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Code · REGISTER · 2006-11-03 · Inspector General, DoD · Rules and Regulations

Rules and Regulations. Final rule

52,310 words·~238 min read·/register/2006/11/03/06-9053

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

BILLING CODE 5001-06-M DEPARTMENT OF DEFENSE 32 CFR Part 312 [Docket No. DOD-2006-OS-0168] RIN 0790-AI01 Inspector General; Privacy Act; Implementation AGENCY: Inspector General, DoD. ACTION: Final rule. SUMMARY: The Office of the Inspector General
(OIG)is exempting those records in a new system of records (CIG-23, “Public Affairs Files,” (August 7, 2006, 71 FR 44667)) in its inventory of systems of records pursuant to the Privacy Act of 1974 (5 U.S.C. 552a), as amended. DATES: *Effective Date:* December 4, 2006. FOR FURTHER INFORMATION CONTACT: Mr. Darryl R. Aaron at
(703)604-9785. SUPPLEMENTARY INFORMATION: The proposed rule was published on August 7, 2006, at 71 FR 44602. No comments were received. The rule is therefore adopted as published below. Executive Order 12866, “Regulatory Planning and Review” It has been determined that Privacy Act rules for the Department of Defense are not significant rules. The rules do not
(1)have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy; a sector of the economy; productivity; competition; jobs; the environment; public health or safety; or State, local, or tribal governments or communities;
(2)create a serious inconsistency or otherwise interfere with an action taken or planned by another Agency;
(3)materially alter the budgetary impact of entitlements, grants, user fees, or loan programs, or the rights and obligations of recipients thereof; or
(4)raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in this Executive order. Public Law 96-354, “Regulatory Flexibility Act” (5 U.S.C. Chapter 6) It has been determined that Privacy Act rules for the Department of Defense do not have significant economic impact on a substantial number of small entities because they are concerned only with the administration of Privacy Act systems of records within the Department of Defense. Public Law 96-511, “Paperwork Reduction Act” (44 U.S.C. Chapter 35) It has been determined that Privacy Act rules for the Department of Defense impose no information requirements beyond the Department of Defense and that the information collected within the Department of Defense is necessary and consistent with 5 U.S.C. 552a, known as the Privacy Act of 1974. Section 202, Public Law 104-4, “Unfunded Mandates Reform Act” It has been determined that Privacy Act rulemaking for the Department of Defense does not involve a Federal mandate that may result in the expenditure by State, local and tribal governments, in the aggregate, or by the private sector, of $100 million or more and that such rulemaking will not significantly or uniquely affect small governments. Executive Order 13132, “Federalism” It has been determined that Privacy Act rules for the Department of Defense do not have federalism implications. The rules do 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. List of Subjects in 32 CFR Part 312 Privacy. Accordingly, 32 CFR part 312 is amended as follows: PART 312—OIG PRIVACY ACT PROGRAM 1. The authority citation for 32 CFR part 312 continues to read as follows: Authority: Pub. L. 93-579, 88 Stat. 1896 (5 U.S.C. 552a). 2. § 312.12, is amended by adding paragraph
(j)to read as follows: § 312.12 Exemptions.
(j)*System identifier:* CIG 23
(1)*System name:* Public Affairs Files.
(2)*Exemption:* During the course of processing a General Counsel action, exempt materials from other systems of records may in turn become part of the case records in this system. To the extent that copies of exempt records from those ‘other’ systems of records are entered into the Public Affairs Files, the Office of the Inspector General hereby claims the same exemptions for the records from those ‘other’ systems that are entered into this system, as claimed for the original primary systems of records which they are a part.
(3)*Authority:* 5 U.S.C. 552a(j)(2), (k)(1), (k)(2), (k)(3), (k)(4), (k)(5), (k)(6), and (k)(7).
(4)*Reasons:* Records are only exempt from pertinent provisions of 5 U.S.C. 552a to the extent
(1)such provisions have been identified and an exemption claimed for the original record and
(2)the purposes underlying the exemption for the original record still pertain to the record which is now contained in this system of records. In general, the exemptions were claimed in order to protect properly classified information relating to national defense and foreign policy, to avoid interference during the conduct of criminal, civil, or administrative actions or investigations, to ensure protective services provided the President and others are not compromised, to protect the identity of confidential sources incident to Federal employment, military service, contract, and security clearance determinations, to preserve the confidentiality and integrity of Federal testing materials, and to safeguard evaluation materials used for military promotions when furnished by a confidential source. The exemption rule for the original records will identify the specific reasons why the records are exempt from specific provisions of 5 U.S.C. 552a. Dated: October 30, 2006. C.R. Choate, Alternate OSD Federal Register Liaison Officer, Department of Defense. [FR Doc. E6-18588 Filed 11-2-06; 8:45 am] BILLING CODE 5001-06-P DEPARTMENT OF DEFENSE 32 CFR Part 318 [Docket No. DOD-2006-OS-0169] RIN 0790-AI03 Defense Threat Reduction Agency; Privacy Act; Implementation AGENCY: Defense Threat Reduction Agency, DoD. ACTION: Final rule. SUMMARY: The Defense Threat Reduction Agency is exempting those records in a new system of records (HDTRA 021, “Freedom of Information Act and Privacy Act Case Files” (August 7, 2006, 71 FR 44668)) in its inventory of systems of records pursuant to the Privacy Act of 1974 (5 U.S.C. 552a), as amended. EFFECTIVE DATE: December 4, 2006. FOR FURTHER INFORMATION CONTACT: Ms. Brenda M. Carter at
(703)325-1205 or DSN 221-1205. SUPPLEMENTARY INFORMATION: The proposed rule was published on August 7, 2006, at 71 FR 44603. One public comment was received, but the comments did not impact the proposed rule. The rule is therefore adopted as published below. Executive Order 12866, “Regulatory Planning and Review” It has been determined that Privacy Act rules for the Department of Defense are not significant rules. The rules do not
(1)Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy; a sector of the economy; productivity; competition; jobs; the environment; public health or safety; or State, local, or tribal governments or communities;
(2)Create a serious inconsistency or otherwise interfere with an action taken or planned by another Agency;
(3)Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs, or the rights and obligations of recipients thereof; or
(4)Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in this Executive order. Public Law 96-354, “Regulatory Flexibility Act” (5 U.S.C. Chapter 6) It has been determined that Privacy Act rules for the Department of Defense do not have significant economic impact on a substantial number of small entities because they are concerned only with the administration of Privacy Act systems of records within the Department of Defense. Public Law 96-511, “Paperwork Reduction Act” (44 U.S.C. Chapter 35) It has been determined that Privacy Act rules for the Department of Defense impose no information requirements beyond the Department of Defense and that the information collected within the Department of Defense is necessary and consistent with 5 U.S.C. 552a, known as the Privacy Act of 1974. Section 202, Public Law 104-4, “Unfunded Mandates Reform Act” It has been determined that Privacy Act rulemaking for the Department of Defense does not involve a Federal mandate that may result in the expenditure by State, local and tribal governments, in the aggregate, or by the private sector, of $100 million or more and that such rulemaking will not significantly or uniquely affect small governments. Executive Order 13132, “Federalism” It has been determined that Privacy Act rules for the Department of Defense do not have federalism implications. The rules do 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. List of Subjects in 32 CFR Part 318 Privacy. Accordingly, 32 CFR part 318 is amended as follows: PART 318—DEFENSE THREAT REDUCTION AGENCY PRIVACY PROGRAM 1. The authority citation for 32 CFR part 318 continues to read as follows: Authority: Pub. L. 93-579, 88 Stat. 1896 (5 U.S.C. 552a). 2. Section 318.16 is amended by adding paragraph
(d)as follows: § 318.16 Exemption rules.
