 p.m. on March 31, 2007. ADDRESSES: Documents indicated in this preamble as being available in the docket are part of docket [COTP 06-219] and are available for inspection or copying at Coast Guard Sector St. Petersburg, Prevention Department, 155 Columbia Drive, Tampa Florida 33606-3598 between 7:30 a.m. and 3:30 p.m., Monday through Friday, except Federal holidays. FOR FURTHER INFORMATION CONTACT: Waterways Management Division at Coast Guard Sector St. Petersburg
(813)228-2191, Ext 8307. SUPPLEMENTARY INFORMATION: Regulatory Information We did not publish a notice of proposed rulemaking
(NPRM)for this regulation. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing an NPRM. The bridge contractor did not provide the information about the bridge construction with sufficient time to publish an NPRM. The Coast Guard did not receive the scope of work for the remaining construction until September 28, 2006 at a meeting held with the contractors. Publishing an NPRM would have been contrary to the public interest since immediate action is needed to minimize potential danger to the construction workers and mariners transiting the area. The Coast Guard will issue a broadcast notice to mariners to advise mariners of the restriction. For the same reasons, under 5 U.S.C. 553(d)(3), the Coast Guard also finds that good cause exists for making this rule effective less than 30 days after publication in the **Federal Register** . The Coast Guard will issue a broadcast notice to mariners and local law enforcement vessels will be in the vicinity of this zone to advise mariners of the restriction. Background and Purpose Boh Brothers Construction will be performing construction work on the Sanibel Island Bridge between October 2006 and March 2007. This work will involve setting girders, setting the deck, setting overhangs, placing resteel, pouring the bridge deck, and wrecking the old bridge's deck on the Sanibel Island Bridge span “A”. These operations will require placing a barge in the navigational channel. The nature of this work and the close proximity of the channel present a hazard to mariners transiting the area. This safety zone is being established to ensure the safety of life on the navigable waters of the United States. Discussion of Rule The safety zone encompasses the following waters of San Carlos Bay, Florida: All waters from surface to bottom, within a 400 foot radius of the following coordinates: 26°28′59″ N, 082°00′52″ W. Vessels are prohibited from anchoring, mooring, or transiting within this zone, unless authorized by the Captain of the Port Sector St. Petersburg or his designated representative. This rule is effective from 6 a.m. on October 16, 2006 through 9 p.m. on March 31, 2007. However, the safety zone will only be enforced from 6 a.m. until 9 p.m. daily on certain dates during that time while construction operations are occurring. The Coast Guard does not know the exact dates of the construction operations at this time, but Coast Guard Sector St. Petersburg will give notice of the enforcement of the safety zone by issuing Broadcast Notice to Mariners 24 to 48 hours prior to the start of enforcement. On-Scene notice will be provided by Coast Guard or other local law enforcement maritime units enforcing the safety zone as designated representatives of Captain of the Port Sector St. Petersburg. Regulatory Evaluation This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. We expect the economic impact of this rule to be so minimal that a full Regulatory Evaluation is unnecessary. This rule will only be enforced when vessel traffic is expected to be minimal, and traffic will be allowed to enter the zone with the permission of the Captain of the Port Sector St. Petersburg or designated representative. Small Entities Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. This rule may affect the following entities, some of which may be small entities: The owners or operators of vessels intending to transit near the Sanibel Island Bridge span “A” from 6 a.m. on October 16, 2006 through 9 p.m. on March 31, 2007. This safety zone will not have a significant economic impact on a substantial number of small entities for the following reasons. This rule will only be enforced when vessel traffic is expected to be minimal, and traffic will be allowed to enter the zone with the permission of the Captain of the Port Sector St. Petersburg or designated representative. Assistance for Small Entities Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding the rule so that they can better evaluate its effects on them and participate in the rulemaking process. Small entities may contact the office listed under FOR FURTHER INFORMATION CONTACT for assistance in understanding and participating in this rulemaking. Small businesses may also send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). Collection of Information This rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). Federalism A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this rule under that Order and have determined that it does not have implications for federalism. Unfunded Mandates Reform Act The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by 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 does not create an environmental risk to health or risk to safety that may 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 does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. Energy Effects We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211. Technical Standards The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards ( *e.g.,* specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies. This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards. Environment We have analyzed this rule under Commandant Instruction M16475.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)(g), 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 in 33 CFR Part 165 Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways. For the reasons discussed in the preamble, the Coast Guard amends 33 CFR Part 165 as follows: PART 165-REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS 1. The authority citation for part 165 continues to read as follows: Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. Chapter 701; 50 U.S.C. 191, 195; 33 CFR 1.05-1(g), 6.04-1, 6.04-6, and 160.5; Pub. L. 107-295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1. 2. Add temporary § 165.T07-219 to read as follows: § 165.T07—219 Safety Zone; Ft. Myers Beach, Florida.
(a)*Location.* The Coast Guard is establishing a temporary safety zone on the waters of San Carlos Bay, Florida, in the vicinity of the Sanibel Island Bridge span “A”. This safety zone includes all waters from surface to bottom, within a 400 foot radius extending from the center portion of span “A” at the following coordinates: 26°28′59″ N, 082°00′52″ W. All coordinates referenced use datum: NAD 83.
(b)*Definitions.* The following definitions apply to this section: *Designated representative* means Coast Guard Patrol Commanders including Coast Guard coxswains, petty officers and other officers operating Coast Guard vessels, and Federal, State, and local officers designated by or assisting the Captain of the Port Sector St. Petersburg, Florida, in the enforcement of regulated navigation areas and safety and security zones.
(c)*Regulations.* In accordance with the general regulations in § 165.23 of this part, no person or vessel may anchor, moor or transit the Regulated Area without the prior permission of the Captain of the Port Sector St. Petersburg, Florida, or his designated representative.
(d)*Dates.* This rule is effective from 6 a.m. on October 16, 2006 through 9 p.m. on March 31, 2007.
(e)*Enforcement period.* This regulated area will only be enforced during specific periods between the dates specified in paragraph (d), while construction operations are taking place. The Coast Guard does not know the exact dates of the construction operations at this time, however Sector St. Petersburg will announce each enforcement period by issuing Broadcast Notice to Mariners 24 to 48 hours prior to the start of enforcement. Additionally, on-scene notice will be provided by Coast Guard or other local law enforcement maritime units enforcing the safety zone. Dated: October 16, 2006. J.A. Servidio, Captain, U.S. Coast Guard, Captain of the Port Sector St. Petersburg, Florida. [FR Doc. E6-18392 Filed 10-31-06; 8:45 am] BILLING CODE 4910-15-P POSTAL SERVICE 39 CFR Part 111 New Standards for Mailing Sharps and Other Regulated Medical Waste Containers AGENCY: Postal Service. ACTION: Final rule. SUMMARY: The Postal Service revises the standards for mailing sharps and other regulated medical waste containers. The new standards include improvements to the packaging, the package testing, and the process for authorizing and suspending authorization. DATES: *Effective Date:* November 9, 2006. FOR FURTHER INFORMATION CONTACT: Bert Olsen, 202-268-7276. SUPPLEMENTARY INFORMATION: Background We published a proposed rule in the **Federal Register** (71 FR 19840, April 18, 2006) to revise the standards for mailing sharps and other regulated medical waste containers. Our proposal included the following changes: 1. To require container vendors to provide the Postal Service with the names and addresses of their distributors and to provide updates on a quarterly basis. 2. To revise the process for authorizing and suspending authorization for mailing sharps and other regulated medical waste containers to enhance monitoring and control of medical waste in the mail. 3. To revise container standards and container testing standards to ensure that container testing is performed on a consistent basis for all sharps and other regulated medical waste containers. Comments Received We received comments from four authorized sharps container vendors and one potential vendor. All commenters supported the concept of revising the rules to promote uniform testing methods and to ensure the integrity of mailpieces containing sharps and other medical waste. Documentation Requirements Three commenters objected to the requirement that vendors provide a list of distributors to the Postal Service. All three commenters argued that requiring vendors to provide a quarterly list of distributors could lead to disclosure of sensitive proprietary vendor information. We agree that the Postal Service can identify a vendor's distributors, if needed, by requiring vendors to provide this information on request. Therefore, the final rule requires vendors to provide the names, addresses, and telephone numbers of their distributors to the Postal Service only on request. Packaging One commenter objected to a minimum size limit for the biohazard symbol placed on the outer shipping container. The commenter stated that requiring a 3 inch by 4 inch symbol would be excessively large on a small mailpiece. The Postal Service notes that currently no approved medical waste mailpieces are so small as to not easily accommodate a 3 inch by 4 inch biohazard symbol. The new standard will clarify that the 3 inch by 4 inch label requirement applies to the outer shipping container. For safety reasons, medical waste containers must be easily identified as containing biohazardous materials. Therefore, this final rule adopts the standard as published in the proposal. Three commenters did not want the Postal Service to eliminate the use of outer shipping containers with interlocking bottoms. All three commenters stated that current requirements that allow for the use of shipping containers with interlocking bottom flaps reinforced with tape are more than adequate, especially considering the overall rigorous testing mandates. After further consultation with package testing professionals, we conclude that interlocking bottom flaps sufficiently contain the primary receptacle, particularly when reinforced with tape. Therefore, we will maintain our current standards that allow interlocking bottoms when they are reinforced with water-resistant tape. Two commenters requested clarification of the proposed changes to the secondary container requirements. The commenters stated that increasing the plastic bag thickness requirement from 3 mil to 4 mil was not necessary. In addition, they stated that it was not advantageous to require the plastic bag to be placed around the secondary box. We believe that increasing the thickness of the plastic bag will help maintain the contents of the primary container should it break. Therefore, we will require plastic bags to be 4 mil thick. However, we will not require the plastic bag to be placed outside the secondary box. Two commenters requested clarification of the proposed standards in section 601.10.17.7b4 of Mailing Standards of the United States Postal Service, Domestic Mail Manual (DMM). We revised this section to clarify that the absorbent material must be placed in the primary receptacle. Item e10 will serve as the required test to ensure that the secondary system is watertight. One commenter suggested that the Postal Service require screw caps for primary containers. Historical data on safely mailing these mailpieces does not indicate a need to require screw caps. Therefore, this final rule adopts the standard as published in the proposal. Mailpiece Testing One commenter objected to the requirement that mailpieces be tested at the vendor's identified maximum weight and that the container's maximum allowable weight be printed on the outer shipping container. The commenter stated that it was impossible to predict the maximum weight of the materials that might be placed into a container and that end users would not have scales to weigh the mailpiece. We believe, in the interest of safety, that these mailpieces should be tested at the highest possible weight determined by the vendor, not to exceed 25 pounds, to ensure that the mailpiece can safely contain the maximum weight. Therefore, this final rule adopts the requirements as published in the proposal. One commenter suggested that the Postal Service require accreditation of package testing facilities. Section 601.10.17.7d of the proposed rule states “the Postal Service may require proof of accreditation or other documentation to support the credentials of an independent testing facility.” We believe that this standard provides the authority to require proof of credentials as necessary. Therefore, this final rule adopts the standard as published in the proposal. One commenter questioned the need for a reference to 49 CFR 178.604, Leak-proof test. The commenter stated that we should not refer to the test because our pass/fail criteria were not the same as the criteria in 49 CFR. The test in 49 CFR 178.604 requires that the primary container hold 20 kPa without leakage. Our criteria allow for air leakage around the opening of the primary container as long as there is no air leakage anywhere else and no leakage of water. We agree that it would be clearer, in this case, to eliminate the reference and to provide only the USPS test procedure and pass/fail criteria. One commenter requested clarification on the height of the required drop tests. Our proposed rule requires 30-foot drops for the wet and cold tests as identified in 49 CFR 178.609e and f. The impact test requires a drop of 3 feet as identified in 49 CFR 178.609h. While we understand that the test identified in 49 CFR consists of requirements for packaging infectious substances, we believe that the Postal Service's handling and transportation systems are different from those of commercial carriers and require more stringent acceptance criteria. Therefore, this final rule adopts the standard as published in the proposal. One commenter suggested that testing material should be simulated medical waste. We disagree. The testing material should consist of sharps or other regulated medical waste as defined in DMM 601.10.17.2e and g. Vendors are on notice that contaminated medical waste will not be used for testing purposes. Therefore, this final rule adopts the standard as published in the proposal. Mailpiece Acceptance One commenter objected to requirements that vendors retrieve improperly labeled containers when identified and held at plants. The commenter suggested that the Postal Service should confirm the mailpiece was properly marked and labeled before accepting it. While we continually educate employees on acceptance criteria, the mailer remains responsible for properly labeling the mailpiece. Therefore, this final rule adopts the requirement as published in the proposal. This final rule will be effective on November 9, 2006. Sharps and other regulated medical waste containers that are currently approved for mailing can maintain their authorization until it expires (24 months from the most recent approval). Containers must meet the new standards if they are submitted for authorization (or renewal of authorization) on or after November 9. We adopt the following amendments to Mailing Standards of the United States Postal Service, Domestic Mail Manual (DMM), incorporated by reference in the Code of Federal Regulations. See 39 CFR 111.1. List of Subjects in 39 CFR Part 111 Administrative practice and procedure, Postal Service. Accordingly, 39 CFR part 111 is amended as follows: PART 111—[AMENDED] 1. The authority citation for 39 CFR part 111 continues to read as follows: Authority: 5 U.S.C. 552(a); 39 U.S.C. 101, 401, 403, 404, 414, 416, 3001-3011, 3201-3219, 3403-3406, 3621, 3626, 5001. 2. Revise the following sections of Mailing Standards of the United States Postal Service, Domestic Mail Manual (DMM), as follows: 600 Basic Standards for All Mailing Services 601 Mailability 10.0 Hazardous Materials 10.17 Infectious Substances (Hazard Class 6, Division 6.2) [Revise title of 10.17.7 as follows:] 10.17.7 Sharps Medical Waste and Regulated Medical Waste Containers [Replace “distributor or manufacturer” with “vendor” throughout 10.17.7.] [Add new authorization information to the end of item a1 as follows:] 1. * * * Vendors that market their containers to distributors are responsible for disposal and cleanup costs attributed to those containers. In addition, vendors must provide a list of distributors, including firm names, addresses, and telephone numbers, to the Postal Service on request. [Revise item a3 to add “name” and “phone number” as follows:] 3. Name, address, and phone number of each storage and disposal site. [Add text at the end of item a8 as follows:] 8. * * * and verification that the merchandise return service
(MRS)permit fee and accounting fee have been paid. [Add new item a9 as follows:] 9. Address of the post office or postage due unit where the containers are delivered. [Revise the package testing information in item b1 by replacing the last sentence as follows:] 1. * * * Package testing results must show that the contents of the primary container did not penetrate through the primary container during package testing and that the primary container can maintain its integrity at temperatures as low as 0°F and as high as 120°F. [Revise the third sentence of item b2 to read “4 mil” as follows:] 2. * * * If one of the components is a plastic bag, the bag must be at least 4 mil in thickness and must be used in conjunction with a fiberboard box. * * * [Revise item b4 by replacing “a watertight barrier” with “the primary receptacle” as follows:] 4. There must be enough material within the primary receptacle * * * [Revise item b5 as follows:] 5. Each mailpiece must not weigh more than 25 pounds. The container's maximum allowable weight must be printed on the outside of the box and on the assembly and closure instructions included with each mailpiece. The mailpiece must be tested at the maximum allowable weight identified by the vendor. [Add a new sentence at the end of item c1 as follows:] 1. * * * Place the label on the top or on a side of the container. [Add a new sentence at the end of item c2 as follows:] 2. * * * The symbol on the outer shipping container must be at least 3 inches high and 4 inches wide. [Add new item c7 as follows:] 7. Vendors must retrieve mailpieces held at processing facilities due to improper labeling such as no return address or due to improperly completed shipping papers. [Revise item d as follows:] d. *Package Testing.* Vendors must submit to the manager, Mailing Standards (see 608.8 for address), package testing results from an independent testing facility for each package for which the vendor is requesting authorization. In addition, vendors must submit package testing results from an independent testing facility when the design of a container system changes or every 24 months, whichever occurs first. The test results must show that if every mailpiece prepared for mailing were subject to the environmental and test conditions in 49 CFR and the additional test requirements in 10.17.7e, no contents would be released into the environment and the effectiveness of the packaging would not be significantly reduced. The Postal Service may require proof of accreditation or other documentation to support the credentials of an independent testing facility. [Add new item e as follows:] e. *Testing Criteria.* Each mailpiece must pass each of the tests described below: 1. *Leak-proof test.* The test must be conducted on one primary receptacle with the lid in place, without the secondary and outer packaging. The test duration must be at least 5 minutes and must be conducted at 20 kPa (3 psi). The pass/fail criterion is: No air leakage from anywhere other than the closure of the primary receptacle. Air leakage at the closure is not considered a failure if the primary receptacle passes the test for watertightness as determined by placing 50 ml of deionized water into the primary receptacle, securing the closure, and then turning the container on its side and observing for any evidence of leakage. Any evidence of water leaking from the primary receptacle is a failure. 2. *Stacking test.* One mailpiece must withstand the test in 49 CFR 178.606. The dynamic compression test must be conducted on the empty, unsealed mailpiece assembled for mailing, without the primary receptacle(s). The test mass is the vendor-identified maximum weight, not to exceed 25 pounds, as indicated on the outer shipping container and on the assembly and closing instructions. A compensation factor of 1.5 must be used to compute the test load, based on the vendor-identified weight. The pass/fail criteria are: No buckling of the sidewalls sufficient to cause damage to the contents in the primary container, and in no case does the deflection exceed 1 inch. 3. *Vibration test.* One mailpiece filled with sharps or other regulated medical waste must withstand the test in 49 CFR 178.608. The test mailpiece is filled with sharps or other regulated medical waste to the vendor-identified maximum weight, not to exceed 25 pounds, as indicated on the outer shipping container and on the assembly and closing instructions. The test sample is prepared as it would be for mailing. The pass/fail criterion is: No rupture, cracking, or splitting of any primary receptacle. 4. *Wet drop test.* Five mailpieces filled with sharps or other regulated medical waste must withstand the test in 49 CFR 178.609e. Each test mailpiece is filled with sharps or other regulated medical waste to the vendor-identified maximum weight, not to exceed 25 pounds, as indicated on the outer shipping container and on the assembly and closing instructions included with each mailpiece. Each mailpiece is prepared as it would be for mailing and subjected to the water spray as described in the test. A separate, untested mailpiece is used for each drop orientation: Top, longest side, shortest side, and corner. The pass/fail criteria are: No rupture, cracking, or splitting of any primary receptacle, and no contents may penetrate into or through the body or lid of any primary receptacle. 5. *Cold drop test.* Five mailpieces filled with sharps or other regulated medical waste must withstand the test in 49 CFR 178.609f. Each test mailpiece is filled with sharps or other regulated medical waste to the vendor-identified maximum weight, not to exceed 25 pounds, as indicated on the outer shipping container and on the assembly and closing instructions included with each mailpiece. Each mailpiece is prepared as it would be for mailing and chilled as described in the test. A separate, untested mailpiece is used for each drop orientation: Top, longest side, shortest side, and corner. The pass/fail criteria are: No rupture, cracking, or splitting of any primary receptacle, and no contents may penetrate into or through the body or lid of any primary receptacle. 6. *Impact test.* One mailpiece filled with sharps or other regulated medical waste must withstand the test in 49 CFR 178.609h. The test mailpiece is filled with sharps or other regulated medical waste to the vendor-identified maximum weight, not to exceed 25 pounds, as indicated on the outer shipping container and on the assembly and closing instructions included with each mailpiece. The mailpiece is prepared as it would be for mailing. The pass/fail criteria are: No rupture, cracking, or splitting of any primary receptacle, and no contents may penetrate into or through the body or lid of any primary receptacle. 7. *Puncture-resistant test.* Package testing results must show that during all of the previous tests, the contents did not penetrate through the primary container. 8. *Temperature test.* Package testing results must show that each primary receptacle maintained its integrity when exposed to temperatures as low as 0°F and as high as 120°F. 9. *Absorbency test.* Package testing results must show that the primary receptacle(s) contain enough absorbent material to absorb three times the total liquid allowed within the primary receptacle in case of leakage. Absorbency is determined by pouring 150 ml of deionized water into the primary receptacle(s), then turning the receptacle(s) upside down and observing for any evidence of free liquid not absorbed on contact. Any evidence of free liquid is a failure. 10. *Watertight test.* Package testing results must show that no leakage occurred when 50 ml of deionized water was placed into the secondary containment system and the entire system turned upside down for 5 minutes. [Add new item f as follows:] f. *Suspension of Authorization.* 1. The Postal Service may suspend a vendor's authorization based on information that a mailpiece no longer meets the standards for mailing sharps medical waste and regulated medical waste containers, or that the mailpiece poses an unreasonable safety risk to Postal Service employees or the public. The suspension can be made immediately, making the mailpiece nonmailable immediately. The vendor may contest a decision to suspend authorization by writing to the manager, Mailing Standards (see 608.8 for address), within 7 days from the date of the letter of suspension. The appeal should provide evidence demonstrating why the decision should be reconsidered. Any order suspending authorization remains in effect during an appeal or other challenge. 2. When a vendor is notified that its authorization to mail sharps or other regulated medical waste containers has been suspended, the vendor must immediately:
(1)Recall all identified containers.
(2)Notify all customers that they cannot mail the identified containers.
(3)Suspend sales and distribution of all identified containers.