(d)System identifier and name: HDTRA 021, Freedom of Information Act and Privacy Act Request Case Files.
(1)*Exemption:* During the processing of a Freedom of Information Act or Privacy Act request exempt materials from other systems of records may in turn become part of the case record in this system. To the extent that copies of exempt records from those ‘other' systems of records are entered into this system, the Defense Threat Reduction Agency claims the same exemptions for the records from those ‘other' systems that are entered into this system, as claimed for the original primary system of which they are a part.
(2)*Authority:* 5 U.S.C. 552a(j)(2), (k)(1), (k)(2), (k)(3), (k)(4), (k)(5), (k)(6) and (k)(7).
(3)*Reasons:* Records are only exempt from pertinent provisions of 5 U.S.C. 552a to the extent such provisions have been identified and an exemption claimed for the original record and the purposes underlying the exemption for the original record still pertain to the record which is now contained in this system of records. In general, the exemptions were claimed in order to protect properly classified information relating to national defense and foreign policy, to avoid interference during the conduct of criminal, civil, or administrative actions or investigations, to ensure protective services provided the President and others are not compromised, to protect the identity of confidential sources incident to Federal employment, military service, contract, and security clearance determinations, to preserve the confidentiality and integrity of Federal testing materials, and to safeguard evaluation materials used for military promotions when furnished by a confidential source. The exemption rule for the original records will identify the specific reasons why the records are exempt from specific provisions of 5 U.S.C. 552a. Dated: October 30, 2006. C.R. Choate, Alternate OSD Federal Register Liaison Officer, Department of Defense. [FR Doc. E6-18592 Filed 11-2-06; 8:45 am] BILLING CODE 5001-06-P DEPARTMENT OF DEFENSE Defense Logistics Agency [Docket: DoD-2006-OS-0022] RIN 0790-AI00 32 CFR Part 323 Privacy Act; Implementation AGENCY: Defense Logistics Agency, DoD. ACTION: Final rule. SUMMARY: The Defense Logistics Agency
(DLA)is modifying its exemption rule for a system of records (S500.10, “Personnel Security Files,” (August 11, 2006, 71 FR 46201)) in its inventory of systems of records pursuant to the Privacy Act of 1974 (5 U.S.C. 552a), as amended. EFFECTIVE DATE: December 4, 2006. FOR FURTHER INFORMATION CONTACT: Ms. Jody Sinkler at
(703)767-5045. SUPPLEMENTARY INFORMATION: The proposed rule was published on August 11, 2006, at 71 FR 46180. No comments were received. The rule is therefore adopted as published below. Executive Order 12866, “Regulatory Planning and Review” It has been determined that Privacy Act rules for the Department of Defense are not significant rules. The rules do not
(1)Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy; a sector of the economy; productivity; competition; jobs; the environment; public health or safety; or State, local, or tribal governments or communities;
(2)Create a serious inconsistency or otherwise interfere with an action taken or planned by another Agency;
(3)Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs, or the rights and obligations of recipients thereof; or
(4)Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in this Executive order. Public Law 96-354, “Regulatory Flexibility Act” (5 U.S.C. Chapter 6) It has been determined that Privacy Act rules for the Department of Defense do not have significant economic impact on a substantial number of small entities because they are concerned only with the administration of Privacy Act systems of records within the Department of Defense. Public Law 96-511, “Paperwork Reduction Act” (44 U.S.C. Chapter 35) It has been determined that Privacy Act rules for the Department of Defense impose no information requirements beyond the Department of Defense and that the information collected within the Department of Defense is necessary and consistent with 5 U.S.C. 552a, known as the Privacy Act of 1974. Section 202, Public Law 104-4, “Unfunded Mandates Reform Act” It has been determined that Privacy Act rulemaking for the Department of Defense does not involve a Federal mandate that may result in the expenditure by State, local and tribal governments, in the aggregate, or by the private sector, of $100 million or more and that such rulemaking will not significantly or uniquely affect small governments. Executive Order 13132, “Federalism” It has been determined that Privacy Act rules for the Department of Defense do not have federalism implications. The rules do 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. List of Subjects in 32 CFR Part 323 Privacy. Accordingly, 32 CFR part 323 is amended as follows: PART 323—DLA PRIVACY ACT PROGRAM 1. The authority citation for 32 CFR part 323 continues to read as follows: Authority: Pub. L. 93-579, 88 Stat. 1896 (5 U.S.C. 552a). 2. Appendix H to part 323 is amended by revising paragraphs a.1. through a.4. to read as follows: Appendix H to Part 323—DLA Exemption Rules a. ID: S500.10 (Specific exemption). 1. *System name:* Personnel Security Files. 2. *Exemption:* Investigatory material compiled solely for the purpose of determining suitability, eligibility, or qualifications for Federal civilian employment, Federal contracts, or access to classified information may be exempt pursuant to 5 U.S.C. 552a(k)(5), but only to the extent that such material would reveal the identity of a confidential source. Therefore, portions of this system may be exempt pursuant to 5 U.S.C. 552a(k)(5) from the following subsections of 5 U.S.C. 552a(c)(3), (d), and (e)(1). 3. *Authority:* 5 U.S.C. 552a(k)(5). 4. *Reasons:*
(i)From subsection (c)(3) and
(d)when access to accounting disclosures and access to or amendment of records would cause the identity of a confidential source to be revealed. Disclosure of the source's identity not only will result in the Department breaching the promise of confidentiality made to the source but it will impair the Department's future ability to compile investigatory material for the purpose of determining suitability, eligibility, or qualifications for Federal civilian employment, Federal contracts, or access to classified information. Unless sources can be assured that a promise of confidentiality will be honored, they will be less likely to provide information considered essential to the Department in making the required determinations.