(4)Collect the identified containers from distributors, consumers, and the Postal Service without using the mail and in accordance with all Federal and State regulations. Neva R. Watson, Attorney, Legislative. [FR Doc. E6-18063 Filed 10-31-06; 8:45 am] BILLING CODE 7710-12-P POSTAL SERVICE 39 CFR Part 111 New Mailing Standards for Division 6.2 Infectious Substances AGENCY: Postal Service. ACTION: Interim rule with request for comments. SUMMARY: The Postal Service is revising its mailing standards and packaging requirements for Division 6.2 infectious substances based on the criteria published by the World Health Organization. Our revised standards adopt many of the changes the Department of Transportation made to its regulations for the shipment and packaging of hazardous materials. We also harmonize our standards with the World Health Organization Guidance on Regulations for the Transport of Infectious Substances and the International Civil Aviation Organization Technical Instructions for the Safe Transport of Dangerous Goods by Air. In addition, we prohibit Category A infectious substances in the mail. DATES: These changes are effective November 1, 2006. We will accept your comments on or before December 1, 2006. ADDRESSES: Mail or deliver written comments to the Manager, Mailing Standards, U.S. Postal Service, 475 L'Enfant Plaza, SW., Room 3436, Washington, DC 20260-3436. You may inspect and photocopy all written comments at USPS Headquarters Library, 475 L'Enfant Plaza, SW., 11th Floor N, Washington, DC between 9 a.m. and 4 p.m., Monday through Friday. FOR FURTHER INFORMATION CONTACT: Bert Olsen, 202-268-7276. SUPPLEMENTARY INFORMATION: The Postal Service is subject to the legal restrictions in Title 18 of United States Code 1716, which prohibits the mailing of “all disease, germs, or scabs, and all other natural or artificial articles, compositions, or material which may kill or injure another, or injure the mails or other property” if that material is outwardly or of its own force dangerous to life, health, or property. For legal and safety reasons, the mailing standards for hazardous materials in *Mailing Standards of the United States Postal Service,* Domestic Mail Manual
(DMM)closely adhere to Department of Transportation
(DOT)regulations in 49 CFR, and include additional limitations and prohibitions. On June 6, 2003, we published a final rule in the **Federal Register** (68 FR 33858) to revise the standards for mailing infectious substances. The revision harmonized our standards with many of the DOT regulations in effect at that time for the transportation of infectious substances. On June 2, 2006, DOT published new regulations (71 FR 32244) to revise the transportation requirements for infectious substances and adopt new classification criteria, new exceptions, and new packaging and hazard communication requirements consistent with revised international standards. This interim rule harmonizes our mailing standards with the packaging category system for infectious substances developed by the World Health Organization
(WHO)in 2005. Our revisions are largely consistent with DOT regulations for shipping and packaging hazardous materials and with the International Civil Aviation Organization
(ICAO)Technical Instructions for the Safe Transport of Dangerous Goods by Air. We also prohibit Category A infectious substances in the mail. Category A includes infectious substances transported in a form capable of causing permanent disability or life-threatening or fatal disease in otherwise healthy people or animals if exposure occurs. Our prohibition of Category A infectious substances is consistent with ICAO's recommendation that Category A substances not be carried by mail. Our interim rule: • Revises the classification system from the current four-tiered risk group classification system to a two-tiered system. Infectious substances are now classified as “Category A” and “Category B,” depending on the type of substance. • Identifies Category A infectious substances as nonmailable. • Replaces the shipping name “Diagnostic Specimen” with “Biological substance, Category B.” • Adopts packaging requirements for Category B infectious substances consistent with those in the DOT regulations, the WHO Guidance, and the ICAO Technical Instructions. These revisions to our mailing standards will provide a greater level of safety for handling and transporting mailable infectious substances. These changes will also facilitate domestic and international transportation by aligning our mailing standards with the current international standards for the transport of hazardous materials. We provide the new standards below. We will publish a final rule and may further revise the standards based on the comments we receive. Although we are exempt from the notice and comment requirements of the Administrative Procedure Act regarding proposed rulemaking (see 5 U.S.C. 553(b), (c)), we invite public comments on the following revisions to *Mailing Standards of the United States Postal Service,* Domestic Mail Manual (DMM), incorporated by reference in the Code of Federal Regulations. See 39 CFR 111.1. List of Subjects in 39 CFR Part 111 Administrative practice and procedure, Postal Service. Accordingly, 39 CFR part 111 is amended as follows: PART 111—[AMENDED] 1. The authority citation for 39 CFR part 111 continues to read as follows: Authority: 5 U.S.C. 552(a); 39 U.S.C. 101, 401, 403, 404, 414, 416, 3001-3011, 3201-3219, 3403-3406, 3621, 3626, 5001. 2. Revise the following sections of *Mailing Standards of the United States Postal Service,* Domestic Mail Manual (DMM), as follows: 600 Basic Standards for All Mailing Services 601 Mailability 10.0 Hazardous Materials 10.17 Infectious Substances (Hazard Class 6, Division 6.2) 10.17.1 General *[Revise the first and last sentences in 10.17.1 as follows:]* Division 6.2 materials include infectious substances, biological products, regulated medical waste, sharps medical waste, used health care products, and forensic materials. * * * Unless otherwise noted, all mailable Division 6.2 materials must meet the mail preparation requirements for air transportation. 10.17.2 Definitions The terms used in the standards for Division 6.2 materials are defined as follows: *[Revise item a as follows:]* a. *Infectious substance* means a material known or reasonably expected to contain a pathogen. A pathogen is a microorganism that can cause disease in humans or animals. Examples of pathogens include bacteria, viruses, fungi, and other infectious agents. An infectious substance must be assigned to one of the following two categories: 1. *Category A:* An infectious substance transported in a form capable of causing permanent disability or life-threatening or fatal disease in otherwise healthy humans or animals when exposure occurs. Category A infectious substances are not mailable. A Category A infectious substance is assigned the identification number UN 2814 or UN 2900, based on the known medical history or symptoms of the source patient or animal, endemic local conditions, or professional judgment concerning the individual circumstances of the source human or animal. 2. *Category B:* An infectious substance that does not meet the criteria for inclusion in Category A. A mailpiece known or suspected to contain a Category B infectious substance must bear the proper shipping name “Biological substance, Category B” on the address side of the mailpiece and must be assigned to and marked with identification number UN 3373 or, for regulated medical waste and sharps medical waste, identification number UN 3291. *[Revise item b as follows:]* b. *Biological product* means a virus, therapeutic serum, toxin, antitoxin, vaccine, blood, blood component or derivative, allergenic product, or analogous product or arsphenamine or derivative of arsphenamine (or any other trivalent arsenic compound) intended to prevent, treat, or cure a disease or condition of humans or animals. A biological product includes a material subject to regulation under 42 U.S.C. 262 or 21 U.S.C. 151-159. Unless otherwise excepted, mark these mailpieces with identification number UN 3373 when they contain a biological product known or reasonably expected to contain a pathogen that meets the definition of a Category B infectious substance. *[Revise item c as follows:]* c. *Cultures* are infectious substances that result from a process by which pathogens are intentionally propagated. This definition does not include a human or animal patient specimen as defined in 10.17.2e. *[Replace item d with new item d as follows:]* d. *Exempt human or animal specimen* means a human or animal sample (including, but not limited to, secreta, excreta, blood and its components, tissue and tissue fluids, and body parts) transported for routine testing not related to the diagnosis of an infectious disease. Typically, exempt human specimens are specimens for which there is a low probability that the sample is infectious, such as specimens for drug or alcohol testing; cholesterol testing; blood glucose level testing; prostate-specific antigens
(PSA)testing; testing to monitor heart, kidney, or liver function; pregnancy testing; and testing for diagnosis of noninfectious diseases such as cancer biopsies. Exempt human or animal specimens are not subject to regulations as hazardous materials but must be packaged according to 10.17.10. *[Replace item e with new item e as follows:]* e. *Patient specimen* means material that is collected directly from humans or animals and transported for purposes such as diagnosis and research. Patient specimens include excreta, secreta, blood and its components, tissue and tissue swabs, body parts, and specimens in transport media (such as transwabs, culture media, and blood culture bottles). *[Replace item f with new item f as follows:]* f. *Regulated medical waste,* for USPS purposes, means a soft waste material (other than a sharp) derived from the medical treatment, diagnosis, immunization, or biomedical research of a human or animal. Soft medical waste includes items such as used rubber gloves, swabs, gauze, tongue depressors, and other similar material. Mark these mailpieces with identification number UN 3291. *[Delete Exhibit 10.17.2f, Risk Group Criteria. Revise item g as follows:]* g. *Sharps medical waste,* for USPS purposes, means a medical waste object that is capable of cutting or penetrating skin or packaging material and that is contaminated with a pathogen or may become contaminated with a pathogen derived from the medical treatment, diagnosis, immunization, or biomedical research of a human or animal. Sharps include used medical waste such as needles, syringes, scalpels, broken glass, culture slides, culture dishes, broken capillary tubes, broken rigid plastic, and exposed ends of dental wires. Mark these mailpieces with identification number UN 3291. *[Revise the last part of item h as follows:]* h. * * * UN 2814, UN 2900, or UN 3373, as appropriate. A toxin known or suspected to contain a Category A infectious substance is not mailable. A toxin known or suspected to contain a Category B infectious substance must be marked UN 3373 and packaged under 10.17.5. Toxins from plant, animal, or bacterial sources that do not contain an infectious substance, and are not contained in an infectious substance, may be considered for classification as Division 6.1 toxic substances under 10.16. *[Delete the last sentence in item i. Revise the last part of the new last sentence as follows:]* i. * * * to remove or mitigate the infectious hazard prior to transport. 10.17.3 Nonregulated Materials *[Revise 10.17.3 as follows:]* The following materials are not subject to regulation as Division 6.2 hazardous materials and are mailable when the packaging requirements in 10.17.9 are met: a. A biological product, including an experimental or investigational product or component of a product, subject to Federal approval, permit, review, or licensing requirements, such as those required by the Food and Drug Administration of the U.S. Department of Health and Human Services or the U.S. Department of Agriculture. A biological product known or suspected to contain a Category B infectious substance must be marked UN 3373 and packaged under 10.17.5. A biological product known or suspected to contain a Category A infectious substance is not mailable. b. Blood collected for the purpose of blood transfusion or the preparation of blood products; blood products; plasma; plasma derivatives; blood components; tissues or organs intended for use in transplant operations; and human cell, tissues, and cellular and tissue-based products regulated under the Public Health Service Act (42 U.S.C. 264-272) or the Food, Drug, and Cosmetic Act (21 U.S.C. 332 *et seq.* ). c. Blood, blood plasma, and blood components collected for the purpose of blood transfusion or the preparation of blood products and sent for testing as part of the collection process, except where the person collecting the blood has reason to believe it contains a Category B infectious substance, in which case the test sample must be shipped as a Category B infectious substance. Materials known or suspected to contain a Category A infectious substance are not mailable. d. Dried blood spots, collected by applying a drop of blood to absorbent material, or dried specimens for fecal occult blood detection. (These materials are not classified as exempt human or animal specimens.) e. Forensic material containing a biological material, such as tissue, body fluid, excreta, or secreta, not expected to contain a Category A or Category B infectious substance and transported on behalf of a U.S. Government agency or a state, local, or Indian tribal government agency. A forensic material known or suspected to contain a Category B infectious substance must be shipped as a Category B infectious substance. A forensic material known or suspected to contain a Category A infectious substance is not mailable. *[Revise Exhibit 10.17.4 as follows:]* Exhibit 10.17.4 Packaging Standards for Division 6.2 Infectious Substances Material being mailed Packaging standards Nonregulated Category A Category B Blood for Transfusion 10.17.9 nm 10.17.5 Biological Product 10.17.9 nm 10.17.5 Culture or Stock 10.17.9 nm 10.17.5 Patient Specimen na nm 10.17.5 Exempt Human or Animal Specimen 10.17.10 na na Forensic Material 10.17.9 nm 10.17.5 Regulated Medical Waste 10.17.6 nm 10.17.6 Sharps Waste 10.17.6 nm 10.17.6 Toxin * 10.16.4 nm 10.17.5 Treated Medical Waste 10.17.9 n/a n/a Used Health Care Product 10.17.7 nm 10.17.7 nm = Not mailable. n/a = Not applicable. * *Toxin* means a Division 6.1 material from a plant, animal, or bacterial source. A toxin containing an infectious substance or a toxin contained in an infectious substance must be classified as Division 6.2; described as an infectious substance; and assigned to UN 2814, UN 2900, or UN 3373, as appropriate. A Division 6.1 toxin that can qualify as an ORM-D material is permitted when packaged under 10.16.3 or 10.16.4. *[Revise 10.7.5 as follows:]* 10.17.5 Packaging Category B Infectious Substances A material that is classified as a Category B infectious substance and that meets the definition in 10.17.2a2 must be triple-packaged, meeting the packaging requirements in 49 CFR 173.199, and sent as First-Class Mail, Priority Mail, or Express Mail. Each primary receptacle containing a liquid must be leakproof and surrounded by absorbent material sufficient to protect the primary receptacle and absorb the total amount of liquid should the primary receptacle leak or break. Each primary receptacle containing a solid must be siftproof. Secondary containers for liquids must be leakproof. Secondary containers for solids must be siftproof. The primary and secondary packaging must be enclosed in a rigid outer shipping container. A single primary receptacle must not contain more than 1 liter (34 ounces) of a liquid specimen or 4 kg (8.8 pounds) of a solid specimen. Two or more primary receptacles whose combined volume does not exceed 4 liters (1 gallon) for liquids or 4 kg (8.8 pounds) for solids may be enclosed in a single secondary container. In addition: a. The secondary container must be marked with the international biohazard symbol shown in Exhibit 10.17.6c2. b. The primary receptacle or secondary packaging must be capable of withstanding, without leakage, an internal pressure producing a pressure differential of not less than 95 kPa (0.95 bar, 14 psi) in the range of −40°C to 55°C (−40°F to 130°F). c. All mailpieces sent under 10.17.5 must be marked on the address side with the shipping name “Biological substance, Category B” and “UN 3373” as outlined in 49 CFR 173.199 (a)(5). Regulated medical waste and sharps medical waste as defined in 10.17.2f and 10.17.2g must be marked UN 3291. See 10.17.6. d. Orientation arrows are not required on these mailpieces but may be used. e. The outer packaging must show the name and telephone number of a person who is knowledgeable about the material shipped and has comprehensive emergency response and incident mitigation information, or of someone who has immediate access to the person with such knowledge and information. *[Delete 10.17.6 and renumber 10.17.7 through 10.17.10 as 10.17.6 through 10.17.9.]* 10.17.6 Sharps Waste and Other Mailable Regulated Medical Waste *[Revise the introductory text as follows:]* Regulated medical waste and sharps medical waste known or suspected to contain a Category A infectious substance is not mailable. Regulated medical waste and sharps medical waste as defined in 10.17.2f and 10.17.2g, and containing materials classified as Category B infectious substances, must be marked UN 3291 and is permitted for mailing only using merchandise return service (see 507.10.0) with First-Class Mail or Priority Mail service, subject to the following requirements: *[Revise item b as follows:]* b. *Packaging.* Regulated medical waste and sharps medical waste that also meets the definition of a Category A infectious substance is not mailable. A medical waste material treated by steam sterilization, chemical disinfections, or other appropriate method so that it no longer contains a Category A or Category B infectious substance must be packaged under 10.17.9. The packaging for regulated medical waste and sharps medical waste containing or suspected of containing a Category B infectious substance is subject to these standards: 10.17.7 Packaging Used Health Care Products *[Revise the introductory text as follows:]* A used health care product known or reasonably suspected to contain a Category A material is not mailable. A used health care product not suspected to contain an infectious material, or that is known or suspected to contain a Category B infectious substance, and is being returned to the manufacturer or manufacturer's designee is mailable as First-Class Mail, Priority Mail, or Express Mail subject to the following packaging requirements: *[Revise the heading and introductory text in renumbered 10.17.8 as follows:]* 10.17.8 Packaging Forensic Material Forensic material containing a biological material, such as tissue, body fluid, excreta, or secreta, and sent on behalf of a U.S. Government agency or a State, local, or Indian tribal government agency must be packaged under 10.17.9 when it is not known or suspected to contain a Category A or Category B infectious substance. Forensic material known or suspected to contain a Category A infectious substance is not mailable. Forensic material known or suspected to contain a Category B infectious substance as identified in 10.17.5 is mailable as First-Class Mail, Priority Mail, or Express Mail when triple-packaged in a primary receptacle, secondary container, and a rigid outer shipping container as follows: *[Revise the heading and text in renumbered 10.17.9 as follows:]* 10.17.9 Packaging Nonregulated Materials Nonregulated materials as defined in 10.17.3 are not subject to regulation as hazardous materials but must be properly packaged when presented for mailing. Regulated medical waste, sharps medical waste, and used health care products must be packaged and mailed under 10.17.6 and 10.17.7. Exempt human and animal specimens must be packaged under 10.17.10. Nonregulated materials are mailable as First-Class Mail, Priority Mail, Express Mail, or Package Services mail. Such materials must be held within a securely sealed primary receptacle. The primary receptacle must be surrounded by sufficient absorbent material (for liquids) and cushioning material to protect the primary receptacle from breakage. The absorbent material must be capable of taking up the entire liquid contents of the primary receptacle in case of leakage. Either the primary receptacle or the inner packaging must be marked with the international biohazard symbol shown in Exhibit 10.17.6c2. The primary receptacle and the absorbent and cushioning material must be snugly enclosed in a rigid outer shipping container that is securely sealed. A shipping paper and a content marking on the outer shipping container are not required. Nonregulated material specimens and biological products are subject to the following packaging standards: a. *Liquid Patient Specimens and Biological Products.* Mailers must package a liquid nonregulated patient specimen, a forensic specimen, or a biological product (such as polio vaccine) as follows: 1. *Not exceeding 50 ml.* A patient specimen or biological product consisting of 50 ml or less per mailpiece must be packaged in a securely sealed primary receptacle. Two or more primary receptacles whose combined volume does not exceed 50 ml may be enclosed within a single mailpiece. Sufficient absorbent material and cushioning material to withstand shock and pressure changes must surround the primary receptacle(s), or be otherwise configured to take up the entire liquid contents in case of leakage. The primary receptacle(s) and the absorbent cushioning must be enclosed in a secondary container with a leakproof barrier that can prevent failure of the secondary container if the primary receptacle(s) should leak during transport. The secondary container must be securely sealed, and it may serve as the outer shipping container if it has sufficient strength to withstand ordinary postal processing. The secondary container must be marked with the international biohazard symbol shown in Exhibit 10.17.6c2, except when the secondary container also serves as the outer shipping container. In that case, the biohazard symbol must appear on the inner packaging or on the primary container. A shipping paper and a content marking on the outer shipping container are not required. 2. *Exceeding 50 ml.* A liquid patient specimen, forensic material, or biological product that exceeds 50 ml must be packaged in a securely sealed primary receptacle. A single primary receptacle must not contain more than 500 ml of specimen. Two or more primary receptacles whose combined volume does not exceed 500 ml may be enclosed in a single secondary container. Sufficient absorbent material and cushioning material to withstand shock and pressure changes must surround the primary receptacle(s), or be otherwise configured to take up the entire liquid contents in case of leakage. The primary receptacle(s) and the absorbent cushioning must be enclosed in a secondary container with a leakproof barrier that can prevent failure of the secondary container if the primary receptacle(s) should leak during transport. The secondary container cannot serve as the outer shipping container. The secondary container must be marked with the international biohazard symbol shown in Exhibit 10.17.6c2. The secondary container must be securely and snugly enclosed in a fiberboard box or container of equivalent strength that serves as the outer shipping container. A shipping paper and a content marking on the outer shipping container are not required. b. *Solid (or Dry) Specimen.* A solid or dry specimen, such as a saliva swab, blood spot, fecal smear, culture or stock, or forensic material, must be completely dried before packaging in a mailing container or envelope. Cushioning material to withstand shock and pressure changes is required only if the dry specimen is placed in a breakable primary receptacle. When required, the cushioning material must surround the primary receptacle. The primary receptacle (and cushioning material, if required) must be enclosed in a secondary container with a siftproof barrier that can prevent failure of the secondary container if the primary receptacle breaks during shipment. The secondary container must be securely sealed, and it may serve as the outer shipping container if it has sufficient strength to withstand ordinary postal processing. The secondary container must be marked with the international biohazard symbol shown in Exhibit 10.17.6c2, except when the secondary container also serves as the outer shipping container. In that case, the biohazard symbol must appear either on the inner packaging or on the primary container receptacle. A shipping paper and a content marking on the outer shipping container are not required. *[Insert new 10.17.10 as follows:]* 10.17.10 Packaging Exempt Human or Animal Specimens Exempt human or animal specimens as defined in 10.17.2d are not subject to regulation as hazardous materials but when presented for mailing must be triple-packaged in leakproof (for liquids) or siftproof (for solids) primary receptacles. Sufficient cushioning and absorbent materials must surround each primary receptacle containing liquid. Secondary containers for liquids must be leakproof. Secondary containers for solids must be siftproof. The primary and secondary packaging must be enclosed in a rigid outer shipping container. A single primary receptacle must not contain more than 500 ml of a liquid specimen or 500 grams of a solid specimen. Two or more primary receptacles whose combined volume does not exceed 500 ml (for liquids) or 500 grams (for solids) may be enclosed in a single secondary container. The secondary container cannot serve as the outer shipping container. The secondary container must be marked with the international biohazard symbol shown in Exhibit 10.17.6c2. The secondary container must be securely and snugly enclosed in a fiberboard box or container of equivalent strength that serves as the outer shipping container. A shipping paper is not required. The outer shipping container must be marked on the address side with the words “Exempt human specimen” or “Exempt animal specimen,” as appropriate. In addition, at least one surface of the outer packaging must have a minimum dimension of 3.9 inches x 3.9 inches (100 mm x 100 mm). Exempt human and animal specimens are mailable as First-Class Mail, Priority Mail, Express Mail, or Package Services mail. Neva R. Watson, Attorney, Legislative. [FR Doc. E6-18062 Filed 10-31-06; 8:45 am] BILLING CODE 7710-12-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R08-OAR-2006-0564, FRL-8236-8] Approval and Promulgation of Air Quality Implementation Plans; Utah; Revisions to the Utah Administrative Code; Direct Final Rule AGENCY: Environmental Protection Agency (EPA). ACTION: Direct final rule. SUMMARY: EPA is taking direct final action to approve State Implementation Plan
(SIP)revisions submitted by the State of Utah on February 7, 2006. These changes to the Utah Administrative Code revise some minor technical requirements of Utah's continuous emission monitoring rules and correct several grammatical errors. The intended effect of this action is to make federally enforceable those provisions that EPA is approving. This action is being taken under section 110 of the Clean Air Act. DATES: This rule is effective on January 2, 2007 without further notice, unless EPA receives adverse comment by December 1, 2006. If adverse comment is received, EPA will publish a timely withdrawal of the direct final rule in the **Federal Register** informing the public that the rule will not take effect. ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R08-OAR-2006-0564, by one of the following methods: • * www.regulations.gov.* Follow the on-line instructions for submitting comments. • *E-mail: long.richard@epa.gov* and *kimes.jeffrey@epa.gov.* • *Fax:*
(303)312-6064 (please alert the individual listed in the FOR FURTHER INFORMATION CONTACT if you are faxing comments). • *Mail:* Richard R. Long, Director, Air and Radiation Program, Environmental Protection Agency (EPA), Region 8, Mailcode 8P-AR, 999 18th Street, Suite 200, Denver, Colorado 80202-2466. • *Hand Delivery:* Richard R. Long, Director, Air and Radiation Program, Environmental Protection Agency (EPA), Region 8, Mailcode 8P-AR, 999 18th Street, Suite 200, Denver, Colorado 80202-2466. Such deliveries are only accepted Monday through Friday, 8 a.m. to 4:55 p.m., excluding federal holidays. Special arrangements should be made for deliveries of boxed information. *Instructions:* Direct your comments to Docket ID No. EPA-R08-OAR-2006-0564. EPA's policy is that all comments received will be included in the public docket without change and may be made available online at *www.regulations.gov* including any personal information provided, unless the comment includes information claimed to be Confidential Business Information
(CBI)or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through *www.regulations.gov or e-mail.* The *www.regulations.gov* Web site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA, without going through *www.regulations.gov* , your e-mail address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. For additional information about EPA's public docket visit the EPA Docket Center homepage at *http://www.epa.gov/epahome/dockets.htm.* For additional instructions on submitting comments, go to Section I: General Information portion in the SUPPLEMENTARY INFORMATION section of this document. *Docket:* All documents in the docket are listed in the *www.regulations.gov index.* Although listed in the index, some information is not publicly available, *e.g.* , CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, will be publicly available only in hard copy. Publicly available docket materials are available either electronically in *www.regulations.gov* or in hard copy at the Air and Radiation Program, Environmental Protection Agency (EPA), Region 8, 999 18th Street, Suite 200, Denver, Colorado 80202-2466. EPA requests that if at all possible, you contact the individual listed in the FOR FURTHER INFORMATION CONTACT section to view the hard copy of the docket. You may view the hard copy of the docket Monday through Friday, 8 a.m. to 4 p.m., excluding federal holidays. FOR FURTHER INFORMATION CONTACT: Jeffrey Kimes, Air and Radiation Program, Mailcode 8P-AR, Environmental Protection Agency (EPA), Region 8, 999 18th Street, Suite 200, Denver, Colorado 80202-2466,
(303)312-6445, *kimes.jeffrey@epa.gov.* SUPPLEMENTARY INFORMATION: Table of Contents I. General Information II. Background III. EPA's Review of the State of Utah's February 7, 2006 Submittal IV. Final Action V. Statutory and Executive Order Reviews Definitions For the purpose of this document, we are giving meaning to certain words or initials as follows:
(i)The words or initials Act or CAA mean or refer to the Clean Air Act, unless the context indicates otherwise.
(ii)The words EPA, we, us or our mean or refer to the United States Environmental Protection Agency.
(iii)The initials SIP mean or refer to State Implementation Plan.
(iv)The words State or Utah mean the State of Utah, unless the context indicates otherwise. I. General Information A. What Should I Consider as I Prepare My Comments for EPA? 1. *Submitting CBI.* Do not submit this information to EPA through *www.regulations.gov* or e-mail. Clearly mark the part or all of the information that you claim to be CBI. For CBI information in a disk or CD ROM that you mail to EPA, mark the outside of the disk or CD ROM as CBI and then identify electronically within the disk or CD ROM the specific information that is claimed as CBI. In addition to one complete version of the comment that includes information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2. 2. *Tips for Preparing Your Comments.* When submitting comments, remember to: a. Identify the rulemaking by docket number and other identifying information (subject heading, **Federal Register** date and page number). b. Follow directions—The agency may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations
(CFR)part or section number. c. Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes. d. Describe any assumptions and provide any technical information and/or data that you used. e. If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced. f. Provide specific examples to illustrate your concerns, and suggest alternatives. g. Explain your views as clearly as possible, avoiding the use of profanity or personal threats. h. Make sure to submit your comments by the comment period deadline identified. II. Background On February 7, 2006, the Governor of Utah submitted a SIP revision that contains amendments to Rule R307-170 of the Utah Administrative Code. The amendments update a key provision of the State's continuous emissions monitoring rule to be consistent with 40 CFR part 75, Appendix A, Section 6.2 on which part of the State's rule is based. In addition, the revision corrects several inconsequential grammatical errors. The Utah Air Quality Board adopted these amendments on January 4, 2006 and they became effective on January 5, 2006. III. EPA's Review of the State of Utah's February 7, 2006 Submittal A. Revisions to the Utah Administrative Code Adopted January 4, 2006 and Effective January 5, 2006 1. Changes to R307-170-7 (1). Performance Specification Audits a. The state is adding language consistent with 40 CFR part 75, Appendix A, Section 6.2, Acid Rain program provisions. This will exempt sources with monitors subject to the Acid Rain rules from the requirement for quarterly monitor audits. Under 40 CFR part 75, Appendix A, Section 6.2, acid rain related monitors require only annual audits. Without the addition of this exemption the acid rain monitors would be unnecessarily subject to the same quarterly audits required under 40 CFR part 60, Appendix B (Standards of Performance for New Stationary Sources) monitoring standards. EPA is approving the revision to R307-170-7(1). 2. Typographical and Grammatical Corrections to R307-170-4. Definitions a. The state is making typographical and grammatical corrections to several definitions. EPA is approving the paragraphs which are the definitions of the following terms: Continuous Emission Monitoring System; Description Report; Excess Emission Report; Monitor; State Electronic Data Report; and Summary Report. 3. Typographical and Grammatical Corrections to Assorted Sections a. The state is making numerous typographical and grammatical corrections to several sections. EPA is approving these inconsequential corrections in the following sections: R307-170-5 (7); R307-170-7 (6); R307-170-7(6)(a) and (b); and in R307-170-9 sections (5)(a) and (b), (6)(b), (7)(b), and (9)(a). IV. Final Action EPA is approving the following changes to the Utah Administrative Code that were submitted by the Governor on February 7, 2006 and effective on January 5, 2006: R307-170-7(1); R307-170-4; R307-170-5 (7); R307-170-7 (6); R307-170-7(6)(a) and (b); and in R307-170-9 sections (5)(a) and (b), (6)(b), (7)(b), and (9)(a). Section 110(l) of the Clean Air Act states that a SIP revision cannot be approved if the revision would interfere with any applicable requirement concerning attainment and reasonable further progress towards attainment of any National Ambient Air Quality Standards (NAAQS) or any other applicable requirements of the Act. The Utah SIP revisions that are the subject of this document do not interfere with attainment or maintenance of any NAAQS or any other applicable requirement of the Act. The Governor's February 7, 2006 submittal merely makes changes to the operational audits of Acid Rain monitors and inconsequential typographical and grammatical changes. Therefore, section 110(l) requirements are satisfied. EPA is publishing this rule without prior proposal because the Agency views this as a noncontroversial amendment and anticipates no adverse comments; we are approving one minor change and typographical and grammatical corrections to Utah's air quality rules. However, in the “Proposed Rules” section of today's **Federal Register** publication, EPA is publishing a separate document that will serve as the proposal to approve the SIP revision if adverse comments are filed. This rule will be effective January 1, 2007 without further notice unless the Agency receives adverse comments by December 1, 2006. If the EPA receives adverse comments, EPA will publish a timely withdrawal in the **Federal Register** informing the public that the rule will not take effect. EPA will address all public comments in a subsequent final rule based on the proposed rule. The EPA will not institute a second comment period on this action. Any parties interested in commenting must do so at this time. Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment. V. Statutory and Executive Order Reviews Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 *et seq.* ). Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4). This rule also does not have tribal implications 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, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have Federalism implications because it does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely approves a state rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant. In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 *et seq.* ). 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 the rule in the **Federal Register** . A major rule cannot take effect until 60 days after it is published in the **Federal Register** . This action is not a “major rule” as defined by 5 U.S.C. 804(2). Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by January 2, 2007. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).) List of Subjects in 40 CFR Part 52 Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds. Dated: September 27, 2006. Carol Rushin, Acting Regional Administrator, Region 8. 40 CFR part 52 is amended to read as follows: PART 52—[AMENDED] 1. The authority citation for Part 52 continues to read as follows: Authority: 42 U.S.C. 7401 *et seq.* Subpart TT—Utah 2. Section 52.2320 is amended by adding paragraph (c)(64) to read as follows: § 52.2320 Identification of plan.
(c)* * *
(64)Revisions to State Implementation Plan were submitted by the State of Utah on February 7, 2006. The revisions are to the Utah Administrative Code to revise the continuous emission monitoring requirements for performance audits of acid rain monitors and to correct several typographical and grammatical errors.
(i)Incorporation by reference.
(A)Utah Administrative Code sections: R307-170-7(1); R307-170-4; R307-170-5 (7); R307-170-7 (6); R307-170-7(6)(a) and (b); and in R307-170-9 sections (5)(a) and (b), (6)(b), (7)(b), and (9)(a); effective January 5, 2006. [FR Doc. E6-18377 Filed 10-31-06; 8:45 am] BILLING CODE 6560-50-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 174 [EPA-HQ-OPP-2006-0784; FRL-8096-4] Bacillus Thuringiensis Modified Cry3A Protein and the Genetic Material Necessary for Its Production in Corn; Exemption from the Requirement of a Tolerance AGENCY: Environmental Protection Agency (EPA). ACTION: Final rule. SUMMARY: This regulation establishes a permanent exemption from the requirement of a tolerance for residues of the *Bacillus thuringiensis* modified Cry3A protein (mCry3A) and the genetic material necessary for its production in corn on field corn, sweet corn, and popcorn when applied/used as a plant-incorporated protectant. Syngenta Seeds, Inc. submitted a petition to EPA under the Federal Food, Drug, and Cosmetic Act (FFDCA), as amended by the Food Quality Protection Act of 1996 (FQPA), requesting an exemption from the requirement of a tolerance. This regulation eliminates the need to establish a maximum permissible level for residues of *Bacillus thuringiensis* modified Cry3A protein (mCry3A) and the genetic material necessary for its production in corn. DATES: This regulation is effective November 1, 2006. Objections and requests for hearings must be received on or before January 2, 2007, 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-2006-0784. All documents in the docket are listed in the index for the docket. Although listed in the index, some information is not publicly available, e.g., Confidential Business Information
(CBI)or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available in the electronic docket at *http://www.regulations.gov* , or, if only available in hard copy, at the OPP Regulatory Public Docket in Rm. S-4400, One Potomac Yard (South Building), 2777 S. Crystal Drive, Arlington, VA. The Docket Facility is open from 8:30 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The Docket telephone number is
(703)305-5805. FOR FURTHER INFORMATION CONTACT: Mike Mendelsohn, Biopesticides and Pollution Prevention Division (7511P), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone number:
(703)308-8715; e-mail address: *mendelsohn.mike@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-2006-0784 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 January 2, 2007. 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-2006-0784, by one of the following methods. • *Federal eRulemaking Portal* : *http://www.regulations.gov* . Follow the on-line instructions for submitting comments. • *Mail* : Office of Pesticide Programs
(OPP)Regulatory Public Docket (7502P), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001. • *Delivery* : OPP Regulatory Public Docket (7502P), Environmental Protection Agency, Rm. S-4400, One Potomac Yard (South Building), 2777 S. Crystal Drive, Arlington, VA. Deliveries are only accepted during the Docket's normal hours of operation (8:30 a.m. to 4 p.m., Monday through Friday, excluding legal holidays). Special arrangements should be made for deliveries of boxed information. The Docket telephone number is
(703)305-5805. II. Background and Statutory Findings In the **Federal Register** of October 27, 2004 (69 FR 62688) (FRL-7370-1), EPA issued a notice pursuant to section 408(d)(3) of the FFDCA, 21 U.S.C. 346a(d)(3), announcing the filing of a pesticide tolerance petition (PP 4F6838) by Syngenta Seeds, Inc., P.O. Box 12257, 3054 Cornwallis Road, Research Triangle Park, NC 27709-2257. The petition requested that 40 CFR part 174 be amended by establishing a permanent exemption from the requirement of a tolerance for residues of modified Cry3A protein (mCry3A) and the genetic material necessary for its production in corn. This notice included a summary of the petition prepared by the petitioner Syngenta Seeds, Inc. One comment was received in response to the notice of filing from the National Corn Growers Association. They supported the petition and requested EPA to quickly issue the final rule. On March 14-15, 2006, EPA held a FIFRA Scientific Advisory Panel
(SAP)meeting, at *http://www.epa.gov/scipoly/sap/meetings/2006/index.htm#march* to address the scientific issues that arose during the risk assessment of mCry3A. EPA asked the SAP to comment on the equivalence of the mCry3A proteins from corn event MIR604 and from recombinant *E. coli* - specifically the presence of two forms in the bacterial-produced mCry3A protein and the differences in bioactivity in the WCRM bioassay. The majority of the Panel concluded that the two forms of the mCry3A are of relatively comparable biological activity for the purposes of the human health assessments based on the amino acid sequence identity, lack of glycosylation, and general stability. EPA also asked the SAP to comment on EPA's conclusions regarding the lack of mammalian toxicity and allergenicity of the mCry3A protein-specifically the impact of the less potent mCry3A form on the results of the acute oral toxicity tests and the usefulness of *in vitro* digestibility studies and amino acid sequence homology analysis as part of the risk assessment. Overall, the Panel was more concerned with the quality of data, i.e. inadequately described methods and poor reproduction of data images. The Panel specifically noted that the amino acid sequence analysis to known toxins and allergens were missing the following data: Specification of which version of NCBI database was utilized; descriptions of parameters utilized; and dates accessed for the BLAST search. EPA recognizes that these are important parameters to include in a description of an amino acid analysis and is requiring submission of additional information by Syngenta Seeds, Inc. in order to confirm the method used. However, EPA maintains that the conclusions of the amino acid sequence analysis are still valid for the purpose of the risk assessment. EPA reached this decision based on the following:
(1)Lack of mammalian toxicity of mCry3A protein as shown by the acute oral mouse study;
(2)mCry3A protein is rapidly digested in SGF;
(3)mCry3A protein originates from a non-allergenic source;
(4)lack of sequence identity of mCry3A protein with eight contiguous amino acids or more than 35% identity over 80 amino acids with known toxins or allergens; and
(5)mCry3A protein is not glycosylated when expressed in corn. Section 408(c)(2)(A)(i) of the FFDCA allows EPA to establish an exemption from the requirement for a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the exemption is “safe.” Section 408(c)(2)(A)(ii) of 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. Pursuant to section 408(c)(2)(B), in establishing or maintaining in effect an exemption from the requirement of a tolerance, EPA must take into account the factors set forth in section 408(b)(2)(C), which require EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue. . . .” Additionally, section 408(b)(2)(D) of the FFDCA requires that the Agency consider “available information concerning the cumulative effects of a particular pesticide's residues ” and “other substances that have a common mechanism of toxicity.” EPA performs a number of analyses to determine the risks from aggregate exposure to pesticide residues. First, EPA determines the toxicity of pesticides. Second, EPA examines exposure to the pesticide through food, drinking water, and through other exposures that occur as a result of pesticide use in residential settings. III. Toxicological Profile Consistent with section 408(b)(2)(D) of the FFDCA, EPA has reviewed the available scientific data and other relevant information in support of this action and considered its validity, completeness, and reliability and the relationship of this information to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children. Data have been submitted demonstrating the lack of mammalian toxicity at high levels of exposure to the mCry3A protein alone. These data demonstrate the safety of the products at levels well above maximum possible exposure levels that are reasonably anticipated in the crops. This is similar to the Agency position regarding toxicity and the requirement of residue data for the microbial *Bacillus thuringiensis* products from which this plant-incorporated protectant was derived (See 40 CFR 158.740(b)(2)(i)). For microbial products, further toxicity testing and residue data are triggered by significant acute effects in studies such as the mouse oral toxicity study, to verify the observed effects and clarify the source of these effects (Tiers II and III). An acute oral toxicity study was submitted for the mCry3A protein. The acute oral toxicity data submitted support the prediction that the mCry3A protein would be non-toxic to humans. Male and female mice (5 of each) were dosed with 2,377 milligrams/kilograms bodyweight (mg/kg bwt) of mCry3A protein. With the exception of one female in the test group that was euthanized on day 2 (due to adverse clinical signs consistent with a dosing injury), all other mice survived the study, gained weight, had no test material-related clinical signs, and had no test material-related findings at necropsy. When proteins are toxic, they are known to act via acute mechanisms and at very low dose levels ( *Sjoblad, Roy D., et al* . “Toxicological Considerations for Protein Components of Biological Pesticide Products,” Regulatory Toxicology and Pharmacology 15, 3-9 (1992)). Therefore, since no effects were shown to be caused by the plant-incorporated protectants, even at relatively high dose levels, the mCry3A protein is not considered toxic. Further, amino acid sequence comparisons showed no similarity between the mCry3A protein and known toxic proteins available in public protein data bases. According to the Codex Alimintarius guidelines, the assessment of potential toxicity also includes stability to heat (FAO/WHO Standards Programme, 2001). Further data demonstrate that mCry3A is inactivated against Western corn rootworm, when heated to 95 °C for 30 minutes. Since mCry3A is a protein, allergenic sensitivities were considered. Current scientific knowledge suggests that common food allergens tend to be resistant to degradation by acid, and proteases; may be glycosylated; and present at high concentrations in the food. Data have been submitted that demonstrate that the mCry3A protein is rapidly degraded by gastric fluid *in vitro* . In a solution of simulated gastric fluid 1 milligrams/milliliter (mg/mL) mCry3A test protein mixed with simulated gastric fluid (pH 1.2, containing 2 mg/mL NaCl, 14 μL 6 N HCl, and 2.7 mg/mL pepsin) resulting in 10 pepsin activity units/microgram (μg) protein (complies with year 2000 U.S. Pharmacopoeia recommendations), complete degradation of detectable mCry3A protein occurred within 2 minutes. A comparison of amino acid sequences of known allergens uncovered no evidence of any homology with mCry3A, even at the level of eight contiguous amino acids residues. Further, data demonstrate that mCry3A is not glycosylated, and is present in low levels in corn tissue. Therefore, the potential for the mCry3A protein to be a food allergen is minimal. As noted above, toxic proteins typically act as acute toxins with low dose levels. Therefore, since no effects were shown to be caused by the plant-incorporated protectant, even at relatively high dose levels, the mCry3A protein is not considered toxic. IV. Aggregate Exposures In examining aggregate exposure, section 408 of the FFDCA directs EPA to consider available information concerning exposures from the pesticide residue in food and all other non-occupational exposures, including drinking water from ground water or surface water and exposure through pesticide use in gardens, lawns, or buildings (residential and other indoor uses). The Agency has considered available information on the aggregate exposure levels of consumers (and major identifiable subgroups of consumers) to the pesticide chemical residue and to other related substances. These considerations include dietary exposure under the tolerance exemption and all other tolerances or exemptions in effect for the plant-incorporated protectant chemical residue, and exposure from non-occupational sources. Exposure via the skin or inhalation is not likely since the plant-incorporated protectant is contained within plant cells, which essentially eliminates these exposure routes or reduces these exposure routes to negligible. Exposure via residential or lawn use to infants and children is also not expected because the use sites for the mCry3A protein are all agricultural for control of insects. Oral exposure, at very low levels, may occur from ingestion of processed corn products and, potentially, drinking water. However, oral toxicity testing done at a dose in excess of 2 grams/kilogram (gm/kg) showed no adverse effects. Furthermore, the expression of the modified Cry3A protein in corn kernals has been shown to be in the parts per million range, which makes the expected dietary exposure several orders of magnitude lower than the amounts of mCry3A protein shown to have no toxicity. Therefore, even if negligible aggregate exposure should occur, the Agency concludes that such exposure would present reasonable certainty of no harm due to the lack of mammalian toxicity and the rapid digestibility demonstrated for the mCry3A protein. V. Cumulative Effects Pursuant to FFDCA section 408(b)(2)(D)(v), EPA has considered available information on the cumulative effects of such residues and other substances that have a common mechanism of toxicity. These considerations included the cumulative effects on infants and children of such residues and other substances with a common mechanism of toxicity. Because there is no indication of mammalian toxicity, resulting from the plant-incorporated protectant, we conclude that there are no cumulative effects for the mCry3A protein. VI. Determination of Safety for U.S. Population, Infants and Children A. Toxicity and Allergenicity Conclusions The data submitted and cited regarding potential health effects for the mCry3A protein include the characterization of the expressed mCry3A protein in corn, as well as the acute oral toxicity, and *in vitro* digestibility of the proteins. The results of these studies were determined applicable to evaluate human risk, and the validity, completeness, and reliability of the available data from the studies were considered. Adequate information was submitted to show that the mCry3A protein test material derived from microbial cultures was biochemically and functionally similar to the protein produced by the plant-incorporated protectant ingredients in corn. Production of microbially produced protein was chosen in order to obtain sufficient material for testing. The acute oral toxicity data submitted supports the prediction that the mCry3A protein would be non-toxic to humans. As mentioned above, when proteins are toxic, they are known to act via acute mechanisms and at very low dose levels (Sjoblad, Roy D., et al. “Toxicological Considerations for Protein Components of Biological Pesticide Products,” Regulatory Toxicology and Pharmacology 15, 3-9 (1992)). Since no effects were shown to be caused by mCry3A protein, even at relatively high dose levels (2,377 mg/kg bwt), the mCry3A protein is not considered toxic. This is similar to the Agency position regarding toxicity and the requirement of residue data for the microbial *Bacillus thuringiensis* products from which this plant-incorporated protectant was derived. (See 40 CFR 158.740(b)(2)(i). Moreover, mCry3A showed no sequence similarity to any known toxin and was inactivated by heat against Western corn rootworm. No further toxicity testing and residue data were required because for microbial products, further toxicity testing and residue data requirements are triggered by significant acute effects in studies such as the mouse oral toxicity study to verify the observed effects and clarify the source of these effects (Tiers II and III). Modified Cry3A protein residue chemistry data were not required for a human health effects assessment of the subject plant-incorporated protectant ingredients because of the lack of mammalian toxicity. However, data submitted demonstrated low levels of mCry3A in corn tissues with less than 2 μg mCry3A protein/gram dry weight in kernals and less than 30 μg mCry3A protein/gram dry weight of whole corn plant. Since modified Cry3A is a protein, its potential allergenicity is also considered as part of the toxicity assessment. Data considered as part of the allergenicity assessment include that the modified Cry3A protein came from *Bacillus thuringiensis* which is not a known allergenic source, showed no sequence similarity to known allergens, was readily degraded by pepsin, and was not glycosylated when expressed in the plant. Therefore, there is a reasonable certainty that modified Cry3A protein will not be an allergen. Neither available information concerning the dietary consumption patterns of consumers (and major identifiable subgroups of consumers including infants and children) nor safety factors that are generally recognized as appropriate for the use of animal experimentation data were evaluated. The lack of mammalian toxicity at high levels of exposure to the mCry3A protein, as well as the minimal potential to be a food allergen demonstrate the safety of the product at levels well above possible maximum exposure levels anticipated in the crop. The genetic material necessary for the production of the plant-incorporated protectant active ingredients are the nucleic acids (DNA, RNA) which comprise genetic material encoding these proteins and their regulatory regions. The genetic material (DNA, RNA), necessary for the production of mCry3A protein has been exempted under the blanket exemption for all nucleic acids (40 CFR 174.475). B. Infants and Children Risk Conclusions FFDCA section 408(b)(2)(C) provides that EPA shall assess the available information about consumption patterns among infants and children, special susceptibility of infants and children to pesticide chemical residues and the cumulative effects on infants and children of the residues and other substances with a common mechanism of toxicity. In addition, FFDCA section 408(b)(2)(C) also provides that EPA shall apply an additional tenfold margin of safety, also referred to as margins of exposure (MOEs), for infants and children in the case of threshold effects to account for prenatal and postnatal toxicity and the completeness of the data base unless EPA determines that a different MOE will be safe for infants and children. In this instance, based on all the available information, the Agency concludes that there is a finding of no toxicity for the mCry3A protein and the genetic material necessary for their production. Thus, there are no threshold effects of concern to infants and children when the mCry3A protein is used as a plant-incorporated protectant. Accordingly, the Agency concludes that the additional MOE is not necessary to protect infants and children, and that not adding any additional MOE will be safe for infants and children. C. Overall Safety Conclusion There is a reasonable certainty that no harm will result from aggregate exposure to the U.S. population, including infants and children, to the mCry3A protein and the genetic material necessary for its production. This includes all anticipated dietary exposures and all other exposures for which there is reliable information. The Agency has arrived at this conclusion because, as discussed above, no toxicity to mammals has been observed, nor any indication of allergenicity potential for the plant-incorporated protectant. VII. Other Considerations A. Endocrine Disruptors The pesticidal active ingredient is a protein, derived from sources that are not known to exert an influence on the endocrine system. Therefore, the Agency is not requiring information on the endocrine effects of the plant-incorporated protectant at this time. B. Analytical Method(s) A method for extraction and ELISA analysis of mCry3A protein in corn has been submitted and found acceptable by the Agency. C. Codex Maximum Residue Level No Codex maximum residue levels exist for the plant-incorporated protectant *Bacillus thuringiensis* mCry3A protein and the genetic material necessary for its production in corn. VIII. Statutory and Executive Order Reviews This final rule establishes an exemption from the requirement of a tolerance under section 408(d) of the FFDCA in response to a petition submitted to the Agency. The Office of Management and Budget
(OMB)has exempted these types of actions from review under Executive Order 12866, entitled *Regulatory Planning and Review* (58 FR 51735, October 4, 1993). Because this rule has been exempted from review under Executive Order 12866 due to its lack of significance, this rule is not subject to Executive Order 13211, *Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use* (66 FR 28355, May 22, 2001). This final rule does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 *et seq* ., or impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act of 1995
(UMRA)(Public Law 104-4). Nor does it require any special considerations under Executive Order 12898, entitled *Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations* (59 FR 7629, February 16, 1994); or OMB review or any Agency action under Executive Order 13045, entitled *Protection of Children from Environmental Health Risks and Safety Risks* (62 FR 19885, April 23, 1997). This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 note). Since tolerances and exemptions that are established on the basis of a petition under section 408(d) of the FFDCA, such as the exemption from the requirement of a tolerance in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act
(RFA)(5 U.S.C. 601 *et seq* .) do not apply. 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. IX. Congressional Review Act The Congressional Review Act, 5 U.S.C. 801 *et seq* ., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of this final rule in the **Federal Register** . This final rule is not a “major rule” as defined by 5 U.S.C. 804(2). List of Subjects in 40 CFR Part 180 Environmental protection, Administrative practice and procedure, Agricultural commodities, Pesticides and pests, Reporting and recordkeeping requirements. Dated: September 29, 2006. James Jones, Director, Office of Pesticide Programs. Therefore, 40 CFR chapter I is amended as follows: PART 174—AMENDED 1. The authority citation for part 174 continues to read as follows: Authority: 21 U.S.C. 321(q), 346a and 371. 2. Section 174.456 is revised to read as follows: § 174.456 Bacillus thuringiensis modified Cry3A protein (mCry3A) and the genetic material necessary for its production in corn. *Bacillus thuringiensis* modified Cry3A protein (mCry3A) and the genetic material necessary for its production in corn is exempt from the requirement of a tolerance when used as plant-incorporated protectant in the food and feed commodities of field corn, sweet corn and popcorn. Genetic material necessary for its production means the genetic material which comprise genetic material encoding the mCry3A protein and its regulatory regions. Regulatory regions are the genetic material, such as promoters, terminators, and enhancers, that control the expression of the genetic material encoding the mCry3A protein. [FR Doc. E6-18223 Filed 10-31-06; 8:45 am] BILLING CODE 6560-50-S DEPARTMENT OF HOMELAND SECURITY Federal Emergency Management Agency 44 CFR Part 67 Final Flood Elevation Determinations AGENCY: Federal Emergency Management Agency (FEMA), Department of Homeland Security, Mitigation Division. ACTION: Final rule. SUMMARY: Base (1% annual chance) Flood Elevations
(BFEs)and modified BFEs are made final for the communities listed below. The BFEs and modified BFEs are the basis for the floodplain management measures that each community is required either to adopt or to show evidence of being already in effect in order to qualify or remain qualified for participation in the National Flood Insurance Program (NFIP). EFFECTIVE DATES: The date of issuance of the Flood Insurance Rate Map
(FIRM)showing BFEs and modified BFEs for each community. This date may be obtained by contacting the office where the maps are available for inspection as indicated on the table below. ADDRESSES: The final BFEs for each community are available for inspection at the office of the Chief Executive Officer of each community. The respective addresses are listed in the table below. FOR FURTHER INFORMATION CONTACT: William R. Blanton, Jr., CFM, Acting Section Chief, Engineering Management Section, Mitigation Division, 500 C Street SW., Washington, DC 20472,
(202)646-3151. SUPPLEMENTARY INFORMATION: FEMA makes the final determinations listed below for the modified BFEs for each community listed. These modified elevations have been published in newspapers of local circulation and ninety
(90)days have elapsed since that publication. The Mitigation Division Director has resolved any appeals resulting from this notification. This final rule is issued in accordance with Section 110 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and 44 CFR part 67. The Agency has developed criteria for floodplain management in floodprone areas in accordance with 44 CFR part 60. Interested lessees and owners of real property are encouraged to review the proof Flood Insurance Study and FIRM available at the address cited below for each community. The BFEs and modified BFEs are made final in the communities listed below. Elevations at selected locations in each community are shown. *National Environmental Policy Act.* This rule is categorically excluded from the requirements of 44 CFR Part 10, Environmental Consideration. No environmental impact assessment has been prepared. *Regulatory Flexibility Act.* As flood elevation determinations are not within the scope of the Regulatory Flexibility Act, 5 U.S.C. 601-612, a regulatory flexibility analysis is not required. *Regulatory Classification.* This final rule is not a significant regulatory action under the criteria of Section 3(f) of Executive Order 12866 of September 30, 1993, Regulatory Planning and Review, 58 FR 51735. *Executive Order 13132, Federalism.* This rule involves no policies that have federalism implications under Executive Order 13132. *Executive Order 12988, Civil Justice Reform.* This rule meets the applicable standards of Executive Order 12988. List of Subjects in 44 CFR Part 67 Administrative practice and procedure, flood insurance, reporting and recordkeeping requirements. Accordingly, 44 CFR Part 67 is amended as follows: PART 67—[AMENDED] 1. The authority citation for Part 67 continues to read as follows: Authority: 42 U.S.C. 4001 *et seq.* ; Reorganization Plan No. 3 of 1978, 3 CFR, 1978 Comp., p. 329; E.O. 12127, 44 FR 19367, 3 CFR, 1979 Comp., p. 376. § 67.11 [Amended] 2. The tables published under the authority of § 67.11 are amended as follows: State City/town/county Source of flooding Location #Depth in feet above ground *Elevation in feet
(NGVD)+Elevation in feet
(NAVD)Modified Madera County, California Docket No.: FEMA-B-7432 California Madera County San Joaquin River At State Highway 145 *225 Just upstream of State Highway 99 *244 Approximately 5,000 feet upstream of Atchison, Topeka and Santa Fe Railroad *251 # Depth in feet above ground. * National Geodetic Vertical Datum. + North American Vertical Datum. ADDRESSES Madera County Unincorporated Areas Maps are available for inspection at the Madera County Planning Department, 135 West Yosemite Avenue, Madera, California 93637. San Joaquin County, California Docket No.: FEMA-B-7445 California San Joaquin County Stanislaus River Approximately 5 miles downstream of State Highway 99 *45 Approximately 3 miles upstream of Santa Fe Railroad *93 California City of Ripon, San Joaquin County Stanislaus River Approximately 3.3 miles downstream of State Highway 99 *48 Approximately 1.3 miles upstream of State Highway 99 *57 # Depth in feet above ground. * National Geodetic Vertical Datum. + North American Vertical Datum. ADDRESSES San Joaquin County Unincorporated Areas Maps are available for inspection at the Department of Public Works, 1810 East Hazelnut Avenue, Stockton, California 95202. City of Ripon Maps are available for inspection at City Hall, 259 North Wilma Avenue, Ripon, California 95366. Shasta County, California Docket No.: FEMA-B-7453 California City of Redding, Shasta County Churn Creek Approximately 250 feet upstream of (Upper) Churn Creek Road *465 Approximately 3,350 feet upstream of (Upper) Churn Creek Road *471 California Shasta County Churn Creek At the confluence of Churn Creek and the Sacramento River *410 Approximately 250 feet upstream of (Upper) Churn Creek Road *465 # Depth in feet above ground. * National Geodetic Vertical Datum. + North American Vertical Datum. ADDRESSES City of Redding Maps are available for inspection at the County Courthouse, 1855 Placier Street, Redding, California 96001. Shasta County Unincorporated Areas Maps are available for inspection at City Hall, 777 Cypress Avenue, 1st Floor, Redding, California 96001. Linn County, Iowa Docket No.: FEMA-B-7453 Iowa Linn County Long Branch Creek Just upstream of Highway 11 +735 Approximately 1,800 feet downstream of Iva Road +737 Iowa Linn County West Yellow Creek Approximately 2,000 feet downstream +727 Just downstream of Highway 11 +734 # Depth in feet above ground. * National Geodetic Vertical Datum. + North American Vertical Datum. ADDRESSES Linn County Unincorporated Areas Maps are available for inspection at the Linn County, County Courthouse 108 North High Street, Linneus, Missouri 64653. Tama County, Iowa Docket No.: FEMA-B-7453 Iowa Tama County Deer Creek Approximately 2,700 feet upstream of confluence of Deer Creek with Iowa River +819 Approximately 400 feet downstream of 13th Street +823 Iowa Tama County Iowa River Approximately 1,400 feet downstream of Iowa River +784 Approximately 2 miles upstream of Station Street +788 Iowa Tama County Iowa River at City of Tama Approximately 7,000 feet downstream of U.S highway 63 +814 Approximately 1,800 feet upstream of confluence of Deer Creek with Iowa River +819 Iowa Tama County Mud Creek At confluence with Iowa River +814 Just downstream of 9th Street +836 Iowa Tama County Otter Creek Just west of the intersection of Station Street Highway 212 +785 # Depth in feet above ground. * National Geodetic Vertical Datum. + North American Vertical Datum. ADDRESSES Tama County Unincorporated Areas: Maps are available for inspection at the 100 North Main Street, Toledo, Iowa 52342. Plymouth County, Massachusetts Docket No.: FEMA-D-7624 Massachusetts Town of Marshfield, Plymouth County Massachusetts Bay, Duxbury Marsh Approximately 300 feet southwest of the intersection of Careswell Street and Colby Hewitt Lane *10 Approximately 1,700 feet southeast of the intersection of Careswell Street and Colby Hewitt Lane *13 Massachusetts Town of Marshfield, Plymouth County Massachusetts Bay Approximately 1,500 feet north of the intersection of Bay Street and Canal Street *11 Approximately 896 feet east of the intersection of Cove Street and Central Street *23 Massachusetts Town of Marshfield, Plymouth County Massachusetts Bay, Green Harbor River Approximately 400 feet west of the intersection of Meetinghouse Lane and Stagecoach Drive *10 Massachusetts Town of Marshfield, Plymouth County Massachusetts Bay At the intersection of Hancock Street and Ashburton Avenue #2 # Depth in feet above ground. * National Geodetic Vertical Datum. + North American Vertical Datum. ADDRESSES Plymouth County Unincorporated Areas Maps available for inspection at the Marshfield Town Hall, Building Department, 870 Moraine Street, Marshfield, Massachusetts. Town of Marshfield Maps available for inspection at the Marshfield Town Hall, Building Department, 870 Moraine Street, Marshfield, Massachusetts. Burleigh County, North Dakota Docket No.: FEMA-B-7439 North Dakota City of Bismarck, Burleigh County Missouri River Approximately 3.8 miles upstream of confluence of Little Heart River *1,632 Approximately 1.7 miles upstream of Old Brunt Creek *1,639 North Dakota Burleigh County Missouri River Approximately 500 feet downstream of confluence of Apple Creek *1,628 Approximately 5.7 miles upstream of confluence Square Butte Creek *1,644 North Dakota Burleigh County Brunt Creek At confluence with Missouri River *1,640 Just upstream of North Dakota Highway 1804 *1,650 # Depth in feet above ground. * National Geodetic Vertical Datum. + North American Vertical Datum ADDRESSES City of Bismarck Maps are available for inspection at the Building Inspection Office, 1020 East Central Avenue, Bismarck, North Dakota 58501. Burleigh County Unincorporated Areas Maps are available for inspection at the Building Inspection Office, 1020 East Central Avenue, Bismarck, North Dakota 58501. Burleigh County, North Dakota Docket No.: FEMA-B-7449 North Dakota City of Lincoln, Burleigh County Apple Creek Just upstream of Railroad +1,644 Approximately 5,000 feet downstream of confluence of Hay Creek +1,646 # Depth in feet above ground. * National Geodetic Vertical Datum. + North American Vertical Datum. ADDRESSES City of Lincoln Maps are available for inspection at City Hall, 74 Santee Road, Lincoln, North Dakota 58504. Summit County, Utah Docket No.: FEMA-B-7453 Utah Summit County East Canyon Creek Approximately 2,200 feet upstream of confluence with Threemile Canyon Creek +6,313 Approximately 150 feet of upstream of Bitner Branch Road +6,375 Utah Summit County Kimball Creek At confluence with North Parkley's Park Drainage +6,375 Just downstream of Old Ranch Road Canal +6,438 Utah Summit County McLeod Creek At Canal Entrance Culvert +6,506 Approximately 350 feet +6,629 Utah Summit County North Parkley's Park Drainage At the confluence with Kimball Creek +6,375 Approximately 15,800 feet upstream of confluence with Kimball Creek +6,430 Utah Summit County Red Pine Creek At confluence with McLeod Creek +6,538 Approximately 100 feet downstream of Route 224 +6,694 Utah Summit County McLeod Creek through Quarry Mountain Just upstream of Old Ranch Road Canal +6,438 At divergence from McLeod Creek +6,584 # Depth in feet above ground. * National Geodetic Vertical Datum. + North American Vertical Datum. ADDRESSES Summit County Unincorporated Areas: Maps are available for inspection at Summit County Courthouse, 60 North Main, Coalville, Utah 84017. Shenandoah County, Virginia Docket No.: FEMA-B-7453 Virginia Shenandoah County Stony Creek Approximately 1,150 feet downstream of Dellinger Acres Road *1,082 Approximately 1.63 miles upstream of Lake Laura Dam *1,375 # Depth in feet above ground. * National Geodetic Vertical Datum. + North American Vertical Datum. ADDRESSES Shenandoah County Unincorporated Areas Maps are available for inspection at Planning and Zoning Office, 600 North Main Street, Suite 107, Woodstock, VA 22664. Ferry County, Washington Docket No.: FEMA-B-7453 Washington Ferry County Sanpoil River At border with Colville Indian Reservation +2,025 Approximately 600 feet upstream of Fish Hatchery Road (Route 21) +2,430 # Depth in feet above ground. * National Geodetic Vertical Datum. + North American Vertical Datum. ADDRESSES Ferry County Unincorporated Areas Maps are available for inspection at County Courthouse, 290 East Tessie Avenue, Republic, Washington 99166. Flooding source(s) Location of referenced elevation * Elevation in feet