(ii)From (e)(1) because in the collection of information for investigatory purposes, it is not always possible to determine the relevance and necessity of particular information in the early stages of the investigation. In some cases, it is only after the information is evaluated in light of other information that its relevance and necessity becomes clear. Such information permits more informed decision-making by the Department when making required suitability, eligibility, and qualification determinations. Dated: October 30, 2006. C.R. Choate, Alternate OSD Federal Register Liaison Officer, Department of Defense. [FR Doc. E6-18593 Filed 11-2-06; 8:45 am] BILLING CODE 5001-06-P DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 165 [CGD05-06-092] RIN 1625-AA00 Safety Zone: Fireworks Display, Trent River, New Bern, NC AGENCY: Coast Guard, DHS. ACTION: Temporary final rule. SUMMARY: The Coast Guard proposes the establishment of a 1000 foot safety zone around a fireworks display for the North Carolina Parks and Recreation Conference occurring on November 12, 2006, on the Trent River, New Bern, NC. This action is intended to restrict vessel traffic on the Trent River. This safety zone is necessary to protect mariners from the hazards associated with fireworks displays. DATES: This rule is effective from 6 p.m. to 8 p.m. on November 12, 2006. ADDRESSES: Comments and material received from the public, as well as documents indicated in this preamble as being available in the docket, are part of docket (CGD05-06-092) and are available for inspection or copying at Commander, Sector North Carolina, 2301 East Fort Macon Road, Atlantic Beach, NC 28512. Sector North Carolina maintains the public docket for this rulemaking. Comments and material received from the public, as well as documents indicated in this preamble as being available in the docket, will become part of this docket and will be available for inspection or copying at the Federal Building Fifth Coast Guard District between 9 a.m. and 2 p.m., Monday through Friday, except Federal Holidays. FOR FURTHER INFORMATION CONTACT: CWO Christopher Humphrey, Prevention Department, Coast Guard Sector North Carolina, at
(252)247-4525. SUPPLEMENTARY INFORMATION: Regulatory Information On September 12, 2006, we published a notice of proposed rulemaking
(NPRM)entitled Safety Zone: Fireworks Display, Trent River, New Bern, NC in the **Federal Register** (71 FR 53627). We received no letters commenting on the proposed rule. No public meeting was requested, and none was held. 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.** Delaying the effective date would be contrary to the public interest since immediate action is needed to minimize danger to the public during the event. The potential danger posed by the pyrotechnic display, make special local regulations necessary to provide for the safety of the event participants, spectator craft and other vessels transiting the event area. However advance notifications will be made to users of Trent River via marine information broadcasts, local notice to mariners, commercial radio stations and area newspapers. Background and Purpose On November 12, 2006, the North Carolina Parks & Recreation Conference fireworks display will be held on the Trent River in New Bern, NC. Spectators will be observing from both the shore and from vessels. Due to the need of protection of mariners and spectators from the hazards associated with the fireworks display, vessel traffic will be temporarily restricted. Discussion of Comments and Changes The Coast Guard did not receive comments in response to the notice of proposed rulemaking
(NPRM)published in the **Federal Register.** Accordingly, the Coast Guard is establishing temporary special local regulations on specified waters of Trent River, New Bern, North Carolina. 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. It is not “significant” under the regulatory policies and procedures of the Department of Homeland Security (DHS). We expect the economic impact of this rule to be so minimal that a full Regulatory Evaluation under the regulatory policies and procedures of DHS is unnecessary. Although this regulation restricts access to the regulated area, the effect of this rule will not be significant because:
(i)The COTP may authorize access to the safety zone;
(ii)the safety zone will be in effect for a limited duration; and
(iii)the Coast Guard will make notifications via maritime advisories so mariners can adjust their plans accordingly. 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 would not have a significant economic impact on a substantial number of small entities. This rule will affect the following entities, some of which may be small entities: The owners and operators of vessels intending to transit or anchor in that portion of the Trent River from 6 p.m. to 8 p.m. on November 12, 2006. The safety zone will not have a significant impact on a substantial number of small entities, because the zone will only be in place for a few hours and maritime advisories will be issued, so the mariners can adjust their plans accordingly. If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (see ADDRESSES ) explaining why you think it qualifies and how and to what degree this rule would economically affect it. 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. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact CWO Christopher Humphrey, Prevention Department, Sector North Carolina, at
(252)247-4525. The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard. Collection of Information This rule would call 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 would not result in such expenditure, we do discuss the effects of this rule elsewhere in this preamble. Taking of Private Property This rule would not affect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights. Civil Justice Reform This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden. Protection of Children We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and would not create an environmental risk to health or risk to safety that might disproportionately affect children. Indian Tribal Governments This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it would 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 guides the Coast Guard in complying with the National Environmental Policy Act of 1969
(NEPA)(42 U.S.C. 4321-4370f), and have made a preliminary determination 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, we believe that this rule should be 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” will be 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, and Waterways. For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 Subpart C 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 § 165.T05-092, to read as follows: § 165.T05-092 Safety Zone: Trent River, New Bern, North Carolina.
(a)*Location.* The following area is a safety zone: All waters of the Trent River within 1000 feet of the fireworks display at New Bern, NC, approximate position 35-00-15N 077-02-39W in the Captain of the Port, Sector North Carolina zone as defined in 33 CFR § 3.25-20.
(b)*Definition:* As used in this section *designated representative* means any U.S. Coast Guard commissioned, warrant or petty officer who has been authorized by the Captain of the Port, Sector North Carolina to act on his behalf.
(c)*Regulation:*
(1)In accordance with the general regulations in 165.23 of this part, entry into this zone is prohibited unless authorized by the Captain of the Port, Sector North Carolina, NC, or designated representative.
(2)The operator of any vessel in the immediate vicinity of this safety zone shall:
(i)stop the vessel immediately upon being directed to do so by any commissioned, warrant or petty officer on board a vessel displaying a U.S. Coast Guard Ensign.
(ii)Proceed as directed by any commissioned, warrant or petty officer on board a vessel displaying a U.S. Coast Guard Ensign.
(3)The Captain of the Port, Coast Guard Sector North Carolina Prevention Department, Morehead City, North Carolina can be contacted at telephone number
(252)247-4570 or
(252)247-4520.
(4)Coast Guard vessels enforcing the safety zone can be contacted on VHF-FM marine band radio, channel 13 (156.65 MHz) and channel 16 (156.8 MHz).
(d)*Enforcement period:* This regulation will be enforced from 6 p.m. to 8 p.m. on November 12, 2006. Dated: October 20, 2006. William D. Lee, Captain, U.S. Coast Guard, Captain of the Port, Sector North Carolina. [FR Doc. E6-18515 Filed 11-2-06; 8:45 am] BILLING CODE 4910-15-P DEPARTMENT OF COMMERCE United States Patent and Trademark Office 37 CFR Part 1 [Docket No.: PTO-P-2006-0005] RIN 0651-AC01 Changes To Eliminate the Disclosure Document Program AGENCY: United States Patent and Trademark Office, Commerce. ACTION: Final rule. SUMMARY: The United States Patent and Trademark Office (Office) implemented the Disclosure Document Program in 1969 in order to provide an alternative form of evidence of conception of an invention to, for example, a “self-addressed envelope” containing a disclosure of an invention. It appears, however, that few, if any, inventors obtain any actual benefit from a disclosure document, and some inventors who use the Disclosure Document Program erroneously believe that they are actually filing an application for a patent. In addition, a provisional application for patent affords better benefits and protection to inventors than a disclosure document and could be used for the same purposes as a disclosure document if necessary. Therefore, the Office is eliminating the Disclosure Document Program. DATES: *Effective Date:* February 1, 2007. FOR FURTHER INFORMATION CONTACT: Catherine M. Kirik, Office of the Commissioner for Patents, by telephone at
(571)272-8040, by mail addressed to: Mail Stop Comments—Patents, Commissioner for Patents, P.O. Box 1450, Alexandria, VA, 22313-1450, or by facsimile to