(NGVD)+ Elevation in feet
(NAVD)# Depth in feet above ground Modified Communities affected Fresno County, California and Incorporated Areas Docket No.: FEMA-B-7432 San Joaquin River At State Highway 145 Just upstream of State Highway 99 Approximately 5,000 feet upstream of Atchison, Topeka and Santa Fe Railroad * 225 * 244 * 251 City of Fresno, Fresno County (Unincorporated Areas). # Depth in feet above ground * National Geodetic Vertical Datum + North American Vertical Datum ADDRESSES Fresno County (Unincorporated Areas) Maps are available for inspection at the Fresno County Department of Public Works and Planning, 2220 Tulare Street, Fresno, California 93721. City of Fresno Maps are available for inspection at City Hall, 2600 Fresno Street, Room 3043, Fresno, California 93721. Merced County, California and Incorporated Areas Docket No.: FEMA-B-7437 Bear Creek At McKee Road * 183 Merced County (Unincorporated Areas). Just upstream of Bear Creek Drive * 255 Black Rascal At confluence with Bear Creek * 199 Merced County (Unincorporated Areas). Diversion Channel Approximately 3,700 feet upstream of East Olive Avenue * 202 Merced County (Unincorporated Areas). Local Ponding Northeast of the intersection of East Childs Avenue and the Fairfield Canal * 200 Merced County (Unincorporated Areas), City of Merced. Northeast of the intersection of Mission Avenue and South Arboleda Drive * 200 Local Ponding Northeast of the intersection of East Childs Avenue and Tower Road * 196 Merced County (Unincorporated Areas), City of Merced. Southeast of the intersection of Le Grand Road and US Highway 99 * 196 Northeast of the intersection of Gerarad Avenue and the Fairfield Canal * 196 Local Ponding Northeast of the intersection of Mission Avenue and the Fairfield Canal * 193 Merced County (Unincorporated Areas), City of Merced. Northeast of the intersection of East Childs Avenue and Kirby Road * 191 Local Ponding Northeast of the intersection of State Highway 140 and East Street * 190 Merced County (Unincorporated Areas), City of Merced. Southeast of the intersection of US Highway 99 and Mariposa Way * 189 Local Ponding Northeast and Southeast of the intersection of East Childs Avenue and the Hartley Bradley Lateral * 186 Merced County (Unincorporated Areas), City of Merced. Local Ponding Southeast of the intersection of US Highway 99 and Vassar Avenue * 183 Merced County (Unincorporated Areas). Local Ponding Southeast of the intersection of US Highway 99 and Mission Avenue * 179 Merced County (Unincorporated Areas). Northeast of the intersection of Sandy Mush Road and Givens-Lustre Road * 179 Local Ponding Northeast and Southeast of the intersection of US Highway 99 and McHenry Road * 185 Merced County (Unincorporated Areas). Local Ponding Southeast of the intersection of East Childs Avenue and Carol Avenue * 176 City of Merced. Local Ponding Northeast of the intersection of Mission Avenue and Tyler Road * 165 Merced County (Unincorporated Areas). Local Ponding Northeast of the intersection of Healy Road and Deadman Creek * 164 Merced County (Unincorporated Areas). Local Ponding Northeast of the intersection of State Highway 59 and Duck Slough * 151 Merced County (Unincorporated Areas). Local Ponding Northeast of the intersection of Mariposa Way and Burchell Avenue * 237 Merced County (Unincorporated Areas). Local Ponding Northeast of the intersection of Gerard Avenue and Plainsburg Avenue * 226 Merced County (Unincorporated Areas). Local Ponding Southeast of the intersection of Kadota Avenue and Plainsburg Road * 222 Merced County (Unincorporated Areas). Shallow Flooding From the intersection of Woodland Avenue South and West to State Highway 59 # 1 Merced County (Unincorporated Areas), City of Merced. From the AT & SF Railroad West to State Highway 59 # 1 Shallow Flooding From the AT & SF Railroad West to State Highway 59 # 2 Merced County (Unincorporated Areas). Shallow Flooding Northeast of the intersection of State Highway 59 and Duck Slough # 3 Merced County (Unincorporated Areas). # Depth in feet above ground. * National Geodetic Vertical Datum. + North American Vertical Datum. ADDRESSES Merced County (Unincorporated Areas) Maps are available for inspection at Merced County Department of Public Works, 715 Martin Luther King Jr. Way, Merced, California 95340. City of Merced Maps are available for inspection at City Hall, 678 West 18th Street, Merced, California 95340. Coweta County, Georgia and Incorporated Areas Docket No.: FEMA-B-7453 Little Wahoo Creek Approximately 130 feet upstream of confluence with Wahoo Creek + 800 Coweta County (Unincorporated Areas). Approximately 1,100 feet upstream of confluence with Wahoo Creek + 800 Snake Creek Approximately 170 feet upstream of confluence with Wahoo Creek + 796 Coweta County (Unincorporated Areas). Approximately 4,200 feet upstream of confluence with Wahoo Creek + 801 Tributary 1 to Persimmon Creek At confluence with Persimmon Creek + 866 Coweta County (Unincorporated Areas). Approximately 120 feet upstream of confluence with Permission Creek + 866 Tributary 1 to Snake Creek At confluence with Snake Creek + 873 City of Newman. Approximately 40 feet upstream of confluence with Snake Creek + 873 Tributary 2 to Mineral Spring Branch At confluence with Mineral Spring Branch + 830 Coweta County (Unincorporated Areas). Approximately 780 feet upstream of Fourth Street + 830 Tributary 2 to Sandy Creek At confluence with Tributary 3 to Sandy Creek + 793 Coweta County (Unincorporated Areas). Approximately 30 feet upstream of confluence with Tributary 3 to Sandy Creek + 793 Tributary 2 to Shoal Creek Approximately 500 feet upstream of confluence with Shoal Creek + 839 Coweta County (Unincorporated Areas). Approximately 1,720 feet upstream of confluence with Shoal Creek + 839 Tributary 3 to Shoal Creek Approximately 140 feet upstream of confluence with Shoal Creek + 854 Coweta County (Unincorporated Areas). Approximately 500 feet upstream of confluence with Shoal Creek + 854 Tributary 3 to Wahoo Creek Approximately 110 feet upstream of confluence with Tributary 2 to Wahoo Creek + 868 City of Newman. Just downstream of Bullsboro Drive/State Highway 34 + 869 Tributary 4 to Wahoo Creek Approximately 100 feet upstream of confluence with Tributary 3 to Wahoo Creek + 873 City of Newman. Approximately 650 feet upstream of confluence with Tributary 3 to Wahoo Creek + 873 Tributary 6 to Wahoo Creek At confluence with Tributary 2 to Wahoo Creek + 881 City of Newman. Approximately 160 feet upstream of confluence with Tributary 2 to Wahoo Creek + 881 Tributary 9 to Wahoo Creek At confluence with Wahoo Creek + 875 City of Newman. Approximately 600 feet upstream of confluence with Wahoo Creek + 875 Tributary 10 to Wahoo Creek Approximately 220 feet upstream of confluence with Wahoo Creek + 882 City of Newman. Approximately 420 feet upstream of confluence with Wahoo Creek + 882 Tributary 12 to Wahoo Creek At confluence with Wahoo Creek + 891 City of Newman. Approximately 270 feet upstream of confluence with Wahoo Creek + 896 # Depth in feet above ground. * National Geodetic Vertical Datum. + North American Vertical Datum. ADDRESSES City of Newman Maps are available for inspection at the Community Map Repository, 25 LaGrange Street, Newman, Georgia. Coweta County (Unincorporated Areas) Maps are available for inspection at the Community Map Repository, 22 East Broad Street, Newman, Georgia. Henry County, Georgia and Incorporated Areas Docket Nos.: FEMA-B-7454 and FEMA-P7903 Little Cotton Indian Creek At confluence with Big Cotton Indian Creek + 655 Henry County (Unincorporated Areas). Approximately 1,000 feet upstream of the confluence with Big Cotton Indian Creek + 655 # Depth in feet above ground. * National Geodetic Vertical Datum. + North American Vertical Datum. ADDRESSES Henry County, Georgia (Unincorporated Areas) Maps are available for inspection at the Community Map Repository, 140 Henry Parkway, McDonough, Georgia 30253. Berrien County, Michigan and Incorporated Areas Docket No.: FEMA-B-7453 Bedortha Drain Just downstream of Lake Street * 617 City of Bridgman. 250 feet upstream of Railroad * 637 Bridgman City Drain Confluence of Bedortha Drain * 627 City of Bridgman. Approximately 1,250 feet upstream of Railroad * 644 Bridgman Drain Tributary Confluence with Bridgman City Drain * 631 City of Bridgman. Approximately 370 feet downstream of Railroad * 632 Lake Michigan Shoreline for entire county * 585 Benton Township, Benton Harbor, Bridgman, Chikaming Township, Grand Beach, Hagar Township, Lake Township, Lincoln Township, Michiana, New Buffalo, New Buffalo Township, Shoreham, St. Joseph. Tanner Creek Confluence with Lake Michigan * 585 City of Bridgman. Confluence with Bedortha Drain * 617 William & Esseg Drain Confluence with Tanner Creek * 617 City of Bridgman. Bridgman City Limit * 630 # Depth in feet above ground. * National Geodetic Vertical Datum. + North American Vertical Datum. ADDRESSES City of Benton Harbor Maps are available for inspection at Benton Harbor City Hall, 200 E. Wall Street, Benton Harbor, Michigan 49023. Benton Township Maps are available for inspection at Inspection Department—Benton Township, 1725 Territorial Road, Benton Harbor, Michigan 49022. City of Bridgman Maps are available for inspection at Bridgman City Hall, 9765 Maple Street, Bridgman, Michigan 49106. Chikaming Township Maps are available for inspection at Chikaming Township, 14900 Lakeside Road, Lakeside, Michigan 49116. Village of Grand Beach Maps are available for inspection at Village Office of Grand Beach, 48200 Perkins Boulevard, Grand Beach, Michigan 49117. Hagar Township Maps are available for inspection at Hager Township Hall, 3900 Riverside, Riverside, Michigan 49084. Lake Township Maps are available for inspection at Lake Township Hall, 3220 Shawnee Road, Bridgman, Michigan 49106. Lincoln Township Maps are available for inspection at 2055 West John Beers Road, Stevensville, Michigan 49127. Village of Michiana Maps are available for inspection at Village of Michiana, 4000 Cherokee Drive, Michiana, Michigan 49117. City of New Buffalo Maps are available for inspection at City Clerks Office—New Buffalo City Hall, 224 West Buffalo Street, New Buffalo, Michigan 49117. New Buffalo Township Maps are available for inspection at Town Hall—New Buffalo Township, 17425 Red Arrow Highway, New Buffalo, Michigan 49117. Village of Shoreham Maps are available for inspection at St. Joseph Town Hall—Building & Zoning Department, 3000 Washington Avenue, St. Joseph, Michigan 49085. City of St. Joseph Maps are available for inspection at City of St. Joseph, 700 Broad Street, St. Joseph, Michigan 49085. Blaine County, Montana and Incorporated Areas Docket No.: FEMA-B-7454 Milk River Approximately 2.5 river miles downstream of U.S Highway 2 + 2,287 Blaine County (Unincorporated Areas), Fort Belknap Indian Reservation. Approximately 4.7 river miles upstream of Kennedy Road + 2,360 Peoples Creek At confluence with Milk River + 2,297 Fort Belknap Indian Reservation. Approximately 11.5 miles upstream of confluence with Milk River (approximately 2.8 miles upstream of Road Bridge) + 2,339 Peoples Creek-Split Flow Approximately 1.2 river miles upstream of confluence with South Dodson Canal + 2,288 Fort Belknap Indian Reservation. Approximately 3.2 river miles upstream of Lodgepole Highway + 2,319 # Depth in feet above ground. * National Geodetic Vertical Datum. + North American Vertical Datum. ADDRESSES Blaine County Unincorporated Areas Maps are available for inspection at the County Courthouse, 400 Ohio Street, Chinook, Montana 59523. Fort Belknap Indian Reservation Maps are available for inspection at the Tribal Office Building, Highway 2 & Route 66, Harlem, Montana 59526. Snohomish County, Washington and Incorporated Areas Docket No.: FEMA-B-7442 Ebey Slough Approximately 1.2 miles downstream of Interstate Highway 5 * 8 Snohomish County (Unincorporated Areas), City of Marysville. At divergence from Snohomish River * 19 Ebey-Steamboat Slough Connector At confluence with Steamboat Slough * 12 Snohomish County (Unincorporated Areas). At divergence from Ebey Slough * 12 Marshland At Burlington Northern Railroad tracks * 20 Snohomish County (Unincorporated Areas) and City of Everett. At divergence from Snohomish River * 23 Snohomish River Approximately 1.2 miles downstream of State Highway 529 * 8 Snohomish County (Unincorporated Areas), City of Monroe, City of Snohomish, and City of Everett. At confluence with Skykomish and Snoqualmie Rivers * 41 Steamboat Slough Approximately 2.08 miles downstream of Burlington Northern Railroad bridge * 8 Snohomish County (Unincorporated Areas), City of Marysville, and City of Everett. At divergence from Snohomish River * 13 Union Slough Approximately 0.24 miles downstream of Burlington Northern Railroad bridge * 8 Snohomish County (Unincorporated Areas) and City of Everett. Approximately 1,270 feet downstream of divergence from Snohomish River * 12 # Depth in feet above ground. * National Geodetic Vertical Datum. + North American Vertical Datum. ADDRESSES Unincorporated Areas of Snohomish County Maps are available for inspection at the Snohomish County Planning Department, 3000 Rockefeller Avenue, Everett, Washington 98201. City of Monroe Maps are available for inspection at the Engineering Department, City Hall, 806 West Main Street, Monroe, Washington 98272. City of Marysville Maps are available for inspection at the Public Works Department, 80 Columbia Avenue, Marysville, Washington 98270. City of Everett Maps are available for inspection at the Public Works Department, 3200 Cedar Street, Everett, Washington 98201. City of Snohomish Maps are available for inspection at the Engineering Department, 116 Union Avenue, Snohomish, Washington 98290. (Catalog of Federal Domestic Assistance No. 83.100, “Flood Insurance.”) Dated: October 18, 2006. David I. Maurstad, Director, Mitigation Division, Federal Emergency Management Agency, Department of Homeland Security. [FR Doc. E6-18306 Filed 10-31-06; 8:45 am] BILLING CODE 9110-12-P DEPARTMENT OF HOMELAND SECURITY Federal Emergency Management Agency 44 CFR Part 67 Final Flood Elevation Determinations AGENCY: Federal Emergency Management Agency (FEMA), Department of Homeland Security, Mitigation Division. ACTION: Final rule. SUMMARY: Base (1% annual chance) Flood Elevations
(BFEs)and modified BFEs are made final for the communities listed below. The BFEs and modified BFEs are the basis for the floodplain management measures that each community is required either to adopt or to show evidence of being already in effect in order to qualify or remain qualified for participation in the National Flood Insurance Program (NFIP). EFFECTIVE DATE: The date of issuance of the Flood Insurance Rate Map
(FIRM)showing BFEs and modified BFEs for each community. This date may be obtained by contacting the office where the maps are available for inspection as indicated on the table below. ADDRESSES: The final BFEs for each community are available for inspection at the office of the Chief Executive Officer of each community. The respective addresses are listed in the table below. FOR FURTHER INFORMATION CONTACT: William R. Blanton, Jr., CFM, Acting Section Chief, Engineering Management Section, Mitigation Division, 500 C Street, SW., Washington, DC 20472,
(202)646-3151. SUPPLEMENTARY INFORMATION: FEMA makes the final determinations listed below for the modified BFEs for each community listed. These modified elevations have been published in newspapers of local circulation and ninety
(90)days have elapsed since that publication. The Mitigation Division Director has resolved any appeals resulting from this notification. This final rule is issued in accordance with Section 110 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and 44 CFR part 67. The Agency has developed criteria for floodplain management in floodprone areas in accordance with 44 CFR part 60. Interested lessees and owners of real property are encouraged to review the proof Flood Insurance Study and FIRM available at the address cited below for each community. The BFEs and modified BFEs are made final in the communities listed below. Elevations at selected locations in each community are shown. National Environmental Policy Act. This rule is categorically excluded from the requirements of 44 CFR part 10, Environmental Consideration. No environmental impact assessment has been prepared. *Regulatory Flexibility Act.* As flood elevation determinations are not within the scope of the Regulatory Flexibility Act, 5 U.S.C. 601-612, a regulatory flexibility analysis is not required. *Regulatory Classification.* This final rule is not a significant regulatory action under the criteria of Section 3(f) of Executive Order 12866 of September 30, 1993, Regulatory Planning and Review, 58 FR 51735. *Executive Order 13132, Federalism.* This rule involves no policies that have federalism implications under Executive Order 13132. *Executive Order 12988, Civil Justice Reform.* This rule meets the applicable standards of Executive Order 12988. List of Subjects in 44 CFR Part 67 Administrative practice and procedure, flood insurance, reporting and recordkeeping requirements. Accordingly, 44 CFR part 67 is amended as follows: PART 67—[AMENDED] 1. The authority citation for part 67 continues to read as follows: Authority: 42 U.S.C. 4001 *et seq.;* Reorganization Plan No. 3 of 1978, 3 CFR, 1978 Comp., p. 329; E.O. 12127, 44 FR 19367, 3 CFR, 1979 Comp., p. 376. § 67.11 [Amended] 2. The tables published under the authority of § 67.11 are amended as follows: State City/town/county Source of flooding Location # Depth in feet above ground. * Elevation in feet
(NGVD)+ Elevation in feet
(NAVD)Modified Healdsburg, California Docket No.: FEMA-B-7453 California City of Healdsburg Russian River Just upstream of U.S. Highway 101 *90 Approximately 6,750 feet Railroad *104 Russian River-Split Flow At the Convergence with Russian River *90 At the Divergence from Russian River *99 # Depth in feet above ground. * National Geodetic Vertical Datum. + North American Vertical Datum. ADDRESSES City of Healdsburg Maps are available for inspection at City of Healdsburg, City Hall, 401 Grove Street, Healdsburg, California 95448. Sonoma County, California Docket No.: FEMA-B-7453 California Sonoma County Russian River At confluence with Dry Creek *85 At U.S. Highway 101 *90 # Depth in feet above ground. * National Geodetic Vertical Datum. + North American Vertical Datum. ADDRESSES Sonoma County Unincorporated Areas Maps are available for inspection at Permit and Resource Management Department, 2550 Ventura Avenue, Santa Rosa, California 95403. Silt, Colorado Docket No.: FEMA-B-7454 Colorado Town of Silt Colorado River Approximately 1100 feet upstream of I-70 *5,404 Just downstream of County Road 311 *5,428 # Depth in feet above ground. * National Geodetic Vertical Datum. + North American Vertical Datum. ADDRESSES Town of Silt Maps are available for inspection at the Town Hall, 231 North 7th Street, Silt, Colorado 81652. Knox County, Kentucky Docket No.: FEMA-B-7454 Kentucky Knox County Cumberland River Approximately 6,410 feet southwest of the intersection of Goodin Creek Road and Kentucky State Highway 11 +966 Approximately 4,495 feet upstream of the confluence of Elys Branch +1,014 # Depth in feet above ground. * National Geodetic Vertical Datum. + North American Vertical Datum. ADDRESSES Knox County Unincorporated Areas Maps are available for inspection at Community Map Repository, County Courthouse, 104 Court Square, Barbourville, Kentucky 40906. City of Barbourville Maps are available for inspection at Community Map Repository, County Courthouse, 104 Court Square, Barbourville, Kentucky 40906. Williamsburg, Kentucky Docket No.: FEMA-B-7454 Kentucky City of Williamsburg Cumberland River Just downstream of State Route 204 +906 Approximately 4,570 feet upstream from Goodin Creek +966 # Depth in feet above ground. * National Geodetic Vertical Datum. + North American Vertical Datum. ADDRESSES Whitley County Unincorporated Areas Maps are available for inspection at Community Map Repository, Whitley County Courthouse, 310 Main Street, Williamsburg, Kentucky 40769. City of Williamsburg Maps are available for inspection at Community Map Repository, Williamsburg City Hall, office of Mayor, 116 North Second Street, Williamsburg, Kentucky 40769. Eagle Lake, Maine Docket No.: FEMA-B-7454 Maine Town of Eagle Lake Eagle Lake Entire Shoreline at Eagle Lake within the corporate limits +581 # Depth in feet above ground. * National Geodetic Vertical Datum. + North American Vertical Datum. ADDRESSES Town of Eagle Lake Maps are available for inspection at the 36 Devoe Brook Road, Eagle Lake, Maine 04739. Milan, New Hampshire Docket No.: FEMA-B-7454 New Hampshire Town of Milan Androscoggin River Approximately 7,800 feet of Halt Road extended +1,109 Approximately 1,500 feet upstream of Owens Road extended +1,114 # Depth in feet above ground. * National Geodetic Vertical Datum. + North American Vertical Datum. ADDRESSES Town of Milan Maps are available for inspection at the Town Hall, 20 Bridge Street, Milan, New Hampshire 03588. Lincoln County, Montana Docket No.: FEMA-B-7454 Montana Lincoln County Big Cherry Creek At the confluence with Libby Creek *2,152 Approximately 3,600 feet upstream of Granite Creek Road *2,358 Libby Creek Just upstream of railroad crossing prior to confluence with Kootenai River *2,065 Approximately 3,500 feet upstream of U.S. Route 2 *2,773 # Depth in feet above ground. * National Geodetic Vertical Datum. + North American Vertical Datum. ADDRESSES Lincoln County Unincorporated Areas Maps are available for inspection at the County Courthouse, 512 California Avenue, Libby, Montana 59923. Wakefield, New Hampshire Docket No.: FEMA-B-7454 New Hampshire Town of Wakefield Belleau Lake At Moose Road +584 Entire Shoreline of Belleau Lake above Woodman Lake +584 # Depth in feet above ground. * National Geodetic Vertical Datum. + North American Vertical Datum. ADDRESSES Town of Wakefield Maps are available for inspection at the Map Repository, Town of Wakefield, Assessor's Office, 2 High Street, Sanbornville, New Hampshire 03872. Granville, Pennsylvania Docket No.: FEMA-B-7454 Pennsylvania Township of Granville Strodes Run Approximately at the confluence with Juniata River +490 Approximately 55 feet upstream of Ferguson Valley Road +621 # Depth in feet above ground. * National Geodetic Vertical Datum. + North American Vertical Datum. ADDRESSES Township of Granville Maps are available for inspection at the Granville Municipal Offices, 100 Helen Street Lewistown, Pennsylvania 17044. Oliver, Pennsylvania Docket No.: FEMA-B-7454 Pennsylvania Township of Oliver Strodes Run Approximately at the confluence with Juniata River +490 Approximately 55 feet upstream of Ferguson Valley Road +621 # Depth in feet above ground. * National Geodetic Vertical Datum. + North American Vertical Datum. ADDRESSES Township of Oliver Maps are available for inspection at Municipal Offices, 274 Lockport Road, Lewistown, Pennsylvania 17044. Lewis County, Washington Docket No.: FEMA 7442 Washington Lewis County Newaukum River Confluence with Chehalis River *183 Confluence of North and South Fork Newaukum River *268 Washington Lewis County Newaukum River Overflow Approximately 750 feet upstream of Rice Road *185 Approximately 2.1 miles upstream of Rice Road *199 Washington City of Chehalis Newaukum River Approximately 500 feet upstream of Railroad *184 Approximately 3,650 feet upstream of Railroad *185 Washington City of Chehalis Newaukum River Overflow Approximately 1,200 feet downstream of Rice Road *185 Approximately 750 feet upstream of Rice Road *185 Washington City of Napavine Newaukum River Approximately 2,000 feet downstream of Rush Road *224 Approximately 100 feet upstream of Kirkland Road *240 # Depth in feet above ground. * National Geodetic Vertical Datum. + North American Vertical Datum. ADDRESSES Lewis County Unincorporated Areas Maps are available for inspection at Lewis County Public Works Department, 350 North Market Boulevard, Chehalis, Washington 98532. City of Chehalis Maps are available for inspection at 1321 South Market Boulevard, Chehalis, Washington 98532. City of Napavine Maps are available for inspection at 214 Second Avenue Northeast, Napavine, Washington 98565. Ohio County, West Virginia Docket No.: FEMA B-7454 West Virginia Ohio County Little Wheeling Creek Approximately 475 feet upstream of Middle Wheeling Creek Road *718 Approximately 158 feet upstream of U.S. Route 40 *782 # Depth in feet above ground. * National Geodetic Vertical Datum. + North American Vertical Datum. ADDRESSES Ohio County Unincorporated areas Maps are available for inspection at the City County Building, 1500 Chapline Street, Room 215, Wheeling, West Virginia 26003. Flooding source(s) Location of referenced elevation * Elevation in feet
(NGVD)+ Elevation in feet
(NAVD)# Depth in feet above ground. Modified Communities affected Morgan County, Alabama and Incorporated Areas Docket No.: FEMA D-7606 Bakers Creek Approximately 1,600 feet upstream of the confluence with the Tennessee River +558 Morgan County (Unincorporated Areas), City of Decatur. Approximately 100 feet downstream of West Morgan Road +621 Tributary to Bakers Creek At the confluence with Bakers Creek +595 Morgan County (Unincorporated Areas), City of Decatur. Approximately 150 feet upstream of Cumberland Avenue Southwest +611 Betty Rye Branch Approximately 0.8 mile upstream of the confluence with the Tennessee River +559 Morgan County (Unincorporated Areas), City of Decatur. Approximately 150 feet upstream of Bedford Drive Southwest +607 Black Branch Just upstream of Point Mallard Drive (8th Street southeast) +562 Morgan County (Unincorporated Areas), City of Decatur. Approximately 0.2 mile upstream of Regency Boulevard +566 Brush Creek Approximately 650 feet downstream of Brookmead Road +562 City of Decatur. Approximately 0.2 mile upstream of Royal Drive +568 Chapel Hill Branch Approximately 0.4 mile upstream of the confluence with West Flint Creek +572 Morgan County (Unincorporated Areas), City of Decatur. Approximately 2.0 miles upstream of the confluence with West Flint Creek +594 Clark Spring Branch Approximately 800 feet upstream of the confluence with Brush Creek +568 City of Decatur. Approximately 400 feet upstream of Asheville Drive Southwest +641 Clark Spring Branch Tributary At the confluence with Clark Spring Branch +587 City of Decatur. Approximately 300 feet upstream of Danville Park Drive Southwest +613 Dry Branch Approximately 0.5 mile downstream of Washington Street +559 Morgan County (Unincorporated Areas), City of Decatur. Approximately 900 feet upstream of Runnymead Avenue Southwest +604 North Dinsmore Just downstream of U.S. Highway 31 +564 City of Decatur. Approximately 100 feet upstream of Cedar Lake Road +575 South Dinsmore Middle Tributary Approximately 50 feet downstream of U.S. Highway 31 +564 Morgan County (Unincorporated Areas), City of Decatur. Approximately 250 feet upstream of Spring Avenue +610 South Dinsmore North Tributary At the confluence with South Dinsmore Middle Tributary +567 City of Decatur. Approximately 0.5 mile upstream of Lenwood Road +570 South Dinsmore South Tributary At the confluence with South Dinsmore Middle Tributary +571 Morgan County (Unincorporated Areas), City of Decatur. Approximately 1,600 feet upstream of Central Avenue +576 # Depth in feet above ground. * National Geodetic Vertical Datum. + North American Vertical Datum. ADDRESSES City of Decatur Maps available for inspection at the City of Decatur Building Department, 403 Lee Street Northeast, Fourth floor, Decatur, Alabama 35603. Morgan County Unincorporated Areas Maps available for inspection at the Morgan County Engineering Department, 580 Shull Road, Northeast, Hartselle, Alabama 35601. Harlan County, Kentucky and Incorporated Areas Docket No.: FEMA B-7454 Catron Creek At the confluence of Catron Creek with Martins Fork +1,188 Harlan County (Unincorporated Areas) City of Harlan. Approximately 270 feet upstream of the confluence of Lower Double Branch +1,472 Clover Fork At the confluence of Clover Fork with Cumberland River +1,178 Harlan County (Unincorporated Areas) City of Evarts, City of Harlan. Approximately 1,140 feet upstream of the confluence of Breedens Creek +1,722 Cloverlick Creek At the confluence of Cloverlick Creek with Poor Fork +1,427 City of Loyall Harlan County (Unincorporated Areas) City of Cumberland. Approximately 45 feet upstream of the confluence of Gilley Branch +1,453 Cumberland River Approximately 1,440 feet downstream of the confluence of Jerry's Branch +1,098 Harlan County (Uninc. Areas) City of Loyall, City of Wallins Creek. At the confluence of Clover Fork and Poor Fork +1,178 Looney Creek At the confluence of Looney Creek with Poor Fork +1,437 Harlan County (Uninc. Areas) City of Benham, City of Cumberland, City of Lynch. Approximately 735 feet downstream of the confluence of Long Rock Branch +1,884 Martins Fork At the confluence of Martins Fork with Clover Fork +1,181 Harlan County (Unincorporated Areas) City of Harlan. Approximately 2,990 feet upstream of the confluence of Raccoon Branch +1,264 Poor Fork At the confluence of Poor Fork with Cumberland River +1,178 Harlan County (Unincorporated Areas) City of Cumberland, City of Loyall. Approximately 3,670 feet upstream of the confluence of Coldiron Branch +1,522 Wallins Creek At the confluence of Wallins Creek with Cumberland River +1,133 Harlan County (Unincorporated Areas) City of Wallins Creek. Approximately 175 feet upstream of the confluence of Brock Branch +1,154 Yocum Creek At the confluence of Yocum Creek with Clover Fork +1,300 Harlan County (Unincorporated Areas). Approximately 575 feet downstream of the confluence of Reds Creek +1,519 # Depth in feet above ground. * National Geodetic Vertical Datum. + North American Vertical Datum. ADDRESSES Harlan County (Unincorporated Areas) Maps are available for inspection at the County Courthouse, Harlan, Kentucky 40871. City of Benham Maps are available for inspection at the County Courthouse, Harlan, Kentucky 40871. City of Cumberland Maps are available for inspection at the County Courthouse, Harlan, Kentucky 40871. City of Evarts Maps are available for inspection at the County Courthouse, Harlan, Kentucky 40871. City of Harlan Maps are available for inspection at the County Courthouse, Harlan, Kentucky 40871. City of Loyall Maps are available for inspection at the County Courthouse, Harlan, Kentucky 40871. City of Lynch Maps are available for inspection at the County Courthouse, Harlan, Kentucky 40871. City of Wallins Creek Maps are available for inspection at the County Courthouse, Harlan, Kentucky 40871. Barry County, Missouri and Incorporated Areas Docket Nos.: FEMA B-7453 and B-7454 Unnamed Tributary No. 1 Just upstream of the confluence with Flat Creek +1,309 Barry County (Unincorporated Areas) and City of Cassville. Approximately 2,325 feet upstream of Highway 248 +1,320 Town Branch Approximately 750 feet downstream of Main Street +1,308 City of Cassville. Approximately 2,950 feet upstream of County House Road +1,350 Brock Branch Just upstream of the confluence with Flat Creek +1,310 City of Cassville. Approximately 1,535 feet upstream of the confluence with Flat Creek +1,319 Hawk Branch Approximately 1,220 feet downstream of Presley Drive +1,321 City of Cassville. Approximately 160 feet upstream of Oak Hill Drive +1,338 Flat Creek Approximately 1,500 feet downstream of Thirteenth Street +1,298 Barry County (Unincorporated Areas) and City of Cassville. Approximately 3,100 feet upstream of County Bridge +1,320 Boys Drain Just upstream of the confluence with Unnamed Tributary +1,298 City of Monett. Approximately 220 feet upstream of the Sixth Street +1,338 Chapel Drain Just upstream of the confluence with Kelly Creek +1,328 Barry County (Unincorporated Areas) and City of Monett. At the intersection of Chapel Drain and Cleveland Street (Highway 60) +1,334 Chapel Drain At confluence with Kelly Creek +1,328 City of Monett. Just upstream of Chapel Drive +1,336 Clear Creek Approximately 850 feet downstream of the confluence with Unnamed Tributary +1,245 Barry County (Unincorporated Areas) and City of Monett. Approximately 225 feet upstream of Farm Road 1090 +1,345 Kelly Creek Approximately 300 feet downstream of Diary Street +1,290 Barry County (Unincorporated Areas) and City of Monett. Approximately 4,850 feet upstream of Chapel Drive +1,353 Kelly Creek Tributary Just upstream of the confluence with Kelly Creek +1,303 City of Monett. Approximately 3,700 feet upstream of Cleveland Street +1,366 Tributary # 1 to Unnamed Tributary to Clear Creek At confluence with Unnamed Tributary +1,326 City of Monett. Approximately 750 feet upstream of confluence with Unnamed Tributary +1,333 Unnamed Tributary Just upstream of the confluence with Clear Creek +1,250 Barry County (Unincorporated Areas) and City of Monett. Approximately 1,440 feet upstream of Highway 37 +1,350 Unnamed Tributary to Clear Creek At Lawrence County—Barry County Boundary. +1,285 City of Monett. Approximately 1,075 feet upstream of Missouri State Highway “H” and just downstream of Farm Road 2330. +1,377 # Depth in feet above ground. * National Geodetic Vertical Datum. + North American Vertical Datum. ADDRESSES Barry County (Unincorporated Areas) Missouri Maps are available for inspection at the County Courthouse, 700 Main Street, Cassville, Missouri 65625. City of Cassville Maps are available for inspection at City Hall, 300 Main Street, Cassville, Missouri 65625. City of Monett Maps are available for inspection at City Hall, 217 Fifth Street, Monett, Missouri 65708. (Catalog of Federal Domestic Assistance No. 83.100, “Flood Insurance.”) Dated: October 18, 2006. David I. Maurstad, Director, Mitigation Division, Federal Emergency Management Agency, Department of Homeland Security. [FR Doc. E6-18308 Filed 10-31-06; 8:45 am] BILLING CODE 9110-12-P DEPARTMENT OF HOMELAND SECURITY Federal Emergency Management Agency 44 CFR Part 67 Final Flood Elevation Determinations AGENCY: Federal Emergency Management Agency (FEMA), Department of Homeland Security, Mitigation Division. ACTION: Final rule. SUMMARY: Base (1% annual chance) Flood Elevations
(BFEs)and modified BFEs are made final for the communities listed below. The BFEs and modified BFEs are the basis for the floodplain management measures that each community is required either to adopt or to show evidence of being already in effect in order to qualify or remain qualified for participation in the National Flood Insurance Program (NFIP). EFFECTIVE DATES: The date of issuance of the Flood Insurance Rate Map
(FIRM)showing BFEs and modified BFEs for each community. This date may be obtained by contacting the office where the maps are available for inspection as indicated on the table below. ADDRESSES: The final BFEs for each community are available for inspection at the office of the Chief Executive Officer of each community. The respective addresses are listed in the table below. FOR FURTHER INFORMATION CONTACT: William R. Blanton, Jr., Engineering Management Section, Mitigation Division, 500 C Street SW., Washington, DC 20472,
(202)646-3151. SUPPLEMENTARY INFORMATION: FEMA makes the final determinations listed below for the modified BFEs for each community listed. These modified elevations have been published in newspapers of local circulation and ninety
(90)days have elapsed since that publication. The Mitigation Division Director has resolved any appeals resulting from this notification. This final rule is issued in accordance with Section 110 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and 44 CFR Part 67. The Agency has developed criteria for floodplain management in floodprone areas in accordance with 44 CFR Part 60. Interested lessees and owners of real property are encouraged to review the proof Flood Insurance Study and FIRM available at the address cited below for each community. The BFEs and modified BFEs are made final in the communities listed below. Elevations at selected locations in each community are shown. *National Environmental Policy Act.* This rule is categorically excluded from the requirements of 44 CFR Part 10, Environmental Consideration. No environmental impact assessment has been prepared. *Regulatory Flexibility Act.* As flood elevation determinations are not within the scope of the Regulatory Flexibility Act, 5 U.S.C. 601-612, a regulatory flexibility analysis is not required. *Regulatory Classification.* This final rule is not a significant regulatory action under the criteria of Section 3(f) of Executive Order 12866 of September 30, 1993, Regulatory Planning and Review, 58 FR 51735. *Executive Order 13132, Federalism.* This rule involves no policies that have federalism implications under Executive Order 13132. *Executive Order 12988, Civil Justice Reform.* This rule meets the applicable standards of Executive Order 12988. List of Subjects in 44 CFR Part 67 Administrative practice and procedure, flood insurance, reporting and recordkeeping requirements. Accordingly, 44 CFR Part 67 is amended as follows: PART 67—[AMENDED] 1. The authority citation for Part 67 continues to read as follows: Authority: 42 U.S.C. 4001 *et seq.* ; Reorganization Plan No. 3 of 1978, 3 CFR, 1978 Comp., p. 329; E.O. 12127, 44 FR 19367, 3 CFR, 1979 Comp., p. 376. § 67.11 [Amended] 2. The tables published under the authority of § 67.11 are amended as follows: State City/town/county Source of flooding Location #Depth in feet above ground. *Elevation in feet
(NGVD)+Elevation in feet
(NAVD)Modified City of Omaha, Douglas County, Nebraska Docket No.: FEMA-P7915 NE City of Omaha Candlewood Lake Entire Shoreline +1,096 # Depth in feet above ground. National Geodetic Vertical Datum. North American Vertical Datum. ADDRESSES City of Omaha, Douglas County, Nebraska Maps are available for inspection at City, 1819 Farnam Street, Omaha, Nebraska 68183. City of Lufkin, Angelina County, Texas Docket No.: FEMA-P-7699 TX City of Lufkin Biloxi Creek North Tributary Approximately 2,860 feet downstream of State Highway 287 +306 Approximately 210 feet upstream of State Highway 287 +329 TX City of Lufkin Biloxi Creek South Tributary Approximately 640 feet downstream of Lemans Drive +303 Approximately 1,660 feet upstream of Lemans Drive +319 TX City of Lufkin Cedar Creek At Gobblers Knob Road +238 Approximately 100 feet upstream of Union Pacific Railroad +299 TX City of Lufkin Cedar Creek North Tributary At confluence with Cedar Creek +276 Approximately 50 feet upstream of Lotus Lane +286 TX City of Lufkin Cedar Creek South Tributary At confluence with Cedar Creek +287 Approximately 1,350 feet upstream of Berry Road +253 TX City of Lufkin Cedar Creek Tributary 3 At confluence with Cedar Creek +266 Approximately 80 feet upstream of Live Oak Lane +240 TX City of Lufkin One Eye Creek Approximately 2,120 feet downstream of Bartmess Drive +309 Approximately 3,900 feet upstream of Bartmess Drive +289 TX City of Lufkin Shirley Creek Approximately 7,350 feet upstream of the confluence with Paper Mill Creek +232 Approximately 50 feet upstream of Trenton Street +297 TX City of Lufkin Shirley Creek Tributary 2 At the confluence with Shirley Creek +260 Approximately 1,600 feet upstream of State Highway 287 +310 TX City of Lufkin Shirley Creek Tributary 2 East Branch At confluence with Shirley Creek Tributary 2 +277 Approximately 970 feet upstream of Freeman Street +297 # Depth in feet above ground. National Geodetic Vertical Datum. North American Vertical Datum. ADDRESSES City of Lufkin, Angelina County, Texas Maps are available for inspection at City Hall, 300 Shepherd Street, Lufkin, Texas 75902. (Catalog of Federal Domestic Assistance No. 83.100, “Flood Insurance.”) Dated: October 18, 2006. David I. Maurstad, Director, Mitigation Division, Federal Emergency Management Agency, Department of Homeland Security. [FR Doc. E6-18307 Filed 10-31-06; 8:45 am] BILLING CODE 9110-12-P FEDERAL COMMUNICATIONS COMMISSION 47 CFR Part 73 [DA 06-2029; MB Docket No. 05-146; RM-10798] Radio Broadcasting Services; Caliente and Moapa, NV AGENCY: Federal Communications Commission. ACTION: Final rule, dismissal of petition for reconsideration. SUMMARY: This document dismisses a petition for reconsideration filed by Aurora Media, LLC., because it was untimely filed. Aurora requested reconsideration of a Report and Order that denied its petition for rule making to reallot Channel 233C from Caliente, Nevada to Moapa, Nevada, and to modify the construction permit authorization to reflect the change of community. The proposed change of community was denied because it would not result in a preferential arrangement of allotments. FOR FURTHER INFORMATION CONTACT: Helen McLean, Media Bureau,
(202)418-2738. SUPPLEMENTARY INFORMATION: This is a synopsis of the Commission's *Memorandum Opinion and Order* , MB Docket No. 05-146, adopted October 11, 2006, and released October 13, 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.* This document is not subject to the Congressional Review Act. The Commission, is, therefore, not required to submit a copy of this Memorandum Opinion and Order to the Government Accountability Office pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A) because the aforementioned petition for reconsideration was dismissed. Federal Communications Commission. John A. Karousos, Assistant Chief, Audio Division, Media Bureau. [FR Doc. E6-18316 Filed 10-31-06; 8:45 am] BILLING CODE 6712-01-P FEDERAL COMMUNICATIONS COMMISSION 47 CFR Part 73 [DA 06-2027; MB Docket No. 06-77; RM-11324; RM-11334] Radio Broadcasting Services; Belle Meade, TN; Burkesville, KY; Edinburgh, IN; Goodlettsville, Greensburg, and Henderson, TN; Hodgenville, KY; Hope, IN; Horse Cave, KY; Lebanon, Lebanon Junction, Lewisport, Louisville, Lyndon, KY; Manchester and Millersville, TN; New Haven, Springfield and St. Matthews, KY; Tell City and Versailles, IN AGENCY: Federal Communications Commission. ACTION: Final rule. SUMMARY: In response to a proposal filed jointly by Elizabethtown CBC, CBC of Marion County, Inc., Washington County CBC, Inc., Newberry Broadcasting, Inc. and Cumulus Licensing LLC and a counterproposal filed by CXR Holdings, LLC in this proceeding, this document granted multiple channel substitutions and changes of community of license in Indiana, Kentucky and Tennessee. Specifically, this document substitutes Channel 294C3 for Channel 294A at Belle Meade, Tennessee, reallots Channel 294C3 to Millersville, Tennessee, and modifies the license of Station WNFN to specify operation on Channel 294C3 at Millersville. In order to accommodate Channel 294C3 at Millersville, it substitutes Channel 293A for Channel 294A at Horse Cave, Kentucky, and modifies the license of Station WHHT to pecify operation on Channel 293A. It also substitutes Channel 297A for Channel 292A at Hodgenville, Kentucky, and modifies the license of Station WKMO to specify operation on Channel 297A, and substitutes Channel 257A for Channel 297A at Lebanon Junction, Kentucky, modifies the license of Station WTHX to specify operation on Channel 257A. In order to replace the loss of a sole local service at Belle Meade, it reallots Channel 246C2 from Goodlettsville, Tennessee, to Belle Meade and modifies the license of Station WRQQ to specify Belle Meade as the community of license. To avoid depriving Goodlettsville of its sole local service, it reallots Channel 221A from Hendersonville, Tennessee, to Goodlettsville, and modifies the license of Station WQQK to specify Goodlettsville as the community of license. To avoid the loss of the sole local service at Hendersonville, it substitutes Channel 259C0 for Channel 259C at Manchester, Tennessee, reallots Channel 259C0 to Hendersonville, and modifies the license of Station WWTN to specify operation on Channel 259C0 at Hendersonville. As requested in the CXR Holdings, LLC Counterproposal, it substitutes Channel 276C2 for Channel 276A at St. Matthews, Kentucky, reallots Channel 276C2 to Lyndon, Kentucky, and modifies the license of Station WRKA to specify operation on Channel 276C2 at Lyndon. In order to accommodate the Channel 276C2 allotment at Lyndon, it substitutes Channel 275A for Channel 276A at Versailles, Indiana, reallots Channel 275A to Hope, Indiana, and modification of the license of Station WXCH to specify operation on Channel 275A at Hope. To allot Channel 275A to Hope, it substitutes Channel 262A for Channel 275A at Edinburgh, Indiana, and modifies the license of Station WYGB to specify operation on Channel 262A. In order to accommodate the allotment of Channel 276C2 to Lyndon, it substitutes Channel 274A for Channel 275C3 at Tell City, Indiana, reallots Channel 274A to Lewisport, Kentucky, and modifies the license of Station WLME to specify operation on Channel 274A at Lewisport. To replace the loss of the sole local service from St. Matthews, it reallots Channel 295B from Louisville, Kentucky, to St. Matthews and modifies the license of Station WVEZ to specify St. Matthews as the community of license. In order to allot Channel 276C2 at Lyndon, it substitutes Channel 289A for Channel 276A at Greensburg, Kentucky, and modifies the license of Station WGRK-FM to specify operation on Channel 289A. The reference coordinates for the Channel 294C3 allotment at Millersville, Tennessee, are 36-26-24 and 86-37-39. The reference coordinates for the Channel 293A allotment at Horse Cave, Kentucky, are 37-13-57 and 85-52-06. The reference coordinates for the Channel 297A allotment at Hodgenville, Kentucky, are 37-40-34 and 85-40-57. The reference coordinates for the Channel 257A allotment at Lebanon Junction, Kentucky, are 37-44-37 and 85-38-52. The reference coordinates for the Channel 246C2 allotment at Belle Meade, Tennessee, are 37-17-50 and 86-45-11. The reference coordinates for the Channel 221A allotment at Goodlettsville, Tennessee, are 37-17-50 and 86-45-11. The reference coordinates for the Channel 259C0 allotment at Hendersonville, Tennessee, are 35-49-03 and 86-31-24. The reference coordinates for the Channel 276C2 allotment at Lyndon, Kentucky, are 38-23-57 and 85-36-56. The reference coordinates for the Channel 275A allotment at Hope, Indiana, are 39-19-29 and 85-53-41. The reference coordinates for the Channel 262A allotment at Edinburgh, Indiana, are 39-15-37 and 86-06-21. The reference coordinates for the Channel 274A allotment at Lewisport, Kentucky, are 37-47-44 and 86-50-58. The reference coordinates for the Channel 295B allotment at St. Matthews, Kentucky, are 38-22-19 and 85-49-33. The reference coordinates for the Channel 289A allotment at Greensburg, Kentucky, are 37-14-09 and 85-27-56. With this action, the proceeding is terminated. DATES: Effective November 27, 2006. FOR FURTHER INFORMATION CONTACT: Robert Hayne, Media Bureau
(202)418-2177. SUPPLEMENTARY INFORMATION: This is a synopsis of the *Report and Order* in MB Docket No. 06-77, adopted October 11, 2006, and released October 13, 2006. The full text of this decision is available for inspection and copying during normal business hours in the FCC Reference Information Center at Portals ll, CY-A257, 445 12th Street, SW., Washington, D.C. 20554. The complete text of this decision may also be purchased from the Commission's copy contractor, Best Copying 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 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 Indiana, is amended by removing Channel 275A and by adding Channel 262A at Edinburgh, by adding Hope, Channel 275A, by removing Tell City, Channel 275C3, and by removing Versailles, Channel 276A. 3. Section 73.202(b), the Table of FM Allotments under Kentucky, is amended by removing Channel 276A and by adding Channel 289A at Greensburg, by removing Channel 292A and by adding Channel 297A at Hodgenville, by removing Channel 294A and by adding Channel 293A at Horse Cave, by removing Channel 297A and by adding Channel 257A at Lebanon Junction, by adding Lewisport, Channel 274A, by removing Channel 295B at Louisville, by adding Lyndon, Channel 276C2, by removing Channel 276A and by adding Channel 295B at St. Matthews. 4. Section 73.202(b), the Table of FM Allotments under Tennessee, is amended by removing Channel 294A and by adding Channel 246C2 at Belle Meade, by removing Channel 246C2 and by adding Channel 221A at Goodlettsville, by removing Channel 221A and by adding Channel 259C0 at Hendersonville, and by removing Manchester, Channel 259C and by adding Millersville, Channel 294C3. Federal Communications Commission. John A. Karousos, Assistant Chief, Audio Division, Media Bureau. [FR Doc. E6-18404 Filed 10-31-06; 8:45 am] BILLING CODE 6712-01-P FEDERAL COMMUNICATIONS COMMISSION 47 CFR Part 73 [DA 06-2028; MB Docket No. 06-88; RM-11254] Radio Broadcasting Services; Boonville and Wheatland, MO AGENCY: Federal Communications Commission. ACTION: Final rule. SUMMARY: The staff grants a rulemaking petition filed by Bittersweet Broadcasting, Inc. to upgrade its Station KWJK-FM, Boonville, Missouri, from Channel 226A to Channel 226C3. To accommodate this upgrade, the Commission substitutes Channel 272A for vacant but applied for Channel 226A at Wheatland, Missouri. With this action, the proceeding is terminated. *See* SUPPLEMENTARY INFORMATION . DATES: Effective November 27, 2006. FOR FURTHER INFORMATION CONTACT: Andrew J. Rhodes, Media Bureau,
(202)418-2180. SUPPLEMENTARY INFORMATION: This is a synopsis of the Commission's Report and Order, MB Docket No. 06-88, adopted October 11, 2006, and released October 13, 2006. The full text of this Commission decision is available for inspection and copying during normal business hours in the FCC Reference Information Center (Room CY-A257), 445 12th Street, SW., Washington, DC. The complete text of this decision may also be purchased from the Commission's copy contractor, Best Copy and Printing, Inc., Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC 20054, telephone 1-800-378-3160 or *http://www.BCPIWEB.com.* The Commission will send a copy of the Report and Order in this proceeding 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). The reference coordinates for Channel 226C3 at Boonville, MO, are 38-51-17 NL and 92-38-17 WL. The reference coordinates for Channel 272 at Wheatland, MO, are 37-58-44 NL and 93-26-49 WL. The Report and Order also requires that World Radio Link, Inc., the successful bidder in Auction No. 62 for Channel 226A at Wheatland, Missouri, modify its application for Channel 226A at Wheatland to specify Channel 272A at a rule-compliant site. World Radio Link's application is not entitled to cut-off protection vis-à-vis the rulemaking petition because the application was filed after the rulemaking petition. 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 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 Missouri, is amended by removing Channel 226A and by adding Channel 226C3 at Boonville, and by removing Channel 226A and adding Channel 272A at Wheatland. Federal Communications Commission. John A. Karousos, Assistant Chief, Audio Division, Media Bureau. [FR Doc. E6-18403 Filed 10-31-06; 8:45 am] BILLING CODE 6712-01-P FEDERAL COMMUNICATIONS COMMISSION 47 CFR Part 73 [DA 06-2025; MB Docket No. 05-14; RM-11088; MB Docket No. 05-15; RM-11148] Radio Broadcasting Services; Powers, OR, and Zapata, TX AGENCY: Federal Communications Commission. ACTION: Final rule. SUMMARY: This document allots Channel 293C2 to Powers, Oregon, and Channel 292A to Zapata, Texas. It also makes an editorial change in the FM Table of Allotments by removing Channel 228A and adding Channel 228C3 at Zapata, Texas. *See* SUPPLEMENTARY INFORMATION , *infra.* DATES: Effective November 27, 2006. The window period for filing applications for these channels will not be opened at this time. Instead, the issue of opening filing windows for these allotments for auction will be addressed by the Commission in a subsequent order. FOR FURTHER INFORMATION CONTACT: Sharon P. McDonald, Media Bureau,
(202)418-2180. SUPPLEMENTARY INFORMATION: This is a synopsis of the Commission's *Report and Order* , MB Docket Nos. 05-14 and 05-15, adopted October 11, 2006, and released October 13, 2006. The full text of this Commission decision is available for inspection and copying during normal business hours in the FCC Reference Information Center, Portals II, 445 12th Street, SW., Room CY-A257, Washington, DC, 20554. The complete text of this decision also may be purchased from the Commission's duplicating contractor, Best Copy and Printing, Inc., 445 12th Street, SW., Room CY-B402, Washington, DC, 20554,
(800)378-3160, or via the company's Web site, *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). The Audio Division, at the request of Mikel Chavez, allots Channel 293C2 at Powers, Oregon, as the community's first local aural transmission service. *See* 70 FR 7221, February 11, 2005. Channel 293C2 can be allotted to Powers in compliance with the Commission's minimum distance separation requirements at city reference coordinates. The reference coordinates for Channel 293C2 at Powers are 42-53-01 North Latitude and 124-04-19 West Longitude. The Audio Division, at the request of Jeraldine Anderson, allots Channel 292A at Zapata, Texas, as the community's fourth local FM transmission service. *See* 70 FR 7221, February 11, 2005. Channel 292A can be allotted to Zapata in compliance with the Commission's minimum distance separation requirements with a site restriction of 9.0 kilometers (5.6 mile) south to avoid a sort-spacing to the licensed site for Station KPSO-FM, Channel 292A, Falfurria, Texas. The reference coordinates for Channel 292A at Zapata are 26-49-57 North Latitude and 99-14-25 West Longitude. Because Zapata is located within 320 kilometers (199 miles) of the U.S.-Canadian border, concurrence of the Mexican government has been obtained. 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 Oregon, is amended by adding Powers, Channel 293C2. 3. Section 73.202(b), the Table of FM Allotments under Texas, is amended by removing Channel 228A, and adding Channels 228C3 and 292A at Zapata. Federal Communications Commission. John A. Karousos, Assistant Chief, Audio Division, Media Bureau. [FR Doc. E6-18402 Filed 10-31-06; 8:45 am] BILLING CODE 6712-01-P FEDERAL COMMUNICATIONS COMMISSION 47 CFR Part 73 [DA 06-2026] Radio Broadcasting Services; Various Locations AGENCY: Federal Communications Commission. ACTION: Final rule. SUMMARY: The Commission, on its own motion, editorially amends the Table of FM Allotments to specify the actual classes of channels allotted to various communities. The changes in channel classifications have been authorized in response to applications filed by licensees and permittees operating on these channels. This action is taken pursuant to *Revision of Section 73.3573(a)(1) of the Commission's Rules Concerning the Lower Classification of an FM Allotment,* 4 FCC Rcd 2413 (1989), *Amendment of the Commission's Rules to permit FM Channel and Class Modifications by Applications,* 8 FCC Rcd 4735
(1993)and *Streamlining of Radio Technical Rules in Part 73 and 74 of the Commission's Rules,* 15 FCC Rcd 21649 (2000). DATES: Effective November 1, 2006. FOR FURTHER INFORMATION CONTACT: Rolanda F. Smith, Media Bureau,
(202)418-2180. SUPPLEMENTARY INFORMATION: This is a summary of the Commission's *Report and Order,* adopted October 11, 2006, and released October 13, 2006. The full text of this Commission decision is available for inspection and copying during regular business hours at the FCC Reference Information Center, Portals II, 445 12th Street, SW., Room CY-A257, Washington, DC, 20554. 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 not send a copy of the *Report & Order* in this proceeding pursuant to the Congressional Review Act, *see* 5 U.S.C. 801(a)(1)(A), because the adopted rules are rules of particular applicability. List of Subjects in 47 CFR Part 73 Radio, Radio broadcasting. As stated in the preamble, the Federal Communications Commission amends 47 CFR part as follows: PART 73—RADIO BROADCASTING 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 California, is amended by removing Channel 289A and adding Channel 289B1 at Lost Hills. 3. Section 73.202(b), the Table of FM Allotments under Louisiana, is amended by removing Channel 262C and adding Channel 262C0 at Alexandria and by removing Channel 281C and adding Channel 281C0 at Monroe. 4. Section 73.202(b), the Table of FM Allotments under Minnesota, is amended by removing Channel 223C3 and adding Channel 223C2 at Park Rapids. 5. Section 73.202(b), the Table of FM Allotments under Montana, is amended by removing Channel 286A and adding Channel 283C1 at Billings and by removing Channel 300A and adding Channel 300C2 at Darby. 6. Section 73.202(b), the Table of FM Allotments under Nebraska, is amended by removing Channel 224A and adding Channel 224C2 at Ainsworth. 7. Section 73.202(b), the Table of FM Allotments under North Dakota, is amended by removing Channel 239C and adding Channel 239C1 at New England and by removing Channel 290C and adding Channel 290C1 at Sarles. 8. Section 73.202(b), the Table of FM Allotments under Wyoming, is amended by removing Channel 222C1 and adding Channel 221C2 at Kayce and by removing Channel 298A and adding Channel 298C2 at Wheatland. Federal Communications Commission. John A. Karousos, Assistant Chief, Audio Division, Media Bureau. [FR Doc. E6-18315 Filed 10-31-06; 8:45 am] BILLING CODE 6712-01-P FEDERAL COMMUNICATIONS COMMISSION 47 CFR Part 73 [DA 06-2022; MB Docket No. 04-409; RM-11108; RM-11234] Radio Broadcasting Services; Chester, VA; Fruitland, MD; Lakeside, VA; Port Norris, NJ; Warsaw, VA, and Willards, MD AGENCY: Federal Communications Commission. ACTION: Final rule. SUMMARY: The Audio Division grants a counterproposal filed by CXR Holdings, Inc., (“CXR”) licensee of Station WDYL(FM), Chester, Virginia in response to a Notice of Proposed Rule Making issued at the request of Dana Puopolo proposing the allotment of Channel 299A at Port Norris, New Jersey. Channel 265B1 is substituted for Channel 266A at a new transmitter site, reallotted from Chester to Lakeside, Virginia as the community's first local aural service, and Station WDYL's license is modified to reflect the changes. Channel 298A is substituted for Channel 265A at Warsaw, Virginia, at a new transmitter site Station WNNT-FM's license is modified to reflect the channel substitution. Channel 299A is substituted for Channel 298B1 at a new site at Fruitland, Maryland and Station WKHI(FM)'s license is modified accordingly. Channel 265B1 is allotted at Lakeside, Virginia, at a site 9.6 kilometers (5.9 miles) east of the community at coordinates 37-36-08 NL and 77-22-09 WL. Channel 299A is be allotted at Fruitland, Maryland at a site 13.2 kilometers (8.2 miles) northeast of the community at coordinates 38-22-55 NL and 75-29-25 WL. Channel 298A can be allotted at Warsaw, Virginia, at Station WNNT-FM's transmitter site located 1.7 kilometers (1.1 miles) south of the community at coordinates 37-56-39 NL and 76-45-05 WL. DATES: Effective November 27, 2006. ADDRESSES: Federal Communications Commission, 445 Twelfth Street, SW., Washington, DC 20554. FOR FURTHER INFORMATION CONTACT: Victoria M. McCauley, Media Bureau,
(202)418-2180. SUPPLEMENTARY INFORMATION: This is a synopsis of the Commission's Report and Order, MB Docket No. 04-409, adopted October 11, 2006, and released October 13, 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 *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 Subject 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 Maryland is amended by removing Channel 298B1 and by adding Channel 299A at Fruitland. 3. Section 73.202(b), the Table of FM Allotments under Virginia is amended by removing Chester, Channel 266A, by adding Lakeside, Channel 265B1, and by removing Channel 265A and by adding Channel 298A at Warsaw. Federal Communications Commission. John A. Karousos, Assistant Chief, Audio Division, Media Bureau. [FR Doc. E6-18410 Filed 10-31-06; 8:45 am] BILLING CODE 6712-01-P FEDERAL COMMUNICATIONS COMMISSION 47 CFR Parts 73 and 76 [MM Docket No. 00-167; FCC 06-143] Broadcast Services; Children's Television; Cable Operators AGENCY: Federal Communications Commission. ACTION: Final rule. SUMMARY: This document resolves a number of issues regarding the obligation of television broadcasters to protect and serve children in their audience. The document addresses matters related to two areas: the obligation of television broadcast licensees to provide educational and informational programming for children and the requirement that television broadcast licensees protect children from excessive and inappropriate commercial messages. The item makes certain modifications to the rules and policies adopted in the Commission's 2004 order in this proceeding. These modifications respond to petitions for reconsideration filed in response to the 2004 rules as well as a joint proposal recommending modifications to those rules filed by a group of cable and broadcast industry representatives and children's television advocates, among others. DATES: The stay is lifted on § 73.670 paragraphs (b),