(571)273-0170, marked to the attention of Catherine M. Kirik. SUPPLEMENTARY INFORMATION: The Disclosure Document Program allows an inventor to file a document with the Office which includes a written description and drawings of his or her invention in sufficient detail to enable a person of ordinary skill in the art to make and use the invention to establish a date of conception of an invention in the United States under 35 U.S.C. 104 prior to the application filing date. The inventor must sign the disclosure document and include a separate signed cover letter identifying the papers as a disclosure document. A disclosure document does not require either a claim in compliance with 35 U.S.C. 112, ¶ 2, or an inventor's oath (or declaration) under 35 U.S.C. 115, and is not accorded a patent application filing date. A disclosure document is to be destroyed by the Office after two years unless it is referred to in a separate letter in a related provisional or nonprovisional application filed within those two years. The filing fee for a disclosure document is $10.00. *See* 37 CFR 1.21(c). The Office implemented the Disclosure Document Program in 1969 in order to provide a form of evidence of conception of an invention as an alternative to forms such as a “self-addressed envelope.” *See Disclosure Document Program* , 34 FR 6003 (Apr. 2, 1969), 861 *Off. Gaz. Pat. Office* 1 (May 6, 1969). Since June of 1995, however, applicants have been able to file a provisional application for patent, which provides more benefits and protections to inventors than a disclosure document. A provisional application must contain a specification in compliance with 35 U.S.C. 112, ¶ 1, and drawings, if drawings are necessary to understand the invention described in the specification. A provisional application must name the inventors and be accompanied by a separate cover sheet identifying the papers as a provisional application. The basic filing fee for a provisional application by a small entity is $100.00. *See* 37 CFR 1.16(d). A provisional application does not require a claim under 35 U.S.C. 112, ¶ 2, or an inventor's oath (or declaration) under 35 U.S.C. 115. While a nonprovisional application must be filed within twelve months of the filing date of a provisional application in order for the inventor to claim the benefit of the provisional application under 35 U.S.C. 119(e), the file of a provisional application is retained by the Office for at least twenty years, or longer if it is referenced in a patent or patent application publication (an abandoned provisional application is still retained for at least five years from the filing date of the provisional application if no nonprovisional application claiming benefit of the provisional application under 35 U.S.C. 119(e) has been filed). With respect to an invention claimed in a nonprovisional application that is entitled under 35 U.S.C. 119(e) to the benefit of a provisional application, the provisional application is considered a constructive reduction to practice of an invention as of the filing date accorded the application, if it describes the invention in sufficient detail to enable a person of ordinary skill in the art to make and use the invention and discloses the best mode known by the inventor for carrying out the invention. Thus, the disclosure requirements for a provisional application are similar to the disclosure requirements for a disclosure document, and a provisional application provides users with a filing date without starting the patent term period. Therefore, any benefit derived from the filing of a disclosure document may also be obtained from the filing of a provisional application. A provisional application is, however, more useful to an inventor than a disclosure document. A provisional application, just like a nonprovisional application, establishes a constructive reduction to practice date with respect to an invention claimed in a nonprovisional application that is entitled under 35 U.S.C. 119(e) to the benefit of the provisional application and disclosed in the provisional application in the manner required by 35 U.S.C.112, ¶ 1, and can be used under the Paris Convention to establish a priority date for foreign filing. A disclosure document, which is not a patent application, may only be used as evidence of a conception date of an invention under 35 U.S.C. 104 and therefore does not establish a constructive reduction to practice date for an invention described therein. Thus, to use a disclosure document to establish prior invention under 35 U.S.C. 102(g) or under 37 CFR 1.131, an inventor may rely on the disclosure document to demonstrate that he or she conceived of the invention first, but the inventor may also be required to demonstrate that he or she was reasonably diligent from a date just prior to:
(1)The date of conception by the other party in an interference proceeding; or
(2)the effective date of a reference being used by the Office to reject one or more claims of an application until the inventor's actual or constructive reduction to practice. With respect to an invention claimed in a nonprovisional application that is entitled under 35 U.S.C. 119(e) to the benefit of a provisional application and disclosed in the provisional application in the manner required by 35 U.S.C.112, ¶ 1, however, the provisional application may be used to establish a constructive reduction to practice date as of the filing date of the provisional application. Under 35 U.S.C. 102(b), any public use or sale of an invention in the U.S. or description of an invention in a patent or a printed publication anywhere in the world more than one year prior to the filing of a patent application on that invention will bar the grant of a patent. In addition, many foreign countries currently have what is known as an “absolute novelty” requirement which means that a public disclosure of an invention anywhere in the world prior to the filing date of an application for patent will act as a bar to the granting of any patent directed to the invention disclosed. Since a disclosure document is not a patent application, it does not help an inventor avoid the forfeiture of U.S. or foreign patent rights. The Office has determined that it is now appropriate to eliminate the Disclosure Document Program because, *inter alia* , independent inventors have become more familiar with and are using provisional applications more often than they were in 1998, and provisional applications provide more protections for independent inventors than disclosure documents. The Office will continue to accept disclosure documents until February 1, 2007, and plans to return a flyer to each person submitting a disclosure document notifying him or her that the Office is terminating the Disclosure Document Program and will no longer accept disclosure documents on or after February 1, 2007. For disclosure documents received in the Office on or after February 1, 2007 (regardless of the date indicated on a postmark), the Office will return the disclosure document (with any fee included) to the person who submitted it (if possible) with a flyer notifying him or her that the Office has terminated the Disclosure Document Program. Discussion of Specific Rules Title 37 of the Code of Federal Regulations, Part 1, is amended as follows: *Section 1.21:* Section 1.21(c) currently sets forth a fee ($10.00) for filing a disclosure document. Section 1.21 is amended to remove and reserve paragraph
(c)in view of the elimination of the Disclosure Document Program. *Response to comments:* The Office published a notice proposing changes to eliminate the Disclosure Document Program. *See Changes to Eliminate the Disclosure Document Program* , 71 FR 17399 (Apr. 6, 2006), 1306 *Off. Gaz. Pat. Office* 22 (May 2, 2006) (proposed rule). The Office received comments from the American Intellectual Property Law Association (AIPLA), the United Inventors Association (UIA), and 23 individuals. The comments and the Office's responses to the comments follow: *Comment 1:* Several comments supported the Office proposal to eliminate the Disclosure Document Program, citing confusion by independent inventors regarding the benefits supplied by a disclosure document. *Response:* The Office is in this final rule proceeding with the elimination of the Disclosure Document Program. *Comment 2:* Several comments suggested it was in the best interest of independent inventors to spend $10.00 for a disclosure document filing rather than spending $100.00 for a provisional application filing, and that only large entities could afford the provisional application filing fee. Another comment argued that independent inventors do not have the funds to pay an attorney to file a provisional application. *Response:* It is inappropriate to just compare fees. The benefits of a provisional application are far greater than any benefit provided by a disclosure document. The majority of provisional applications filed since fiscal year 2002 are by small entity applicants, which does not support the position that small entities cannot afford the provisional application filing fee or the costs involved in preparing a provisional application. *Comment 3:* Several comments argued that the one-year protection period afforded by a provisional application was too short. *Response:* It is not appropriate to compare the one-year time period in 35 U.S.C. 119(e) to the two-year time period during which the Office will retain a disclosure document. A disclosure document is not a patent application and is not accorded a patent application filing date. A disclosure document has no more evidentiary value than an abandoned provisional application for which no benefit is ever claimed under 35 U.S.C. 119(e). The Office will retain an abandoned provisional application for at least five years from the filing date of the provisional application, even if no nonprovisional application claiming benefit of the