(c)and Note 1; § 73.671 paragraphs
(e)and
(f)and § 76.225 paragraphs (b),
(c)and Note 1 effective January 2, 2007. The amendments in this final rule are effective January 2, 2007. FOR FURTHER INFORMATION CONTACT: Kim Matthews, Media Bureau,
(202)418-2120. SUPPLEMENTARY INFORMATION: This is a summary of the Federal Communications Commission's *Second Order on Reconsideration and Second Report and Order* in MM Docket No. 00-167, FCC 06-143, adopted September 26, 2006, and released September 29, 2006. The complete text of this document is available for inspection and copying during normal business hours in the FCC Reference Center, 445 12th Street, SW., Washington, DC 20554. The complete text may be purchased from the Commission's copy contractor, Qualex International, 445 12th Street, SW., Room CY-B402, Washington, DC 20554. The full text may also be downloaded at: *www.fcc.gov* . To request materials in accessible formats for people with disabilities (braille, large print, electronic file, audio format), send an e-mail to *fcc504@fcc.gov* or call the Consumer & Governmental Affairs Bureau at
(202)418-0530 (voice),
(202)418-0432 (TTY). Summary of the Second Order on Reconsideration and Second Report 1. In this *Second Order* on Reconsideration and *Second Report and Order* (“Second Order”) we resolve issues regarding the obligation of television broadcasters to protect and serve children in their audience. We address matters related to two areas: the obligation of television broadcast licensees to provide educational and informational programming for children and the requirement that television broadcast licensees and cable operators protect children from excessive and inappropriate commercial messages. Some of the rules and policies adopted herein apply only to digital broadcasters, while others apply to both analog and digital broadcasters as well as cable operators. Our goals in resolving these issues are to provide television broadcasters with guidance regarding their obligation to serve children as we transition from an analog to a digital television environment, update our rules protecting children from overcommercialization in children's programming, and improve our children's programming rules and policies. 2. Specifically, this *Second Order* makes certain modifications to the rules and policies adopted in our September 9, 2004 Report and Order and Further Notice of Proposed Rule Making (70 FR 25 and 63, January 3, 2005) (“2004 Order”) in this proceeding. The modifications we make today respond to petitions for reconsideration filed in response to the rules as well as a Joint Proposal of Industry and Advocates on Reconsideration of Children's Television Rules (“Joint Proposal”) filed by a group of cable and broadcast industry representatives and children's television advocates, among others. 3. Our decision today does not alter the new children's core programming “multicasting” rule adopted in the 2004 Order, but does clarify the way in which repeats of core programs will be counted under the new rule. We do not make substantial changes to the four-prong Web site rule adopted in the 2004 Order, but do amend the host selling restrictions adopted in the 2004 Order to apply those restrictions less broadly and to exempt certain third party Web sites from the host selling restriction. We also revise the definition of “commercial time” adopted in the 2004 Order to limit the kinds of promotions of children's programs that must be counted under the advertising rules adopted in the 2004 Order. In addition, with regard to scheduling of core children's programming, we vacate the percentage cap on the number of permissible core program preemptions adopted in the 2004 Order and return to our prior practice of addressing the number of preemptions and rescheduling of core programming on a case-by-case basis. These modifications will serve the public interest by ensuring an adequate supply of children's educational and informational programming as we transition to digital television technology, and protecting children from excessive and inappropriate commercial messages in broadcast and cable programming, without unduly impairing the scheduling flexibility of broadcasters and cable operators. Discussion 4. We commend the parties to the Joint Proposal for their hard work in negotiating a compromise among a group of entities with often widely divergent views on the appropriate rules and policies in the area of children's television. Negotiation among interested parties can often be productive in achieving a workable compromise proposal consistent with the public interest on issues before the Commission, and we encourage such efforts. This private agreement has now been subject to public scrutiny and we will, of course, consider all comments in determining what rules and policies are most consistent with the statute and best serve the public interest. Based on the full record before us, we conclude that the Joint Proposal appropriately balances the concerns and needs of children and parents with those of industry, advertisers, and others, and will result in swift implementation of the rules. 5. We note that the Joint Proposal recommends only relatively minor clarifications to two of the rules adopted in the 2004 Order—the digital broadcasting processing guideline and the Web site address rule. While some of the comments filed in response to the Joint Proposal indicate that some parties remain concerned about aspects of the digital broadcasting processing guideline, by and large the comments support the Joint Proposal. In this item, we retain both the digital programming processing guideline and the Web site address rule with only minor modifications. These and the other modifications we make to the 2004 rules are consistent with the recommendations of the Joint Proposal and with our overall goals of ensuring the provision of sufficient children's educational programming and protecting children from excessive advertising as we transition to the digital era. Digital Core Children's Programming Processing Guideline 6. Under the core programming processing guideline adopted in 1996, analog broadcasters that air at least three hours per week of core children's educational programming are entitled to staff-level approval of the CTA portion of their license renewal application. With the advent of digital broadcasting and the multicasting ability that technology offers, the Commission determined in the 2004 Order that it would adopt a new method of quantifying the core programming guideline for digital broadcasters that choose to multicast. The Commission made clear that all digital broadcasters continue to be subject to the existing three hours per week core programming processing guideline on their main program stream. In addition, for DTV broadcasters that choose to multicast, the guideline increases in proportion to the additional hours of free programming offered on multicast channels—up to an additional three hours per week for each 24-hour free multicast program stream. Under the revised guideline adopted in the *2004 Order* , digital broadcasters can choose to air some or all of the additional core programming on either the main stream or a multicast stream, as long as the multicast stream receives MVPD carriage comparable to the stream that generated the additional core programming obligation. 7. In order to ensure that digital broadcasters do not simply replay the same core programming in order to meet this revised processing guideline, the Commission required in the 2004 Order that “at least 50 percent of core programming not be repeated during the same week in order to qualify as core.” The Commission exempted from this requirement any program stream that merely time shifts the entire programming line-up of another program stream. In addition, the Commission stated that during the digital transition we would not count as repeated programming core programs that are aired on both the analog station and a digital program stream. 8. A number of broadcast interests argued on reconsideration that requiring additional programming obligations for multicast streams would stifle the deployment of specialized channels. Broadcasters also claimed that there is no record evidence of a failure by commercial TV stations to meet children's educational programming needs. To counter the disincentive to air multicast channels, some petitioners supported an exemption for digital program streams that carry non-entertainment programming. Petitioners also argued that the Commission should waive the “comparable carriage” element of the guideline, at least until MVPDs are required to carry all free over-the-air channels. In response, children's television advocates argued that history shows that market forces do not ensure that broadcasters serve the educational needs of children and that the record in this proceeding demonstrates that the educational needs of children are not currently being met. 9. The Joint Proposal generally accepts the new multicasting rule but recommends a clarification of the restriction on the number of repeated core programs that can count toward the new programming guideline. Specifically, the Joint Proposal would clarify that at least 50 percent of the core programming counted toward meeting the additional programming guideline cannot consist of program episodes that had already aired within the previous seven days on either the station's main program stream or on another of the station's free digital program streams. This is not a change in the rule, but rather a clearer statement of what the rule was intended to cover. The Joint Proposal would also amend FCC Form 398 to collect information necessary to enforce this limit. 10. We will retain the revised core programming processing guideline as adopted in the 2004 Order. As we stated then, we believe that the revised guideline translates the existing three-hour guideline to the digital environment in a manner that is both fair to broadcasters and meets the needs of the child audience. The previous core programming guideline represented the Commission's judgment as to what constituted a “reasonable, achievable guideline” that would not unduly burden broadcasters. Now that digital broadcasters have the capability to significantly increase their overall hours of programming, increasing the amount of core programming will not result in an unreasonable burden. For example, if a station chooses to broadcast a second stream of free video programming twenty-four hours a day, seven days a week, it can satisfy the new guideline by providing merely three additional hours per week of core programming—or less than two percent of the channel's 168 hours of additional weekly programming. In addition, we believe that a guideline that increases the amount of core programming in a manner roughly proportional to the increase in free video programming offered by broadcasters is consistent with the objective of the CTA “to increase the amount of educational and informational broadcast television available to children.” 11. We also conclude that the revised quantitative processing guideline we reaffirm today is consistent with the First Amendment. It is well established that the broadcast media do not enjoy the same level of First Amendment protection as do other media. Under this more lenient scrutiny, it is also well established that the government may regulate broadcast speech in order to advance its compelling interest in promoting and protecting the well-being of children. As we discussed in the 2004 Order, our new guideline imposes reasonable parameters on a broadcaster's use of the public airwaves and is narrowly tailored to advance the government's substantial, and indeed compelling, interest in the protection and education of America's children. In enacting the CTA, Congress explicitly found that “as part of their obligation to serve the public interest, television station operators and licensees should provide programming that serves the special needs of children.” As noted above, the multicasting rule substantially advances that interest by furthering “the objective of the CTA ‘to increase the amount of educational and informational broadcast television available to children.’ ” Moreover, consistent with the First Amendment, the rule is narrowly tailored to achieve its objective. It increases the guideline only for broadcasters that choose to use their digital capacity to air additional free video programming. Broadcasters continue to retain wide discretion in choosing the ways in which they will meet their CTA obligations. Under the rule, the core programming guideline increases in a manner roughly proportional to the additional amount of free video programming multicasters choose to provide. That guideline, by “giving broadcasters clear but nonmandatory guidance on how to guarantee compliance” with the CTA, provides “a constitutional means of giving effect to the CTA's programming requirement.” We reject the State Broadcasters Associations' argument that our revised guideline is constitutionally unacceptable because it “dictates the removal of one form of content over another.” The CTA itself reflects a preference for children's educational and informational programming, and no party has challenged the constitutionality of the CTA's provisions for promoting such programming. 12. A number of broadcast companies and industry associations, none of which are parties to the Joint Proposal, argue that the Commission either should not impose additional core programming requirements on digital multicast channels, or at least should exempt multicast channels that offer educational, informational, and/or public interest programming. These commenters argue that many local broadcasters are planning multicast channels that focus on a single genre of programming, such as weather or news, and that the multicast guideline as adopted would discourage the provision of such specialized channels. These commenters also argue that children are unlikely to watch programming aired on channels primarily devoted to news and other specialized adult programming. 13. We decline to revise our processing guideline as suggested by these commenters. As we stated in the 2004 Order, we do not want to discourage broadcasters from providing channels with a specialized focus. However, we agree with the Children's Media Policy Coalition that the guideline provides broadcasters the flexibility to move core programming to either their main programming stream or other multicast streams, so long as the stream the programming is moved to receives comparable MVPD carriage to the stream triggering the additional obligation. Thus, the guideline preserves the principle that, in order to obtain staff level approval of their CTA compliance, broadcasters must provide three hours of children's core programming for every 168 hours per week of free video programming that they air, while at the same time giving broadcasters flexibility to choose the multicast stream that will air that programming. In addition, broadcasters could meet the guideline by airing children's programming on specialized channels, such as a children's news program on a twenty-four hour news channel or a children's educational weather program on a twenty-four hour weather channel. Furthermore, we note that our rules provide flexibility for licensees that have aired somewhat less core programming than indicated by the guideline but that nonetheless demonstrate an adequate commitment to educating and informing children. 14. Some broadcast commenters also point out that there is no requirement for cable carriage of multicast channels, thereby limiting the flexibility of broadcasters to consolidate their core programming on a multicast stream under the comparable MVPD carriage requirement. While we recognize that the comparable MVPD carriage requirement may limit the flexibility of some broadcasters to consolidate core programming on a single multicast channel, we believe that the comparable carriage requirement is necessary to ensure that, as additional free programming is made available to viewers in the station's service area, the level of children's programming increases as well. 15. As noted, the Joint Proposal suggests a clarification of the number of permissible core program repeats under the processing guideline. Specifically, the Joint Proposal recommends that the Commission clarify that at least 50 percent of the core programming counted toward meeting the additional programming guideline cannot consist of program episodes that had already aired within the previous seven days on either the station's main program stream or on another of the station's free digital program streams. We will adopt this clarification; it makes the rule easier to understand and apply and is consistent with the intent of the 2004 Order. All of the commenters that addressed this aspect of the Joint Proposal supported this clarification. We will also adopt the Joint Proposal recommendation, supported by other commenters, that FCC Form 398 be amended to collect the information necessary to enforce the limit on repeats under the revised guideline. As suggested by commenters, we will permit licensees to certify on Form 398 that they have complied with the repeat restriction and will not require broadcasters to identify each program episode on Form 398. We will require licensees, however, to retain records sufficient to document the accuracy of their certification, including records of actual program episodes aired, and to make such documentation available to the public upon request. The children's programming liaison, whose name and phone number must be included on FCC Form 398, should be able to provide documentation to substantiate the certification if requested. Preemption 16. To qualify as “core programming” for purposes of the children's programming processing guideline, the Commission requires that a children's program be “regularly scheduled”; that is, a core children's program must “be scheduled to air at least once a week” and “must air on a regular basis.” In adopting its 1996 children's programming rules, the Commission stated that television series typically air in the same time slot for thirteen consecutive weeks, although some episodes may be preempted for programs such as breaking news or live sports events. The Commission stated in the 1996 Order that it would leave to the staff to determine, with guidance from the full Commission as necessary, what constitutes regularly scheduled programming and what level of preemption is allowable. 17. In the 2004 Order, the Commission stated that core programs moved to the same time slot on another digital program stream would not be considered preempted, as long as the alternate stream has comparable MVPD carriage and the station provides notice of the move on both the original and the alternate program stream. In addition, the 2004 Order limited the number of core programming preemptions for analog and digital broadcasters to no more than ten percent of core programs in each calendar quarter. Any preemption beyond the ten percent limit would cause that program not to count as core under the processing guideline, even if the program were rescheduled. The 2004 Order exempted preemptions for breaking news from the preemption limit and rescheduling requirement. 18. On reconsideration, a number of petitioners argued that the preemption cap is unworkable in light of broadcasters' commitments to air live sports programming on Saturdays, particularly on the West coast. In lieu of the new rules, some petitioners urged the Commission to continue its prior practice of case-by-case staff approval of network preemption practices. Other petitioners supported exempting from the preemption cap live sports programming or children's programs rescheduled in accordance with the Media Bureau's current preemption policies. In their original opposition to these petitions, children's advocates agreed that a modest modification of the new preemption rule would be appropriate to accommodate major sporting events such as the Olympics and World Cup. 19. The Joint Proposal recommends that the Commission not adopt any percentage or other numerical limit on preemptions and instead return to the Commission practice of ensuring, on a case-by-case basis, that broadcasters do not engage in excessive preemptions of core programming. All of the commenters that addressed the issue of preemptions supported the Joint Proposal recommendation to eliminate the cap on the number of preemptions and return to a case-by-case approach. 20. We are persuaded that the burden created by the ten percent cap on preemptions outweighs the benefits the Commission sought to achieve, and therefore hereby repeal the ten percent cap on preemptions adopted in the 2004 Order. We will instead institute a procedure similar to that used by the Media Bureau and the Commission following adoption of the 1996 children's television Order whereby networks sought informal approval of their preemption plans each year. Under the policy formerly developed by the Commission staff, a program counted as preempted only if it was not aired in a substitute time slot (otherwise known as a “second home”) with an on-air notification of the schedule change occurring at the time of preemption during the previously scheduled episode. The on-air notification must announce the alternate date and time when the preempted show will air. As part of this policy, we will require all networks requesting preemption flexibility to file a request with the Media Bureau by August 1 of each year stating the number of preemptions the network expects, when the program will be rescheduled, whether the rescheduled time is the program's second home, and the network's plan to notify viewers of the schedule change. We will presume that non-network stations are complying with the three hour core programming requirement, and do not need broad preemption relief. We intend to monitor the number, rescheduling, and promotion of preemptions of all stations under this policy by our quarterly review of their Children's Programming Reports to ensure that the interests of the child audience are being served. We find this approach to be a reasonable compromise for programmers that routinely face conflicts between their children's television blocks and sports programming as the result of time differences. We note that the concept of a “second home” is familiar to viewers, and are persuaded that those core programs that must be preempted are consistently rescheduled and promoted. Indeed, the Media Bureau has previously found that children's educational and informational programming efforts have not been “unduly affected by the limited preemption flexibility granted” under the existing standard. Limit on Display of Internet Web Site Addresses 21. The CTA requires that commercial television broadcasters and cable operators limit the amount of commercial matter in children's programs to no more than 101/2 minutes per hour on weekends and 12 minutes per hour on weekdays. The Commission noted in the 2004 Order that some broadcasters are displaying Internet Web site addresses during children's program material (for example, in a crawl at the bottom of the screen) and expressed concern that the display of such addresses for Web sites established for commercial purposes in children's programs was inconsistent with the CTA's mandate to protect children from excessive and inappropriate commercial messages. Accordingly, the 2004 Order required that, with respect to programs directed to children ages 12 and under, the display of Internet Web site addresses during program material is permitted only if:
(1)The Web site offers a substantial amount of *bona fide* program-related or other noncommercial content;
(2)the Web site is not primarily intended for commercial purposes, including either e-commerce or advertising;
(3)the Web site's home page and other menu pages are clearly labeled to distinguish the noncommercial from the commercial sections; and
(4)the page of the Web site to which viewers are directed by the Web site address is not used for e-commerce, advertising, or other commercial purposes ( *e.g.* , contains no links labeled “store” and no links to another page with commercial material). This restriction applies to analog and digital broadcasters as well as cable operators. 22. On reconsideration, a number of petitioners claimed that the rule exceeds the Commission's authority because the CTA does not authorize regulation of Web site addresses, which petitioners assert are not commercials. We disagree. As the children's television advocates asserted, the Commission has the authority to enact these restrictions because they do not regulate Internet content, but rather the advertising of commercial Web sites in children's programming, a subject clearly within the scope of the Commission's jurisdiction. Several petitioners also challenged the rule on notice grounds. In response, child advocates argued that the Commission gave adequate notice of the potential restriction, because it sought comment on whether to prohibit all direct links to commercial Web sites and the term Web site links can refer to either passive displays or interactive links. We agree that adoption of the Web site display rules was within the scope of the NPRM. Furthermore, the Second FNPRM sought comment “on the rules and policies adopted in the [2004] Order in light of the recommendations reflected in the Joint Proposal” and asked for “any alternative modifications” to the 2004 rules, in addition to the modifications proposed in the Joint Proposal. Thus, the notice issue is moot. 23. The Joint Proposal does not propose material changes to the Web site rule adopted in the 2004 Order but requests two clarifications:
(1)That the rule applies only when Internet addresses are displayed during program material or during promotional material not counted as commercial time; and
(2)that if an Internet address for a Web site that does not meet the four-prong test is displayed during a promotion, in addition to counting against the commercial time limits, the promotion will be clearly separated from programming material. The comments filed in response to the Second FNPRM generally support the Joint Proposal approach. 24. We will retain the rule on Web site addresses and, in addition, adopt the clarifications proposed in the Joint Proposal. As the Commission stated in the 2004 Order, the Web site address rule fairly balances the interest of broadcasters in exploring the potential uses of the Internet with our mandate to protect children from over-commercialization. The display of the address of a Web site that sells a product is the equivalent of a commercial encouraging children to go to the store and buy the product. Thus, including the display during program material converts that program material into commercial matter just as a host telling children to race to their local toy store would. We note that broadcasters are free to display the addresses of Web sites that do not comply with the test during the allowable commercial time, as long as it is adequately separated from the program material; thus, the burden is minimal and outweighed by the benefits discussed above. The minor clarifications recommended by the Joint Proposal make this point clear. 25. We also disagree with petitioners, and conclude that the Web site rule we modify today is consistent with the First Amendment. Because this rule regulates commercial speech, it is subject to less First Amendment protection than noncommercial speech. The rule is therefore permissible under the First Amendment if it “directly advances” a “substantial” governmental interest in a manner that “is not more extensive than necessary to serve that interest.” The Web site rule satisfies these criteria. By limiting the display of commercial Web site addresses during children's programming, the Web site rule advances the government's substantial interest in protecting children from overcommercialization. Numerous Web sites sell products with special appeal to children. Televised references to commercial Web sites are no different from other forms of advertising. A television commercial encouraging children to go to a toy store Web site, for example, is substantially similar to an advertisement telling children to go to their local toy store. As such, a limit on televised advertising of commercial Web sites during children's programming is necessary “to protect children, who are particularly vulnerable to commercial messages.” The rule is narrowly tailored. It only limits when certain types of Web site addresses may be televised; it places no limits on displays of Web sites that are not commercial in nature. In addition, these restrictions apply only during non-commercial portions of children's programs, which represent a tiny fraction of a broadcaster's programming. The rule does nothing to prevent broadcasters and cable programmers from publicizing their Web sites as often as they wish during their many hours of other programming or during properly buffered commercial portions of children's programming, regardless of whatever content those Web sites may contain. Further, despite petitioner's passing assertions, the Web site rule as modified is not constitutionally suspect on vagueness grounds. We find that the four-part test is sufficiently clear to give broadcasters reasonable notice of what conduct is proscribed. 26. A number of commenters, including the Ad Council, request that public service announcements (“PSAs”) be exempt from the four-prong Web site rule. The Ad Council states that the rule has created confusion within the broadcast industry and has had a chilling effect on broadcasters' willingness to run PSAs. We agree that further clarification of this issue could help avoid confusion. We agree with the Children's Media Policy Coalition that we should clarify that certain PSAs, which are not commercial matter under our rules, are exempt from the Web site display rules. The Commission has historically encouraged licensees to air PSAs as part of their obligation to fulfill the public interest. Indeed, in the children's television context, as discussed above, licensees that have not aired at least three hours of core programming may count educational and informational PSAs toward the three hour processing guideline. Thus, the Commission has already adopted a policy of encouraging the airing of PSAs during programming directed to children. For these purposes, we will define PSAs exempt from the Web site display rules as suggested by the Coalition: PSAs aired on behalf of independent non-profit or government organizations, or media companies in partnership with non-profits or government entities, that display Web sites not under the control of the licensee or cable company. We believe it is unlikely that PSAs meeting this definition will display addresses for commercially-oriented Web sites, and we are persuaded by commenters that if we do not carve out an exception for PSAs licensees and cable operators will be discouraged from airing them because they do not want to incur the obligation of ensuring that any Web site addresses displayed comply with the four prong test. Given the non-profit nature of PSAs, we do not expect abuse of this exemption. But we will revisit this issue if the need arises. 27. For similar reasons, we also clarify that station identifications and emergency announcements are not subject to the rules governing the display of Web site addresses as long as the display is consistent with the purpose of the announcement. The four prong Web site address rule applies to Web site addresses displayed during program material and, as clarified above, to promotional material not counted as commercial time. Station identifications and emergency announcements are neither program material nor promotions for purposes of the Web site rule. Rather, both are announcements required under the Commission's rules and must comport with certain requirements regarding their composition and timing. To the extent a licensee includes a Web site address to provide more information about an emergency or about how to contact the station, we find it unnecessarily restrictive to require that such a Web site comply with the four prong test. 28. We decline to exempt closing credits from application of the Web site address rules as requested by some commenters. Closing credits are part of the television program material and should, therefore, be subject to the Web site restrictions. 29. We decline at this point to further define terms in the Web site rule. NAB argues that certain terms in the rule are vague and do not provide sufficient guidance to broadcasters on whether a Web site would comply with the Web site rule. We believe that the rule, as clarified herein, is sufficiently clear to guide broadcasters' compliance. Isolated concerns about the clarity of the Web site rule can be addressed by the Commission staff on a case-by-case basis. 30. We also decline to allow broadcasters to avoid liability by relying on representations from program providers that web addresses meet the four-prong test. We do not expect compliance to be burdensome, but we will revisit this issue if we receive evidence that this is imposing an undue burden on broadcasters. Host Selling 31. The Commission's long standing host selling policy prohibits the use of program characters or show hosts to sell products in commercials during or adjacent to shows in which the character or host appears. Because of the unique vulnerability of children to host selling, the 2004 Order prohibits the display of Web site addresses in children's programs when the site uses characters from the program to sell products or services. In the 2004 Order, the Commission stated that the restriction on Web sites that use host selling applies to Web site addresses displayed both during program material and during commercial material. 32. Several parties argued on reconsideration that the host selling restriction is unnecessarily restrictive. These petitioners contended that familiar television characters are often used in Web sites in ways that are not commercial in nature, such as to adorn a webpage or guide children from one page to the next. Petitioners also argued that any Web site promotion of any product or service incorporating a program-related character appears to violate the rule even though the 2004 Order permits the sale of program-related merchandise on appropriately cabined commercial sections of a Web site. In response, children's advocates argued that there are clear examples of problems with host selling on Web sites, and that the Commission can address any concerns about the clarity of its rules on a case-by-case basis. 33. The Joint Proposal proposes that the host selling rule in the 2004 Order be vacated and replaced with the following rule: Entities subject to commercial time limits under the Children's Television Act (“CTA”) will not display a Web site address during or adjacent to a program if, at that time, on pages that are primarily devoted to free noncommercial content regarding that specific program or a character appearing in that program:
(1)Products are sold that feature a character appearing in that program; or
(2)a character appearing in that program is used to actively sell products. To clarify, this rule does not apply to:
(1)Third-party sites linked from the companies' web pages;
(2)on-air third-party advertisements with Web site references to third-party Web sites; or
(3)pages that are primarily devoted to multiple characters from multiple programs. Commenters that addressed the host selling issue generally support the Joint Proposal recommendation. 34. We continue to believe that it is important to restrict the practice of host selling in children's programming. As we have stated before, the trust that children place in program characters allows advertisers to take unfair advantage of the relationship between the hosts and young children. This can occur whether the host selling occurs on the air or on a Web site to which the television program refers children. 35. We agree, however, with those who argue that our original formulation of the host selling rule was overly restrictive, and that we should revise it as recommended by the Joint Proposal. We believe the revised rule achieves a better balance than the existing rule between the goals of protecting children and permitting broadcasters and cable operators to make appropriate use of Web site displays. The 2004 Order expressly states that commercial portions of Web sites that comply with the Web site display rules may sell or advertise products associated with the related television program. As several parties noted, the host selling rule as originally written appeared to prohibit the sale of any merchandise incorporating a program-related character anywhere on a Web site, even if that portion of the site was clearly identified as commercial in nature and the site otherwise complied with the four-prong Web site rule. The revised host selling rule we adopt today permits the sale of merchandise featuring a program-related character in parts of the Web site that are sufficiently separated from the program itself to mitigate the impact of host selling. 36. Univision supports the Joint Proposal revision but states that the revised rule is vague with respect to the proposed exemption for certain third party sites as it fails to provide a definition of the term “third party.” We decline to adopt a definition of “third party” at this time as we believe that the purpose of the third party exemption from the host selling restriction is sufficiently clear to provide guidance to broadcasters and cable operators about the kinds of ads and Web sites to which the exemption applies. As stated by the Coalition, the intent behind the third party exemption to the rule is to alleviate the need for companies to police third party Web sites over which the company has no control. In addition, the third party Web site would not be included in the relevant children's programming; rather the third party Web site would be displayed in a commercial (subject to the commercial limits) or would merely be linked to from the company's Web site. Advertisements with or without Web site addresses must be separated from programming material by use of bumpers, as currently required under the Commission's existing commercial limits rules and policies. As such, there will be multiple layers of separation between the program and the third party Web site, which will sufficiently attenuate the commercial content from the relevant programming. 37. Television licensees currently certify their compliance with the children's advertising commercial limits on their license renewal forms and are required to maintain in their public inspection file records sufficient to substantiate the certification. As the Commission stated in the 2004 Order, licensees will be required also to certify that they have complied with the requirements concerning the display of Web site addresses in such programming. In addition, licensees will be required to maintain in their public inspection file, until final action has been taken on the station's next license renewal application, records sufficient to substantiate the station's certification of compliance with the restrictions on Web site addresses in programs directed to children ages 12 and under. Cable operators airing children's programming must maintain records sufficient to verify compliance with the Web site address and host selling rules and make such records available to the public. Such records must be maintained by cable operators for a period sufficient to cover the limitations period specified in 47 U.S.C. 503(b)(6)(B). Definition of Commercial Matter 38. The limitation on the duration of advertising in children's programming of 10 1/2 minutes per hour on weekends and 12 minutes per hour on weekdays applies to “commercial matter.” Prior to the 2004 Order, the term “commercial matter” was defined to exclude certain types of program interruptions, including promotions of upcoming programs that do not mention sponsors. The Commission noted in the 2004 Order that a significant amount of time is devoted to these types of announcements in children's programming, thereby reducing the amount of actual program material far more than the commercial limits alone might suggest. To address this problem, the 2004 Order revised the definition of “commercial matter” to include promotions of television programs or video programming services other than children's educational and informational programming. The revised definition applies to analog and digital broadcasters and to cable operators. 39. On reconsideration, petitioners generally argued that the revised definition of commercial matter would lead to lost ad sales in children's programming and reduced revenues from such programming as well as diminished opportunities to promote programming. Petitioners claimed that reducing the number of program promotions would reduce the number of children watching the programs. Petitioners also argued that there is no evidence that counting internal promotions as commercials would increase the amount of content in children's shows or reduce program interruptions as programs are produced in a specific length. Children's advocates claimed that new children's programs can be made longer and that the amount of program material in existing shows can be increased by supplementing existing programs with short-form programming, that is, programming lasting less than thirty minutes. 40. As noted above, the 2004 Order included all program promotions other than children's educational and informational programming in the definition of commercial matter. The Joint Proposal would change the revised definition of “commercial matter” to exclude
(1)promotions for any children's or other age-appropriate programming appearing on the same channel, and
(2)promotions for children's educational and informational programming appearing on any channel. Commenters express general support for the Joint Proposal recommendation. 41. We will revise our definition of “commercial matter” as recommended by the Joint Proposal. We believe that the revised definition of commercial matter is consistent with the public interest, provides additional flexibility for broadcasters and cable operators, and furthers our goal of making high quality children's programming available to the public. We also note that the CTA explicitly authorizes the Commission to review and evaluate the advertising duration limits; the Commission is therefore authorized to change the definition of “commercial matter” consistent with the intent of the CTA and the public interest. Thus, we disagree with parties that argue the revised definition is inconsistent with the CTA. 42. While the revised rule may not limit program promotions in children's programming to the same extent as the rule adopted in the 2004 Order, the revision will still reduce the number of interruptions that were permissible under the original rule and encourage the promotion of programming appropriate for children, including educational and informational programming. As we stated in the 2004 Order, we believe that reducing the number of program promotions will help protect children from overcommercialization of programming consistent with overall intent of the CTA. In addition, exempting program promotions for programming appropriate for children may encourage broadcasters to promote children's programming with educational and informational value, thereby increasing public awareness of the availability of this programming. Conclusion 43. The rules and policies adopted herein will serve the public interest by both protecting children from excessive and inappropriate advertising on television and ensuring an adequate supply of children's educational programming as we transition from an analog to a digital television environment. Our actions today further the public interest and the mandate of the CTA and provide a reasonable balance between the concerns of industry and protecting the well-being of the nation's children. Administrative Matters 44. *Final Regulatory Flexibility Analysis* As required by the Regulatory Flexibility Act, the Commission has prepared a Final Regulatory Flexibility Analysis (“FRFA”) relating to this Report and Order. 45. *Final Paperwork Reduction Act Analysis* . This *Second Order* contains information collection requirements which were proposed in the Second FNPRM, 21 FCC Rcd 3642 (2006), 71 FR 15145 (March 27, 2006), and are subject to the Paperwork Reduction Act of 1995 (“PRA”). The Second FNPRM proposed to revise FCC Form 398 and modify/add new information collection requirements. These proposals were submitted to the Office of Management and Budget
(OMB)for review under Section 3507(d) of the PRA. The revised FCC Form 398 and modified/new information collection requirements were approved by OMB on June 23, 2006, OMB Control No. 3060-0754. This *Second Order* adopts the information collection requirements and FCC Form 398 as proposed. 46. Our requirements regarding the requests that may be filed with the Media Bureau by networks seeking preemption flexibility will become effective after approval by the Office of Management and Budget (“OMB”). The Commission will publish a separate **Federal Register** Notice seeking public comment on this new information collection requirement at a later date. Upon OMB approval, we will issue a Public Notice announcing the effective date of this rule. 47. In addition, the general public and other Federal agencies were invited to comment on the information collection requirements in the Second FNPRM. We further note that pursuant to the Small Business Paperwork Relief Act of 2002, the Commission previously sought specific comment on how the Commission might “further reduce the information collection burden for small business concerns with fewer than 25 employees.” We received no comments concerning these information collection requirements. For additional information concerning the information collection requirements contained in this Report and Order, contact Cathy Williams at 202-418-2918, or via the Internet to *Cathy.Williams@fcc.gov.* 48. *Congressional Review Act* . The Commission will send a copy of this *Second 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). 49. *Additional Information.* For additional information on this proceeding, please contact Kim Matthews, Policy Division, Media Bureau at
(202)418-2154, or Holly Saurer, Policy Division, Media Bureau at
(202)418-7283. Ordering Clauses 50. *It is ordered* that, pursuant to the authority contained in Sections 1, 2, 4(i), 303, 303a, 303b, and 307of the Communications Act of 1934, 47 U.S.C 151, 152, 154(i), 303, 303a, 303b, and 307, this *Second Order* on Reconsideration and Second Report and Order *is adopted.* 51. *It is further ordered* that pursuant to the authority contained in Sections 1, 2, 4(i), 303, 303a, 303b, and 307 of the Communications Act of 1934, 47 U.S.C 151, 152, 154(i), 303, 303a, 303b, and 307, the Commission's rules *are hereby amended* as set forth in the rule changes. It is our intention in adopting these rule changes that, if any provision of the rules is held invalid by any court of competent jurisdiction, the remaining provisions shall remain in effect to the fullest extent permitted by law. 52. *It is further ordered* that the rules as revised in the rule changes *shall be effective* 60 days after publication of the *Second Order* in the **Federal Register** . With respect to renewal applications, we will evaluate compliance with these requirements in applications filed after that date. Licensee performance during any portion of the renewal term that predates the effective date of the rules in the *Second Order* will be evaluated under current rules, and licensee performance that post-dates the effective date of the revised rules will be judged under the new provisions. 53. *It is further ordered* that the Media Bureau make available to the public an electronic version of FCC Form 398, Children's Television Programming Report, that reflects the changes adopted in this *Second Order* . A revised version of this form has already been approved by OMB. Licensees will be required to use the revised electronic version of FCC Form 398 to report their children's core programming, including their digital core programming, for the first quarter of 2007. Thus, licensees must use the revised electronic version of FCC Form 398 for their quarterly filing due no later than April 10, 2007. 54. *It is further ordered* that the Petitions for Reconsideration and Oppositions to Petition for Reconsideration filed in response to the 2004 Report and Order and Further Notice of Proposed Rule Making in this docket are granted in part and denied in part, as discussed above, and otherwise dismissed as moot. 55. *It is further ordered* that the Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, *shall send* a copy of this *Second Order* on Reconsideration and Second Report and Order, including the Final Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration. 56. *It is further ordered* that the Commission *shall send* a copy of this Second Order on Reconsideration and Second Report and Order in a report to be sent to Congress and the General Accounting Office pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A). Final Regulatory Flexibility Act Analysis As required by the Regulatory Flexibility Act of 1980, as amended (“RFA”) an Initial Regulatory Flexibility Analysis (“IRFA”) was incorporated in the Second Further Notice of Proposed Rule Making (“Second FNPRM”) in this proceeding. The Commission sought written public comment on the proposals in the Second FNPRM, including comment on the IRFA. The Commission received one comment on the IRFA, as discussed below. This Final Regulatory Flexibility Analysis (“FRFA”) conforms to the RFA. Need for, and Objectives of, the Second Order The purpose of this proceeding is to determine how the existing children's educational television programming obligations and limitations on advertising in children's programs should be interpreted and adapted to apply to digital television broadcasting in light of the new capabilities made possible by that technology. The *Second Report and Order and Second Order on Reconsideration (“Second Order”)* makes certain modifications to the rules and policies adopted in our September 9, 2004 Report and Order and Further Notice of Proposed Rule Making (“2004 Order”) in this proceeding. The modifications we make today respond in part to a Joint Proposal of Industry and Advocates on Reconsideration of Children's Television Rules (“Joint Proposal”) filed by a group of cable and broadcast industry representatives and children's television advocates, among others. The Commission sought comment on the Joint Proposal in the Second FNPRM. In the 2004 Order, the Commission updated the children's television rules and policies to ensure that they continue to serve the interests of children and parents as the country transitions from analog to digital television. Among other things, the Commission revised the three-hour core programming processing guideline as it applies to DTV broadcasters that choose to multicast. Specifically, the 2004 Order increased the core programming benchmark for digital broadcasters in a manner roughly proportional to the increase in free video programming offered by the broadcaster on multicast channels. The 2004 Order also permitted the display of Internet Web site addresses during children's programming only if the Web site meets a four-prong test limiting commercial matter on the site, and prohibited broadcasters from displaying Web site addresses during both children's programs and commercials appearing in those programs if the Web site uses host selling. The 2004 Order also imposed a percentage cap on the number of preemptions of core children's programs and revised the definition of “commercial matter” for purposes of the commercial limits to include promotions of other television programs unless they are children's educational or informational programs. Our decision today does not alter the new children's core programming “multicasting” rule adopted in the 2004 Order, but does clarify the way in which repeats of core programs will be counted under the new rule. We do not make substantial changes to the four-prong Web site rule adopted in the 2004 Order, but do amend the host selling restrictions adopted in the 2004 Order to apply those restrictions less broadly and to exempt certain third party Web sites from the host selling restriction. We also revise the definition of “commercial time” adopted in the 2004 Order to limit the kinds of promotions of children's programs that must be counted under the advertising rules adopted in the 2004 Order. In addition, with regard to scheduling of core children's programming, we vacate the percentage cap on the number of permissible core program preemptions adopted in the 2004 Order and return to our prior practice of addressing the number of preemptions and rescheduling of core programming on a case-by-case basis. These modifications will serve the public interest by ensuring an adequate supply of children's educational and informational programming as we transition to digital television technology, and protecting children from excessive and inappropriate commercial messages in broadcast and cable programming, without unduly impairing the scheduling flexibility of broadcasters and cable operators. Summary of Significant Issues Raised by Public Comments in Response to the IRFA The U.S. Small Business Administration (“SBA”) filed the only comment in this proceeding responding to the IRFA. The SBA notes that several alternatives were suggested to the FCC by various members of industry which could, according to the SBA, offer significant cost savings to smaller broadcasters while potentially serving the FCC's goals. First, the SBA notes that the Local Broadcasters Alliance (“LBA”) recommends that the FCC limit the applicability of the new core programming requirements to multicast streams that do not already offer educational, informational, and/or public affairs programming. According to the SBA, providing an exemption for small broadcasters who are already providing public affairs content, and who do not yet have the technical capabilities to insert children's programming on their multicast channels, could serve the FCC's goals and provide a reasonable amount of flexibility for small business. Second, the SBA notes that the National Association of Broadcasters (“NAB”) and others recommend that the FCC allow broadcasters to rely on certifications from programming providers that Web site addresses displayed during core programming meet the FCC requirements, instead of requiring stations to continuously monitor and edit programming containing Web site addresses. According to the SBA, adopting this alternative could offer significant cost savings to small broadcasters. Third, the SBA notes that the multicasting rule would require that at least 50 percent of the core programming counted toward meeting the additional core programming requirements not consist of program episodes that have already aired within the previous seven days. The SBA notes that the NAB recommends that the FCC amend Form 398 to allow broadcasters to certify compliance with the limitation. According to the SBA, adopting this alternative could provide significant compliance cost savings to both small and large broadcasters. With respect to LBA's argument that the Commission limit the applicability of the new core programming requirements to multicast streams that do not already offer educational or public affairs programming, as noted in paragraph 20 of the *Second Order* a number of commenters joined the LBA in arguing that the Commission either should not impose additional core programming requirements on digital multicast channels, or at least should exempt multicast channels that offer educational, informational, and/or public interest programming. As discussed in paragraphs 18-21 of the *Second Order* , we decline to revise the guideline as suggested by these commenters. The Commission believes that the revised processing guideline translates the existing three-hour guideline to the digital environment in a manner that is both fair to broadcasters and meets the needs of the child audience. Now that digital broadcasters have the capability to significantly increase their overall hours of programming, increasing the amount of core programming will not result in an unreasonable burden. For example, if a station chooses to broadcast a second stream of free video programming twenty-four hours a day, seven days a week, it can satisfy the new guideline by providing merely three additional hours per week of core programming—or less than two percent of the channel's 168 hours of additional weekly programming. That additional programming can be aired on the main program stream or on a multicast stream, at the discretion of the broadcaster. In addition, we believe that a guideline that increases the amount of core programming in a manner roughly proportional to the increase in free video programming offered by broadcasters is consistent with the objective of the CTA “to increase the amount of educational and informational broadcast television available to children.” The digital programming processing guideline provides broadcasters flexibility to move core programming to either their main programming stream or other multicast streams, so long as the stream the programming is moved to receives comparable MVPD carriage to the stream triggering the additional obligation. Thus, the guideline preserves the principle that, in order to obtain staff level approval of their CTA compliance, broadcasters must provide three hours of children's core programming for every 168 hours per week of free video programming that they air, while at the same time giving broadcasters flexibility to choose the multicast stream that will air that programming. In addition, broadcasters could meet the guideline by airing children's programming on specialized channels, such as a children's news program on a twenty-four hour news channel or a children's educational weather program on a twenty-four hour weather channel. Furthermore, we note that our rules provide flexibility for licensees that have aired somewhat less core programming than indicated by the guideline but that nonetheless demonstrate an adequate commitment to educating and informing children. With respect to the recommendation of NAB and others regarding reliance on certifications from program providers, as discussed in paragraph 38 of the item we decline to allow broadcasters to avoid liability by relying on representations from program providers that web addresses meet the four-prong test. We do not expect compliance to be burdensome, but we will revisit this issue if we receive evidence that this is imposing an undue burden on broadcasters. Finally, as discussed in paragraph 23 the item adopts NAB's recommendation, which was echoed by other commenters, that FCC Form 398 allow broadcasters to certify compliance with the revised limitation on the repeat of core digital programming adopted under the multicasting guideline rather than requiring broadcasters to identify each program episode on Form 398. We will require licensees, however, to retain records sufficient to document the accuracy of their certification, including records of actual program episodes aired, and to make such documentation available to the public upon request. Description and Estimate of the Number of Small Entities To Which the Proposed Rules Will Apply The RFA directs agencies to provide a description of and, where feasible, an estimate of the number of small entities that will be affected by the rules. The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction” under section 3 of the Small Business Act. In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. A small business concern is one which:
(1)Is independently owned and operated;
(2)is not dominant in its field of operation; and
(3)satisfies any additional criteria established by the SBA. *Television Broadcasting* . The proposed rules and policies apply to television broadcast licensees, and potential licensees of television service. The SBA defines a television broadcast station as a small business if such station has no more than $13 million in annual receipts. Business concerns included in this industry are those “primarily engaged in broadcasting images together with sound.” According to Commission staff review of the BIA Publications, Inc. Master Access Television Analyzer Database
(BIA)on October 18, 2005, about 873 of the 1,307 commercial television stations (or about 67 percent) have revenues of $12 million or less and thus qualify as small entities under the SBA definition. We note, however, that in assessing whether a business concern qualifies as small under the above definition, business (control) affiliations must be included. Our estimate, therefore, likely overstates the number of small entities that might be affected by our action, because the revenue figure on which it is based does not include or aggregate revenues from affiliated companies. In addition, an element of the definition of “small business” is that the entity not be dominant in its field of operation. We are unable at this time to define or quantify the criteria that would establish whether a specific television station is dominant in its field of operation. Accordingly, the estimate of small businesses to which rules may apply do not exclude any television station from the definition of a small business on this basis and are therefore over-inclusive to that extent. Also as noted, an additional element of the definition of “small business” is that the entity must be independently owned and operated. We note that it is difficult at times to assess these criteria in the context of media entities and our estimates of small businesses to which they apply may be over-inclusive to this extent. *Cable and Other Program Distribution* . The Census Bureau defines this category as follows: “This industry comprises establishments primarily engaged as third-party distribution systems for broadcast programming. The establishments of this industry deliver visual, aural, or textual programming received from cable networks, local television stations, or radio networks to consumers via cable or direct-to-home satellite systems on a subscription or fee basis. These establishments do not generally originate programming material.” The SBA has developed a small business size standard for Cable and Other Program Distribution, which is: all such firms having $13.5 million or less in annual receipts. According to Census Bureau data for 2002, there were a total of 1,191 firms in this category that operated for the entire year. Of this total, 1,087 firms had annual receipts of under $10 million, and 43 firms had receipts of $10 million or more but less than $25 million. Thus, under this size standard, the majority of firms can be considered small. 1. *Cable Companies and Systems* . The Commission has also developed its own small business size standards, for the purpose of cable rate regulation. Under the Commission's rules, a “small cable company” is one serving 400,000 or fewer subscribers, nationwide. Industry data indicate that, of 1,076 cable operators nationwide, all but eleven are small under this size standard. In addition, under the Commission's rules, a “small system” is a cable system serving 15,000 or fewer subscribers. Industry data indicate that, of 7,208 systems nationwide, 6,139 systems have under 10,000 subscribers, and an additional 379 systems have 10,000-19,999 subscribers. Thus, under this second size standard, most cable systems are small. 2. *Cable System Operators* . The Communications Act of 1934, as amended, also contains a size standard for small cable system operators, which is “a cable operator that, directly or through an affiliate, serves in the aggregate fewer than 1 percent of all subscribers in the United States and is not affiliated with any entity or entities whose gross annual revenues in the aggregate exceed $250,000,000.” The Commission has determined that an operator serving fewer than 677,000 subscribers shall be deemed a small operator, if its annual revenues, when combined with the total annual revenues of all its affiliates, do not exceed $250 million in the aggregate. Industry data indicate that, of 1,076 cable operators nationwide, all but ten are small under this size standard. We note that the Commission neither requests nor collects information on whether cable system operators are affiliated with entities whose gross annual revenues exceed $250 million, and therefore we are unable to estimate more accurately the number of cable system operators that would qualify as small under this size standard. Description of Projected Reporting, Recordkeeping and Other Compliance Requirements The *Second Order* retains the revised core programming processing guideline for digital stations adopted in the 2004 Order but clarifies the number of permissible core program repeats under the guideline. Specifically, we clarify that at least 50 percent of the core programming counted toward meeting the additional programming guideline cannot consist of program episodes that had already aired within the previous seven days on either the station's main program stream or on another of the station's free digital program streams. We also amend FCC Form 398 to collect the information necessary to enforce the limit on repeats under the revised guideline. We permit licensees to certify on Form 398 that they have complied with the repeat restriction and do not require broadcasters to identify each program episode on Form 398. Licensees must retain records sufficient to document the accuracy of their certification, including records of actual program episodes aired, and make such documentation available to the public upon request. The children's programming liaison identified in the FCC Form 398 must be able to provide documentation to substantiate the certification if requested. The *Second Order* repeals the ten percent cap on preemptions of core children's programming adopted in the *2004 Order* and instead institutes a procedure similar to that used by the Media Bureau and the Commission following adoption of the 1996 children's television Order whereby networks sought informal approval of their preemption plans each year. Under the policy formerly developed by the Commission staff, a program counted as preempted only if it was not aired in a substitute time slot (otherwise known as a “second home”) with an on-air notification of the schedule change occurring at the time of preemption during the previously scheduled episode. The on-air notification must announce the alternate date and time when the preempted show will air. As part of this policy, we will require all networks requesting preemption flexibility to file a request with the Media Bureau by August 1 of each year stating the number of preemptions the network expects, when the program will be rescheduled, whether the rescheduled time is the program's second home, and the network's plan to notify viewers of the schedule change. We will presume that non-network stations are complying with the three hour core programming requirement, and do not need broad preemption relief. The *Second Order* retains the rule on Web site addresses adopted in the *2004 Order* with two clarifications:
(1)The rule applies only when Internet addresses are displayed during program material or during promotional material not counted as commercial time; and
(2)if an Internet address for a Web site that does not meet the four-prong test is displayed during a promotion, in addition to counting against the commercial time limits, the promotion will be clearly separated from programming material. We exempt from the Web site display rules certain PSAs, which are not commercial matter under our rules. Specifically, we define PSAs exempt from the Web site display rules as: PSAs aired on behalf of independent non-profit or government organizations, or media companies in partnership with non-profits or government entities, that display Web sites not under the control of the licensee or cable company. We also clarify that station identifications and emergency announcements are not subject to the rules governing the display of Web site addresses as long as the display is consistent with the purpose of the announcement. Closing credits are not exempt from application of the Web site address rules. The Commission's host selling policy prohibits the use of program characters or show hosts to sell products in commercials during or adjacent to shows in which the character or host appears. The *Second Order* adopts the following host selling rule with respect to Web site addresses: Entities subject to commercial time limits under the Children's Television Act (“CTA”) will not display a Web site address during or adjacent to a program if, at that time, on pages that are primarily devoted to free noncommercial content regarding that specific program or a character appearing in that program:
(1)Products are sold that feature a character appearing in that program; or
(2)a character appearing in that program is used to actively sell products. To clarify, this rule does not apply to:
(1)Third-party sites linked from the companies' web pages;
(2)on-air third-party advertisements with Web site references to third-party Web sites; or
(3)pages that are primarily devoted to multiple characters from multiple programs. The limitation on the duration of advertising in children's programming of 10 1/2 minutes per hour on weekends and 12 minutes per hour on weekdays applies to “commercial matter.” Prior to the *2004 Order* , the term “commercial matter” was defined to exclude certain types of program interruptions, including promotions of upcoming programs that do not mention sponsors. The *2004 Order* revised the definition of “commercial matter” to include promotions of television programs or video programming services other than children's educational and informational programming. The revised definition applies to analog and digital broadcasters and to cable operators. The *Second Order* revises the definition of “commercial matter” to exclude
(1)promotions for any children's or other age-appropriate programming appearing on the same channel, and
(2)promotions for children's educational and informational programming appearing on any channel. Steps Taken To Minimize Significant Impact on Small Entities, and Significant Alternatives Considered The RFA requires an agency to describe any significant, specifically small business, alternatives that it has considered in reaching its proposed approach, which may include the following four alternatives (among others): “(1) The establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities;
(2)the clarification, consolidation, or simplification of compliance and reporting requirements under the rule for such small entities;
(3)the use of performance rather than design standards; and
(4)an exemption from coverage of the rule, or any part thereof, for such small entities.” Several steps were taken to minimize the impact on small entities. As noted above, the *Second Order* adopts the alternative recommended by NAB and others that broadcasters be permitted to certify on FCC Form 398 their compliance with the limit on the number of repeats of digital core programming under the revised processing guideline. See paragraph 23, supra. Thus, broadcasters will not be obligated to identify each program episode on Form 398, but will be required to retain documentation sufficient to substantiate the certification on Form 398. This step will make compliance with the rules easier for all broadcasters, including smaller broadcasters. The Commission considered, but rejected, the approach of requiring broadcasters to identify each program episode on the Form 398. That approach, if adopted, would have imposed a greater burden on broadcasters. The *Second Order* also lifts the cap on the number of preemptions of core programs adopted in the *2004 Order * and instead returns to the prior practice of permitting networks that need scheduling flexibility to accommodate sports and other programming to request such flexibility from the Media Bureau. This change should help all broadcasters, including small broadcasters, by providing more scheduling flexibility. The Commission considered, but rejected, keeping the cap on the number of preemptions as adopted in the *2004 Order* , which would have been more burdensome to broadcasters. In addition, the *Second Order* also revises the definition of “host selling” adopted in the *2004 Order * with respect to Web site address displays in children's programming. The revised definition is less restrictive than that adopted in 2004 and permits the sale of merchandise featuring a program-related character in parts of the Web site that are sufficiently separated from the program itself to protect children from the unique impact of host selling. This change should provide more flexibility to all broadcasters and cable operators, including smaller entities, and should be less burdensome to all affected entities. Another change made in the *Second Order* that will ease the burden on all entities in complying with the rules is the change in the definition of “commercial matter.” The revised definition provides additional flexibility for broadcasters and cable operators and permits them to air program promotions that would not have been permitted under the rule adopted in 2004. Report to Congress The Commission will send a copy of the *Second Order* , including this FRFA, 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). In addition, the Commission will send a copy of the *Second Order* , including this FRFA, to the Chief Counsel for Advocacy of the Small Business Administration. See 5 U.S.C. 604(b). A copy of the *Second Order* and FRFA (or summaries thereof) will also be published in the **Federal Register** . *See* 5 U.S.C. 604(b). List of Subjects 47 CFR Part 73 Television. 47 CFR Part 76 Cable television. Federal Communications Commission. Marlene H. Dortch, Secretary. Rule Changes For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR parts 73 and 76 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, and 336. 2. Section 73.670 is amended by revising paragraph
(b)introductory text and paragraph (c), adding paragraph (d), and revising Note 1 to read as follows (Note 2 remains unchanged): § 73.670 Commercial limits in children's programs.
(b)The display of Internet Web site addresses during program material or promotional material not counted as commercial time is permitted only if the Web site:
(c)If an Internet address for a Web site that does not meet the test in paragraph
(b)of this section is displayed during a promotion in a children's program, in addition to counting against the commercial time limits in paragraph
(a)of this section the promotion must be clearly separated from program material. (d)(1) Entities subject to commercial time limits under the Children's Television Act shall not display a Web site address during or adjacent to a program if, at that time, on pages that are primarily devoted to free noncommercial content regarding that specific program or a character appearing in that program:
(i)Products are sold that feature a character appearing in that program; or
(ii)A character appearing in that program is used to actively sell products.
(2)The requirements of this paragraph do not apply to:
(i)Third-party sites linked from the companies' Web pages;
(ii)On-air third-party advertisements with Web site references to third-party Web sites; or
(iii)Pages that are primarily devoted to multiple characters from multiple programs. Note 1: *Commercial matter * means air time sold for purposes of selling a product or service and promotions of television programs or video programming services other than children's or other age-appropriate programming appearing on the same channel or promotions for children's educational and informational programming on any channel. 3. Section 73.671 is amended by revising paragraph (e)(3) and by removing paragraph
(f)to read as follows: § 73.671 Educational and informational programming for children.
(e)* * *
(3)For purposes of the guideline described in paragraph (e)(2) of this section, at least 50 percent of the core programming counted toward meeting the additional programming guideline cannot consist of program episodes that had already aired within the previous seven days on either the station's main program stream or on another of the station's free digital program streams. This requirement does not apply to any program stream that merely time shifts the entire programming line-up of another program stream and, during the digital transition, to core programs aired on both the analog station and a digital program stream. PART 76—MULTICHANNEL VIDEO AND CABLE TELEVISION SERVICE 4. The authority citation for part 76 continues to read as follows: Authority: 47 U.S.C. 151, 152, 153, 154, 301, 302, 303, 303a, 307, 308, 309, 312, 317, 325, 338, 339, 503, 521, 522, 531, 532, 533, 534, 535, 536, 537, 543, 544, 544a, 545, 548, 549, 552, 554, 556, 558, 560, 561, 571, 572, and 573. 5. Section 76.225 is amended by revising paragraphs
(b)introductory text, (c), and (d), by adding paragraph (e), and by revising Note 1 to § 76.225 to read as follows: § 76.225 Commercial limits in children's programs.
(b)The display of Internet Web site addresses during program material or promotional material not counted as commercial time is permitted only if the Web site:
(c)If an Internet address for a Web site that does not meet the test in paragraph
(b)of this section is displayed during a promotion in a children's program, in addition to counting against the commercial time limits in paragraph
(a)of this section the promotion must be clearly separated from program material. (d)(1) Entities subject to commercial time limits under the Children's Television Act shall not display a Web site address during or adjacent to a program if, at that time, on pages that are primarily devoted to free noncommercial content regarding that specific program or a character appearing in that program:
(i)Products are sold that feature a character appearing in that program; or
(ii)A character appearing in that program is used to actively sell products.
(2)The requirements of this paragraph do not apply to:
(i)Third-party sites linked from the companies' Web pages;
(ii)On-air third-party advertisements with Web site references to third-party Web sites; or
(iii)Pages that are primarily devoted to multiple characters from multiple programs.
(e)The requirements of this section shall not apply to programs aired on a broadcast television channel which the cable operator passively carries, or to access channels over which the cable operator may not exercise editorial control, pursuant to 47 U.S.C. 531(e) and 532(c)(2). Note 1 to § 76.225: *Commercial matter * means air time sold for purposes of selling a product or service and promotions of television programs or video programming services other than children's or other age-appropriate programming appearing on the same channel or promotions for children's educational and informational programming on any channel. [FR Doc. E6-18401 Filed 10-31-06; 8:45 am] BILLING CODE 6712-01-P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 635 [I.D. 102606C] Atlantic Highly Migratory Species; Atlantic Bluefin Tuna Fisheries AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Temporary rule; inseason retention limit adjustment. SUMMARY: NMFS has determined that the daily Atlantic bluefin tuna
(BFT)retention limits for the Atlantic tunas General category should be adjusted to provide reasonable opportunity to harvest the General category November through January time-period subquota. Therefore, NMFS increases the daily BFT retention limits for the entire month of November, including previous scheduled Restricted Fishing Days (RFDs), to provide enhanced commercial General category fishing opportunities in all areas while minimizing the risk of an overharvest of the General category BFT quota. DATES: The effective dates for the BFT daily retention limits are provided in Table 1 under SUPPLEMENTARY INFORMATION . FOR FURTHER INFORMATION CONTACT: Brad McHale, 978-281-9260. SUPPLEMENTARY INFORMATION: Regulations implemented under the authority of the Atlantic Tunas Convention Act (16 U.S.C. 971 *et seq.* ) and the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act; 16 U.S.C. 1801 *et seq.* ) governing the harvest of BFT by persons and vessels subject to U.S. jurisdiction are found at 50 CFR part 635. The 2006 BFT fishing year began on June 1, 2006, and ends May 31, 2007. The final initial 2006 BFT specifications and General category effort controls were published on May 30, 2006 (71 FR 30619). These final specifications divided the General category quota among three subperiods (June through August, the month of September, and October through January) in accordance with the Highly Migratory Species Fishery Management Plan (1999 FMP) published in 1999 (May 29, 1999; 64 FR 29090), and implementing regulations at § 635.27. The final initial 2006 BFT specifications increased the General category retention limit to three fish for the June though August time-period, as well as established the following General category Restricted Fishing Day
(RFD)schedule: all Saturday and Sundays from November 18, 2006, through January 31, 2007, and Thursday November 23, 2006, and Monday December 25, 2006, inclusive. Due to the large amount of available quota and the low catch rates, NMFS extended the three-fish retention limit through September (71 FR 51529, August 30, 2006) and October (71 FR 58287, October 3, 2006) respectively to enhance fishing opportunities while minimizing the risk of exceeding available quota. On October 2, 2006, NMFS published a final rule implementing the Consolidated Highly Migratory Species Fishery Management Plan (HMS FMP) (71 FR 58058). Contained in the HMS FMP is a revised General category time-period subquota allocation scheme that has divided the coastwide General category into the following five distinct time-periods; June through August, September, October and November, December, and January of the following year. The effective date of these time-periods and their associated subquota is November 1, 2006. Daily Retention Limits Pursuant to this action and the final initial 2006 BFT specifications, noted above, the daily BFT retention limits for Atlantic tunas General category are as follows: Table 1. Effective dates for retention limit adjustments Permit Category Effective Dates Areas BFT Size Class Limit General October 1, 2006, through October 31, 2006, inclusive All Three BFT per vessel per day/trip, measuring 73 inches (185 cm) curved fork length
(CFL)or larger November 1, 2006, through November 30, 2006, inclusive All Three BFT per vessel per day/trip, measuring 73 inches (185 cm) curved fork length
(CFL)or larger December 1, 2006, through January 31, 2007, inclusive All One BFT per vessel per day/trip, measuring 73 inches (185 cm) CFL or larger Adjustment of General Category Daily Retention Limits Under § 635.23(a)(4), NMFS may increase or decrease the General category daily retention limit of large medium and giant BFT over a range from zero (on RFDs) to a maximum of three per vessel to allow for a reasonable opportunity to harvest the quota for BFT. As part of the final specifications on May 30, 2006 (71 FR 30619), NMFS adjusted the commercial daily BFT retention limit, in all areas, for those vessels fishing under the General category quota, to three large medium or giant BFT, measuring 73 inches (185 cm) or greater curved fork length (CFL), per vessel per day/trip. This retention limit, which was to remain in effect through August 31, 2006, inclusive, was extended through September and October through separate actions filed with the **Federal Register** . From November 1, 2006, through January 31, 2007, inclusive, the General category daily BFT retention limit was scheduled to revert to one large medium or giant BFT per vessel per day/trip. The June through August, September, and soon to be effective October and November time-period subquota allocations for the 2006 fishing year total approximately 1,041.2 metric tons (mt). As of October 23, 2006, 94.5 mt have been landed in the General category and catch rates are less than 1.0 mt per day. If catch rates remain at current levels and RFDs remain as scheduled, approximately 29 mt would be landed through November 30, 2006. This projection would bring June though November landings to approximately 123.5 mt, resulting in an underharvest of approximately 917.7 mt. The October 2, 2006, final rule established stand-alone General category time-periods for the months of December and January. Each of these time-periods are allocated a portion of the coastwide General category, thereby ensuring fishing opportunities are provided in years where high catch rates are experienced. The quota carryover from the previous time-period subquotas, combined with the newly established December and January time-period subquota allocations, would allow for approximately 1,039.8 mt to be harvested through January 31, 2007. In combination with the subquota rollover from previous time-periods, scheduled RFDs, current catch rates, and the daily retention limit reverting to one large medium or giant BFT per vessel per day on November 1, 2006, NMFS anticipates the full October and November time-period subquota will not be harvested. Adding an excessive amount of unused quota from one time-period subquota to the subsequent time-period subquota is undesirable because it effectively changes the time-period subquota allocation percentages established in the HMS FMP and may contribute to excessive carry-overs to subsequent fishing years. In the past, however, the fishery has had the capability of increasing landings rates dramatically in the latter Fall and Winter months, particularly off southern states. If the fishery was to perform at these past levels with high landings rates (although not witnessed during the winter of 2005/2006), it may alleviate concern of excessive roll-overs from one fishing year to the next, but raises the possibility of unprecedented, and potentially unsustainable, catch rates during the winter fishery. The final initial 2006 BFT specifications scheduled a number of RFDs for the month of November, including all Saturdays and Sundays, as well as Thursday November 23, 2006. These RFDs were designed to provide for an extended late season, south Atlantic BFT fishery for the commercial handgear fishermen in the General category. For the reasons referred to above, NMFS has determined that the scheduled November RFDs are no longer required to meet their original purpose, and may in fact exacerbate low catch rates. Therefore, NMFS determined an increase in the General category daily BFT retention limit on those previously established RFDs for the month of November is warranted. NMFS has selected these days in order to give adequate advance notice to fishery participants. While catch rates have continued to be low so far this season, NMFS recognizes that they may increase at any time late in the season. In order to ensure equitable fishing opportunities in all areas, NMFS has not waived the RFDs scheduled in December and January at this time. If catch rates continue to be low, some or all of the remaining previously scheduled RFDs may be waived as well. Therefore, based on a review of dealer reports, daily landing trends, available quota, revised time-periods, and the availability of BFT on the fishing grounds, NMFS has determined that an increase in the General category daily BFT retention limit effective from November 1, 2006, through November 30, 2006, inclusive of previously scheduled RFDs for the month of November, is warranted. Thus, the General category daily retention limit of three large medium or giant BFT per vessel per day/trip (see Table 1) is extended through November 30, 2006, including all Saturdays and Sundays of November as well as Thursday November 23, 2006. From December 1, 2006, through January 31, 2007, inclusive, the General category default daily BFT retention limit will be one large medium or giant BFT per vessel per day/trip will apply, unless further action is taken. NMFS anticipates that with a combination of the default retention limit starting on December 1, 2006, and the large amount of General category quota available, there will be sufficient quota for the coastwide General category season to extend through the winter months and allow for a southern Atlantic fishery to take place with minimal risk of landings exceeding available quota. However, to reduce the risks of excessive landings rates throughout December and January, NMFS has determined it necessary to only extend the three BFT daily retention limit for the one month of November and will re-examine the need to further extend the increased bag limit prior to newly established December and January time-periods based on landings rates and other fishery information. This adjustment is intended to provide a reasonable opportunity to harvest the U.S. landings quota of BFT while maintaining an equitable distribution of fishing opportunities, to help achieve optimum yield in the General category BFT fishery, to collect a broad range of data for stock monitoring purposes, and to be consistent with the objectives of the HMS FMP. Monitoring and Reporting NMFS selected the daily retention limits and their duration after examining current and previous fishing year catch and effort rates, taking into consideration public comment on the annual specifications and inseason management measures for the General category received during the 2006 BFT quota specifications rulemaking process, and analyzing the available quota for the 2006 fishing year. NMFS will continue to monitor the BFT fishery closely through dealer landing reports, the Automated Landings Reporting System, state harvest tagging programs in North Carolina and Maryland, and the Large Pelagics Survey. Depending on the level of fishing effort and catch rates of BFT, NMFS may determine that additional retention limit adjustments are necessary to ensure available quota is not exceeded or, to enhance scientific data collection from, and fishing opportunities in, all geographic areas. Closures or subsequent adjustments to the daily retention limits, if any, will be published in the **Federal Register** . In addition, fishermen may call the Atlantic Tunas Information Line at
(888)872-8862 or
(978)281-9260, or access the internet at www.hmspermits.gov, for updates on quota monitoring and retention limit adjustments. Classification The Assistant Administrator for NMFS (AA), finds that it is impracticable and contrary to the public interest to provide prior notice of, and an opportunity for public comment on, this action for the following reasons: NMFS has recently become aware of increased availability of large medium and giant BFT off southern New England and southern Atlantic fishing grounds from fishing reports and landings data from dealers. This increase in abundance provides the potential to increase General category landings rates if fishery participants are authorized to harvest three large medium or giant BFT per day. Although landings to date have been low (i.e., less than one mt per day) there is the potential for increased availability of BFT during the Fall to allow for an increase in fishery landing rates. The regulations implementing the HMS FMP provide for inseason retention limit adjustments to respond to the unpredictable nature of BFT availability on the fishing grounds, the migratory nature of this species, and the regional variations in the BFT fishery. Adjustment of retention limits, including waiving previously scheduled RFDs in the month of November, is also necessary to avoid excessive quota rollovers to subsequent General category time-period subquotas. Affording prior notice and opportunity for public comment to implement these retention limits is impracticable as it would preclude NMFS from acting promptly to allow harvest of BFT that are still available on the fishing grounds. Analysis of available data shows that the General category BFT retention limit may be increased for the Atlantic tuna General and HMS Charter/Headboat permit holders with minimal risks of exceeding the International Commission for the Conservation of Atlantic Tunas allocated quota. Delays in increasing the retention limits would be contrary to the public interest. Limited opportunities to harvest the respective quotas may have negative social and economic impacts to U.S. fishermen that either depend on catching the available quota within the time-periods designated in the HMS FMP, or depend on multiple BFT retention limits to attract individuals to book charters. For both the General and the HMS Charter/Headboat sectors, the retention limits must be adjusted as expeditiously as possible so the impacted sectors can benefit from the adjustment. Therefore, the AA finds good cause under 5 U.S.C. 553(b)(B) to waive prior notice and the opportunity for public comment. For all of the above reasons, and because this action relieves a restriction (i.e., current default retention limit is one fish per vessel/trip but this action increases that limit and allows retention of more fish), there is also good cause under 5 U.S.C. 553(d) to waive the 30-day delay in effectiveness. This action is being taken under 50 CFR 635.23(a)(4) and is exempt from review under Executive Order 12866. Authority: 16 U.S.C. 971 *et seq.* and 1801 *et seq.* Dated: October 26, 2006. Alan D. Risenhoover, Director, Office of Sustainable Fisheries, National Marine Fisheries Service. [FR Doc. 06-9007 Filed 10-27-06; 2:36 pm]
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34 references not yet in our index
- 33 CFR 117
- 33 CFR 165
- 5 USC 601-612
- Pub. L. 104-121
- 44 USC 3501-3520
- 2 USC 1531-1538
- 42 USC 4321-4370f
- Pub. L. 107-295
- 39 CFR 111
- 49 CFR 178.604
- 49 CFR 178.609
- 49 CFR 178.606
- 49 CFR 178.608
- 21 USC 151-159
- 42 USC 264-272
- 49 CFR 173.199
- 40 CFR 52
- 40 CFR 2
- 40 CFR 75
- 40 CFR 60
- Pub. L. 104-4
- 40 CFR 174
- 40 CFR 178
- 40 CFR 180
- 40 CFR 158.740(b)(2)(i)
- 40 CFR 174.475
- Pub. L. 104-113
- 44 CFR 67
- 44 CFR 60
- 44 CFR 10
- 47 CFR 73
- 47 CFR 76
- 50 CFR 635
- 50 CFR 635.23(a)(4)
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