provisional application under 35 U.S.C. 119(e) has been filed. *Comment 4:* Several comments argued benefits to filing a provisional application cannot be compared to the benefits of filing a disclosure document because the benefit of constructive reduction to practice is the same regardless of which type of patent application is filed. *Response:* A provisional application is, with respect to an invention claimed in a nonprovisional application that is entitled under 35 U.S.C. 119(e) to the benefit of a provisional application, considered a constructive reduction to practice of an invention as of the filing date accorded the application if the provisional application describes the invention in sufficient detail to enable a person of ordinary skill in the art to make and use the invention and discloses the best mode known by the inventor for carrying out the invention. A disclosure document, however, is not a patent application and therefore is not considered a constructive reduction to practice of an invention and may only be used as evidence of a date of conception of an invention under 35 U.S.C. 104. *Comment 5:* Several comments argued that the Disclosure Document Program should not be eliminated as long as the United States remains a first-to-invent country, and also that inventors should have the right to use the government as a witness through the Disclosure Document Program without relying upon a third party for corroboration. *Response:* The fact that the United States uses a first-to-invent standard in determining the right to a patent does not make the Disclosure Document Program necessary. The United States used a first-to-invent standard in determining the right to a patent prior to 1969 without the need for a Disclosure Document Program. In addition, the core mission of the Office is the granting and issuing of patents and the registration of trademarks, and the disseminating to the public information with respect to patents and trademarks. *See* 35 U.S.C. 2(a). There is no reason why it is necessary or germane to its core missions for the Office to act as witness for inventors through the Disclosure Document Program. Furthermore, to the extent that the Disclosure Document Program acts as an evidence depository for the purpose of establishing a conception date, a provisional application can be used in the same fashion if necessary. *Comment 6:* One comment argued that the Office assertions that “few, if any, inventors obtain any actual benefit from a disclosure document, and some inventors who use the Disclosure Document Program believe that they are actually filing an application for a patent” are not supported by verifiable evidence, such as opinion surveys. One comment argued that because of the long duration between submitting a disclosure document and obtaining a benefit from it, it is difficult to measure actual benefit. Another comment argued that it is unfair to judge the “conversion rate” of disclosure documents into provisional applications as an indicator of actual benefit. *Response:* The Office issued over three million patents since 1976, and of these three million patents only 1,330 (0.04%) reference a disclosure document. Between fiscal years 2002 and 2005, the Office issued over 700,000 patents. While 86,087 disclosure documents were filed with the Office between fiscal years 2002 and 2005, of the over 700,000 patents issued between fiscal years 2002 and 2005, only 223 (0.03%) reference a disclosure document. That is, while the Office receives a large number of disclosure documents, there are relatively few instances in which a disclosure document is referenced in a subsequent patent. Thus, the Office maintains that few, if any, inventors obtain any actual benefit from a disclosure document ( *i.e.* , through the filing of a subsequent patent application). The Office has received sufficient feedback through its independent inventor outreach programs and from other Government agencies ( *e.g.* , the Federal Trade Commission) to conclude that some inventors who use the Disclosure Document Program believe that they are actually filing an application for a patent. The Office has also been sued by an inventor who was under the impression that a disclosure document was a patent application. *See Akbar v. Dickinson* , Civil Action No. 99-1286 HHK (D.D.C. 1999) (Office motion to dismiss granted). *Comment 7:* Several comments argued a disclosure document filing permits an independent inventor to tell potential investors the invention is “registered” with the Office, and encourages potential investors to sign non-disclosure agreements. One comment argued the Disclosure Document Program gives an “actual benefit” to inventors by easing fears that someone will steal their invention. *Response:* The Document Disclosure Program was not and is not intended to be a vehicle for obtaining “registrations” from the Office. The Office does not “register” materials submitted in a disclosure document. There are commercial invention registries available that might be able to serve the registration functions desired by inventors. An inventor can ease fears that someone will steal his or her invention by taking other steps, such as the filing of a provisional application, or through the use of a commercial invention registry. *Comment 8:* One comment cited a disclosure document as being instrumental in the receipt of his patent. *Response:* A disclosure document may be relied upon as evidence of conception of invention in support of an affidavit or declaration under § 1.131. *See* MPEP 1706. A disclosure document, however, is only one of the types of evidence that may be relied upon as evidence of conception of invention in support of an affidavit or declaration under § 1.131. *See* MPEP 715.07 (an affidavit or declaration under § 1.131 may be supported by, for example, attached sketches, attached blueprints, attached photographs, attached reproductions of notebook entries, an accompanying model, attached supporting statements by witnesses, testimony given in an interference, or a disclosure document). The overwhelming majority of affidavits or declarations under § 1.131 do not rely upon a disclosure document as evidence of conception of invention and are acceptable without a disclosure document. Thus, a disclosure document is not necessary for an applicant to establish a prior date of invention in an affidavit or declaration under § 1.131. A disclosure document may also be relied upon during an interference proceeding to provide corroboration for a conception of the invention. The actual use of a disclosure document during an interference proceeding occurs about once every decade. In contrast, between 86 (fiscal year 2004) and 287 (fiscal year 1997) interferences have been declared each year during the last ten fiscal years. This incidental use of disclosure documents during interference proceedings likewise does not justify continuation of the Disclosure Document Program. *Comment 9:* Many comments argued that independent inventors do not generally keep a fully documented, updated, and witnessed inventor's notebook and thus rely on the Disclosure Document Program. One comment argued that elimination of the Disclosure Document Program would lead to increased use of self-addressed stamped envelopes
(SASE)and a decrease of intellectual property creators registering a copyright with the Library of Congress. One comment argued individual inventors can achieve stronger protections through the use of an inventor's notebook, because of possibility of witnesses, a disclosure more thorough than that in the Disclosure Document Program, and the lack of an expiration date. *Response:* There is no reason why inventors could not use a properly maintained inventor's laboratory notebook as an alternative to the Disclosure Document Program. An inventor's laboratory notebook requires no filing fee and has no expiration date. *Comment 10:* One comment included a proposal to privatize and manage the Disclosure Document Program should the Office decide to eliminate the Disclosure Document Program. *Response:* The Disclosure Document Program is not an inherently governmental function of the Office, and there are no statutory provisions relating to the Disclosure Document Program. Therefore, it is not necessary for any non-governmental entity that wishes to manage a “disclosure document” type program to obtain approval from the Office. *Comment 11:* One comment stated the Disclosure Document Program should remain in effect, with filings re-named “Non-Patent Information Record” to record idea conception. One comment argued for the retention of the Disclosure Document Program, along with the creation of a new “independent inventor patent” having a term of seven years. *Response:* As discussed previously, the core mission of the Office is the granting and issuing of patents and the registration of trademarks, and the disseminating to the public information with respect to patents and trademarks. Renaming or enhancing the Disclosure Document Program would not advance the core missions of the Office. In addition, viable alternatives to disclosure documents, such as notebooks and commercial invention registries, and provisional patent applications, currently exist. The creation of a new “independent inventor patent” having different rights and/or patent term would require a change to the patent statutes, and thus extends beyond the issues relating to the existing Disclosure Document Program. Rule Making Considerations Regulatory Flexibility Act For the reasons set forth herein, the Deputy General Counsel for General Law of the United States Patent and Trademark Office has certified to the Chief Counsel for Advocacy of the Small Business Administration that the changes in this final rule will not have a significant economic impact on a substantial number of small entities. *See* 5 U.S.C. 605(b). There is no statutory provision relating to the Disclosure Document Program. The program dates back to 1969, when commercial services were not as abundantly available. Now, there are commercially available “electronic notebooks” that may be used to document evidence of conception of an invention. In addition, inventors may maintain a logbook containing fixed pages that may be witnessed to document evidence of conception of an invention. These alternatives to a disclosure document are available to inventors at a cost that is comparable to or less than the fee for a disclosure document. Thus, the program is no longer necessary. Executive Order 13132 This rule making does not contain policies with federalism implications sufficient to warrant preparation of a Federalism Assessment under Executive Order 13132 (Aug. 4, 1999). Executive Order 12866 This rule making has been determined to be not significant for purposes of Executive Order 12866 (Sept. 30, 1993). Paperwork Reduction Act The information collection requirements being suspended by this rule were approved in accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 *et seq.* ) by the Office of Management and Budget
(OMB)under 0651-0030 disclosure documents. Suspension of the reporting requirements under 0651-0030 is expected to reduce the public reporting burden by 4,445 hours and $236,000. This final rule will thus not impose any additional reporting or recordkeeping requirements on the public. Interested persons are requested to send comments to the Office of Information and Regulatory Affairs, Office of Management and Budget, New Executive Office Building, Room 10202, 725 17th Street, NW., Washington, DC 20503, Attention: Desk Officer for the Patent and Trademark Office; and
(2)Robert J. Spar, Director, Office of Patent Legal Administration, Commissioner for Patents, P.O. Box 1450, Alexandria, VA 22313-1450. Notwithstanding any other provision of law, no person is required to respond to nor shall a person be subject to a penalty for failure to comply with a collection of information subject to the requirements of the Paperwork Reduction Act unless that collection of information displays a currently valid OMB control number. List of Subjects 37 CFR Part 1 Administrative practice and procedure, Courts, Freedom of Information, Inventions and patents, Reporting and recordkeeping requirements, Small Businesses. For the reasons set forth in the preamble, 37 CFR part 1 is amended as follows: PART 1—RULES OF PRACTICE IN PATENT CASES 1. The authority citation for 37 CFR part 1 continues to read as follows: Authority: 35 U.S.C. 2(b)(2). § 1.21 [Amended] 2. Section 1.21 is amended by removing and reserving paragraph (c). Dated: October 27, 2006. Jon W. Dudas, Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office. [FR Doc. E6-18606 Filed 11-2-06; 8:45 am] BILLING CODE 3510-16-P LIBRARY OF CONGRESS Copyright Office 37 CFR Parts 201 [Docket Nos. RF 2006-2 and RF 2006-3] Designation as a Preexisting Subscription Service AGENCY: Copyright Office, Library of Congress. ACTION: Final order. SUMMARY: The Copyright Royalty Board, acting pursuant to statute, referred a novel question of law to the Register of Copyrights concerning the designation of certain digital subscription music services as preexisting subscription services. Specifically, the Copyright Royalty Board requested a decision by the Register of Copyrights regarding whether the universe of preexisting subscription services was limited to three specific services. The Register of Copyrights, in a timely fashion, transmitted a Memorandum Opinion to the Copyright Royalty Board confirming that only three music services qualify as a preexisting subscription service for purposes of performing a sound recording publicly by means of a subscription digital audio transmission pursuant to a statutory license. DATES: Effective Date: October 20, 2006. FOR FURTHER INFORMATION CONTACT: Renee Coe, Attorney Advisor, and Tanya M. Sandros, Associate General Counsel, Copyright GC/I&R, P.O. Box 70400, Southwest Station, Washington, DC 20024. Telephone:
(202)707-8380. Telefax:
(202)707-8366. SUPPLEMENTARY INFORMATION: In the Copyright Royalty and Distribution Reform Act of 2004, Congress amended Title 17 to replace the copyright arbitration royalty panel with the Copyright Royalty Board (“Board”). One of the functions of the new Board is to make determinations and adjustments of reasonable terms and rates of royalty payments as provided in sections 112(e), 114, 115, 116, 118, 119 and 1004 of the Copyright Act. In any case in which a novel question of law concerning an interpretation of a provision of the Copyright Act is presented in a ratesetting proceeding, the Board has the authority to request a decision of the Register of Copyrights (“Register”), in writing, to resolve such questions. *See* 17 U.S.C. 802(f)(1)(B)(i). For this purpose, a “novel question of law” is a question of law that has not been determined in prior decisions, determinations, and rulings described in Section 803(a) of the Copyright Act. On January 4, 2006, SoundExchange, Inc. (“SoundExchange”) filed a motion requesting that the Board refer to the Register of Copyrights a novel question of law, concerning, *inter alia* , the status of ancillary music services offered by Sirius Satellite Radio, Inc. (“Sirius”) and XM Satellite Radio (“XM”) for purposes of utilizing the statutory license set forth in Section 114 of the Copyright Act, title 17 of the United States Code. On May 4, 2006, SoundExchange filed a second motion, again requesting a referral of a novel question of substantive law, this time concerning the status of THP Capstar (“Capstar”), a company which, according to the SoundExchange motion, had purchased some of the assets of DMX, Inc. (“DMX”) — a company which had been operating under the Section 114 statutory license as a preexisting service. After considering the arguments presented by SoundExchange and the replies filed by Sirius, XM, and Capstar, the Board agreed that the matters raised by SoundExhange’s motions did present a novel question of law and agreed to submit the question to the Register. Accordingly, on September 20, 2006, the Board transmitted to the Register:
(1)two Orders, dated August 21, 2006, referring a novel question of law; and
(2)the Initial and Reply Briefs filed with the Board by SoundExchange, Sirius and DMX. The Board’s transmittal triggered the 30-day decision period prescribed in Section 802 of the Copyright Act. This statutory provision states that the Register “shall transmit his or her decision to the Copyright Royalty Judges within 30 days after the Register of Copyrights receives all of the briefs or comments of the participants.” *See* 17 U.S.C. 802(f)(1)(B)(i). On October 20, 2006, the Register transmitted a Memorandum Opinion to the Board that addressed the novel question of law. To provide the public with notice of the decision rendered by the Register, the Memorandum Opinion is reproduced in its entirety, below. Dated: October 26, 2006. Marybeth Peters, Register of Copyrights. **Before the** **U.S. Copyright Office** **Library of Congress** **Washington, D.C. 20559** **[Docket No. RF 2006-2]** **In the Matter of** **Adjusting of Rates and Terms for** **Preexisting Subscription Services and** **Satellite Digital Audio Radio Services** **[Docket No. RF 2006-3]** **In the Matter of** **Digital Performance Right in Sound** **Recordings and Ephemeral Recordings** **For a New Subscription Service** MEMORANDUM OPINION I. Introduction On September 20, 2006, the Copyright Royalty Board (“Board”), acting on requests by SoundExchange, Inc. (“SoundExchange”) and pursuant to 17 U.S.C. § 802(f)(1)(B), referred a novel question of law 1 to the Register of Copyrights (“Register”) regarding the conditions under which an entity may be a “preexisting subscription service” under 17 U.S.C. § 114(j)(11). Specifically, the Board requested a decision by the Register as to the following: 1 A “novel question of law” is a question of law that has not been determined in prior decisions, determinations, and rulings described in Section 803(a) of the Copyright Act. *See* 17 U.S.C. § 802(f)(1)(B)(ii). Is the universe of preexisting subscription services—defined in 17 U.S.C. § 114(j)(11) as services which perform sound recordings by means of noninteractive audio—only subscription digital audio transmissions and which were in existence and making such transmissions to the public for a fee on or before July 31, 1998—[limited by] 2 law to only Muzak (provided over the DiSH Network), Music Choice, and DMX? 3 2 The bracketed words are omitted in the Board’s order for Docket No. 2006-01 DSTRA. 3 The Board orders quoted a portion of subparagraph (11). This is the entire provision:“A preexisting subscription service” is a service that performs sound recordings by means of noninteractive audio-only subscription digital audio transmissions, which was in existence and was making such transmissions to the public for a fee on or before July 31, 1998, and may include a limited number of sample channels representative of the subscription service that are made available on a nonsubscription basis in order to promote the subscription service. The Board also stated that it “specifically reserves any questions regarding successorship for its own subsequent determination as questions of fact or mixed questions of fact and law.” In sum, eligibility for a preexisting subscription service license is limited to subscription services that satisfy the definition of 17 U.S.C. § 114(j)(11), which includes being in operation on July 31, 1998 and continuously operating since that time. In 1998, Congress identified those entities which satisfied the definition and were eligible at that time as being DMX, Music Choice and the DiSH Network. Therefore, today, those same services are the only ones that may qualify as being preexisting subscription services, since they are the only ones which can satisfy the requirement of being in operation as of July 31, 1998. Moreover, for purposes of participating in a rate setting proceeding, the term “preexisting subscription service” is best interpreted as meaning the business entity which operates under the statutory license. A determination of whether DMX is the same service that was identified by the legislative history in 1998 and has operated continuously since that time requires a factual analysis that is beyond the scope of the Register’s authority for questions presented under 17 U.S.C. § 802(f)(1)(B). II. Background and General Overview A. Parties and Nature of Dispute In Docket No. 2005-5 CRB DTNSRA, SoundExchange, representing copyright owners of digital audio sound recordings, alleges that Sirius Satellite Radio (hereafter, “Sirius”), which is a user of sound recordings by publicly performing them as digital audio transmissions, does not satisfy the eligibility criteria to operate under the § 114 statutory license as a preexisting subscription service. In Docket No. 2006-1 CRB DSTRA, the same dispute is repeated between those two parties. 4 There is an additional party in Docket No. RF 2006-1 CRB DSTRA because SoundExchange raises similar objections against DMX, Inc. (hereafter, “DMX”), which also publicly performs digital audio sound recordings. 4 The briefs filed by SoundExchange in the two proceedings are identical, as are those filed by Sirius. B. Historical Background to Legal Disputes The factual allegations are briefly summarized here to put the legal arguments in context. However, evaluation of the limited factual arguments presented in the briefs are beyond the scope of this decision and will not be considered by the Register in rendering her decision on the novel question of law referred by the Board. SoundExchange alleges that Sirius and DMX are not eligible for a statutory license for preexisting subscription services because they are not the entities that were in existence and making digital audio transmissions on or before July 31, 1998. SoundExchange argues that Sirius is a completely different company than Muzak, the entity that is eligible for a preexisting subscription service license. DMX bases its eligibility on the fact that it now owns and operates the service historically known as DMX. DMX has been continuously performing sound recordings by means of digital audio transmission since 1986. It is not disputed that, since 1986, the business known as DMX changed ownership and was restructured many times, including four times since 1998. As a subsidiary of Maxide Acquisition, Inc., DMX went into bankruptcy proceedings in 2005. The current entity operating as DMX was acquired by THP Capstar Acquisition Corp. as part of the bankruptcy proceedings. SoundExchange was a party to those proceedings, as a creditor to DMX. The current DMX did not assume liability for royalties owed to SoundExchange by the DMX business entity that incurred those obligations prior to the bankruptcy proceedings. While there is agreement on that fact, there appears to be disagreement about the nature of the interests acquired by the current entity operating as DMX. SoundExchange states that the current business entity that is DMX, Inc. is not a successor in interest to the business that previously operated as DMX because it acquired some but not all of the DMX operations. DMX responds that it acquired assets sufficient to operate the DMX subscription service. On June 3, 2005, DMX filed a *Notice of Use of Sound Recordings Under Statutory License* as a preexisting subscription service, under the name THP Capstar Acquisition Corp. d/b/a DMX Music. C. Legal Background **1. Statutory Framework: The Digital Millennium Copyright Act** The Digital Millennium Copyright Act (“DMCA”), enacted in 1998, amended the law for the statutory license to perform sound recordings as digital audio transmissions by adding the statutory provisions at issue here, among other changes. Pub. L. No. 105-304, 112 Stat. 2860, 2891, 2897-99 (Oct. 28, 1998). A major goal of the DMCA is to establish a market-based standard for setting royalty rates paid to copyright owners for use of their works under the § 114 statutory license. This standard, codified at 17 U.S.C. § 114(f)(2)(B), requires that rates and terms be set to reflect those that “would have been negotiated in the marketplace between a willing buyer and a willing seller.” This standard must be used to set rates for all services making digital transmissions of sound recordings under the § 114 statutory license, except for the preexisting subscription services. Rates for the preexisting subscription services are set based upon the statutory factors set forth at 17 U.S.C. § 801(b)(1), 5 and this did not change with the passage of the DMCA. That means that licensees operating under the statutory license as preexisting subscription services have the right to operate under terms and rates that were first set by a Copyright Arbitration Royalty Panel
(CARP)6 in May of 1998, and readjusted in July of 2003, 7 in accordance with the § 801(b)(1) standard. Thus, it becomes important to determine which services qualify as a preexisting subscription service. 5 The current provisions of 17 U.S.C. § 801(b)(1) are a reenactment of those that were in effect in 1998. The Copyright Royalty and Distribution Reform Act of 2004 completely revised Chapter 8 of title 17, *United States Code* . Pub. L. No. 108-419, 118 Stat. 2341 (2004). There are only minor differences between the language that was in effect for that provision in 1998 and what is currently in effect. The provisions of 17 U.S.C. § 802(b)(1) that were in effect in 1998 are contained in the Copyright Act of 1976, Pub. L. No. 94-553, 90 Stat. 2541, 2594 (1976), as amended by the Digital Performance Right in Sound Recordings Act of 1995, Pub. L. No. 104-39, 109 Stat. 336, 348 (1995); Copyright Technical Amendments, Pub. L. No. 105-80, 111 Stat. 1529, 1533
(1997)and the Digital Millennium Copyright Act, Pub. L. No. 105-304, 112 Stat. 2860, 2902 (1998). 6 As part of the changes made by the Copyright Royalty and Distribution Reform Act of 2004, the Board, which referred the question to the Register under consideration here, replaced the CARP system that had been established in 1993 with the passage of the Copyright Royalty Tribunal Reform Act of 1993, Pub. L. No. 103-198, 107 Stat. 2304. 7 In 1995, Congress established the digital performance right for sound recordings subject to certain limitations including a statutory license. Digital Performance Right in Sound Recordings Act of 1995 (“DPRSRA”), Pub. L. No. 104-39, 109 Stat. 336 (1995). A subscription digital audio service could operate under the statutory license to publicly perform sound recordings by means of a digital audio transmission. provided that the service satisfied certain conditions. One of the conditions was to pay a royalty that would be determined by a CARP with reference to four objectives set forth at 17 U.S.C. § 801(b)(1). The initial rate setting proceeding began in 1996, early in the history of services making digital audio transmissions. The entities that participated in the proceedings as services making digital audio transmissions were Muzak, Digital Cable Radio Associates (operating under the trade name Music Choice) and DMX, Inc. (which merged into TCI Music, Inc. during the proceeding). *See Determination of Reasonable Rates and Terms for the Digital Performance of Sound Recordings* , 63 Fed. Reg. 25,394 (May 8, 1998). In that proceeding, the CARP ultimately concluded that, at that time in the development of those types of services, it set a low rate favoring the license holders “because a rate set toward the high end would thwart the statutory objectives under current market conditions. The CARP expressly noted that a future CARP may reach an entirely different result based on the then-current economic state of the industry and new information on the Services’ impact on the marketplace.” *Id* . at 25,405. These rates and terms were adjusted in 2003 in accordance with an agreement negotiated by the interested parties. *See* 68 Fed. Reg. 4744 (January 30, 2003) and 68 Fed. Reg. 39,837 (July 3, 2003). While the statute does not specifically identify which services meet the statutory definition of a preexisting subscription service, the DMCA conference report states very specifically that there are three services that satisfy the definition of a preexisting subscription service and identifies each service by name several times throughout the report. H.R. Conf. Rep. No. 105-796, at 80-81 and 89 (1998). At one place, the report states: There was [sic] only three such services that exist: DMX (operated by TCI Music), Music Choice (operated by Digital Cable Radio Associates), and the DiSH Network (operated by Muzak). As of July 31, 1998, DMX and Music Choice made transmissions via both cable and satellite media; the DiSH Network was available only via satellite. *Id* . at 81. And again, in its comments about the procedures in 17 U.S.C. § 114(f)(1) for determining reasonable rates and terms for the preexisting services, the conference report identifies each service that qualifies as a preexisting service: The conferees note that this subsection applies only to the three services considered preexisting subscription services, DMX, Music Choice and the DiSH Network, and the two services considered preexisting satellite digital audio radio services, CD Radio and American Mobile Radio Corporation. *Id.* at 85. *See also id* at 89. 8 (final recitation of names of preexisting services as part of discussion in the section discussing the definition of the term, preexisting subscription service). 8 The language used here also appears in an earlier congressional report on the DMCA. Section-by-Section Analysis of H.R. 2281 as Passed by the United States House of Representatives on August 4, 1998. *House Comm. on the Judiciary* , 105th Congress, at 60 [Comm. Print 1998]. The DMCA conference report also discusses the reasons why Congress decided not to subject these preexisting services to the new rate setting standard or impose additional limitations on their transmissions. Specifically, the conference report states that the rationale for its grandfathering provisions is to “prevent disruption of the existing operations by such services,” and it explains that the grandfathering provisions for preexisting satellite digital audio radio services and their “historical operations” have a similar rationale. *Id* . at 81. The report also explains that a preexisting service does not lose its designation as such in the event the service decides to utilize a new transmission medium, provided that the subscription transmissions are similar. In explaining this nuance, the conference report states: In grandfathering these services, the conferee‘s objective was to limit the grandfather to their existing services in the same transmission medium and to any new services in a new transmission medium where only transmissions similar to their existing service are provided. Thus, if a cable subscription music service making transmission on July 31, 1998, were to offer the same music service through the Internet, then such Internet service would be considered part of a preexisting subscription service. If, however, a subscription service making transmissions on July 31, 1998, were to offer a new service either in the same or new transmission medium by taking advantage [sic] of the capabilities of that medium, such new service would not qualify as a preexisting subscription service. For example, a service that offers video programming, such as advertising or other content, would not qualify as a preexisting service, provided that the video programming is not merely information about the service itself, the sound recordings being transmitted, the featured artists, composers or songwriters, or an advertisement to purchase the sound recording transmitted. Id. at 89. 9 9 *Id.* Thus, it is clear why a service would seek to be classified as a preexisting subscription service for purposes of § 114. A designation as a preexisting subscription service means that the service will pay royalty fees that are set according to a standard that may result in below market rates and it has the added benefit that the service can make its offerings of subscription transmissions in a new medium without losing the its status as a preexisting service. The legislative history construing the statutory framework that provides for these services also makes clear that these benefits are limited to only a handful of services that were in operation on July 31,1998. 10 10 *Id.* **2. Summary of the Parties’ Legal Arguments** **a. SoundExchange Legal Arguments** *Statutory Language.* SoundExchange argues that neither DMX nor Sirius is eligible for a statutory license for preexisting subscription services because they do not satisfy the statutory requirements for preexisting subscription services. SoundExchange argues that the statutory license for preexisting subscription services is limited to “business entities which were ‘in existence and ... making [digital audio] transmissions to the public for a fee on or before July 31, 1998,’ 17 U.S.C. § 114(j)(11) and are specifically named” in the DMCA’s legislative history. *Initial Brief of SoundExchange Addressing the Question Referred to the Register Concerning the Universe of Services Eligible for the Preexisting Subscription Service Compulsory License (“SoundExchange Brief”* ), at 2. It states that the definition of preexisting subscription services “speaks of a service as something that is in existence and making transmissions as of July 31, 1998.” *Id* . at 11. SoundExchange also argues that the language of the statutory definition should be interpreted so that an “entity” is a preexisting subscription service, citing as evidence, 17 U.S.C. § 114(e)(1) and (2), which provides authority for parties to negotiate. SoundExchange argues that § 114(e) read in conjunction with the definition at § 114(j)(11) makes it clear that preexisting services are the business entities identified in the legislative history. *Legislative History* . SoundExchange argues that the statutory license for preexisting subscription services was created solely for the entities identified in the legislative history and “solely for the purpose of preserving their business expectancy of operating under the legal standard for setting rates and terms that existed prior to the DMCA.” *Id.* In support, SoundExchange quotes the conference report language that states the purpose of the exemptions is to “prevent disruption of existing operations by such services.” *Id* . at 2,13. SoundExchange contends that Congress intended to benefit those companies that had made a substantial prior investment in digital audio transmission services in reliance on the preexisting rate standard and were in fact making such transmissions. *SoundExchange Brief* , at 3. SoundExchange states that the conference report establishes a requirement that there are only three entities qualified to be preexisting subscription services and the three must be limited to those specifically identified by name. SoundExchange alleges that once the business expectancy of the entity identified in the legislative history is “extinguished,” the statutory license ceases to exist. *Id* . at 4 and 11. It objects to any subsequent entity benefitting from the grandfathering provision as creating a “freely alienable property right to the predecessor legal regime for new market entrants,” which, SoundExchange maintains, Congress did not intend. *Id* . *Principle of Narrow Construction.* In additional arguments, SoundExchange cautions that the Register should adhere to the principle that, since statutory licenses are derogations of the rights of copyright owners, they must be construed as narrowly as possible, both in the scope of the license and the eligibility criteria. *Id* . at 14. In light of this principle, SoundExchange advocates that these statutory licenses should be interpreted narrowly to “restrict the perpetuation or expansion” of the preexisting subscription services statutory licenses. *Id* . at 15. SoundExchange points out that the grandfathering provision is a deep government intrusion into the market place that is potentially discriminatory and that, in the past, the Register herself expressed a preference for parity among statutory licensees. *Id* . at 15. SoundExchange also draws attention to that fact that, aside from the statutory license context, it is a general principle of law that grandfathering provisions should be construed strictly and narrowly. Id. In support of those principles, SoundExchange reminds the Copyright Office of a precedent in which it adhered to those principles of narrowly and strictly construing grandfathering provisions. *Id.* at 17, citing *Compulsory License for Cable Systems* , 49 Fed. Reg. 14,944 (April 16, 1984). *Third Party Transfer of Statutory Licenses* . SoundExchange also argued that statutory licenses are subject to the same restrictions that generally apply against transferability of non-exclusive copyright licenses, citing authorities in support of that principle. *Id* . at 19. SoundExchange *also cites Harris v. Emus Records Corp.* , 734 F.2d 1329, 1333 (9th Cir. 1984) in which, SoundExchange alleges, the United States Court of Appeals for the Ninth Circuit established that the same principles apply to statutory licenses as to voluntary licenses. *Id.* Based on the foregoing considerations, SoundExchange alleges that Sirius and DMX are not eligible for a statutory license as preexisting subscription services since they are not entities that were in existence and making digital audio transmissions on or before July 31, 1998. SoundExchange asserts that neither one is identified in the legislative history naming entities that are preexisting subscription services. SoundExchange maintains that Sirius is a completely different company than Muzak, the entity identified as a preexisting subscription service. SoundExchange also rejects DMX’s claim to eligibility for a statutory license for preexisting services on the basis that, following bankruptcy proceedings for the previous entity operating the DMX preexisting subscription service, THP Capstar did not acquire sufficient assets to be a party in interest that is eligible for the statutory license. SoundExchange concedes that a company does not lose its eligibility for a statutory license merely because it changes its name. *Id.* , at n. 6. **b. Sirius** *Statutory Language* . Sirius argues that it is eligible for a statutory license as a preexisting subscription service because it is performing sound recordings by digital audio transmission for the DiSH Network which is the preexisting subscription service that was in existence on July 31, 1998. Sirius bases its eligibility on the reference in the legislative history to the DiSH Network as a preexisting subscription service and contends “that Congress intended status as a [preexisting subscription service] to flow directly from the fact that the programming is transmitted over the DiSH Network.” *Memorandum of Sirius Satellite Radio Inc. Concerning Eligibility for Status as a “Preexisting Subscription Service,”* at 4. Sirius maintains that, as long as the preexisting subscription service has continued to be DiSH Network, any business entity that provides transmission consistent with the statutory requirements is eligible for the license. Sirius alleges that the definition of preexisting subscription service only requires that the service, not the business entity, be in existence and operating at that time. Sirius points out that to constrain the DiSH Network to rely solely on Muzak is illogical since that ignores the fact that DiSH Network has no control over Muzak’s business and would be unable to control important aspects of its service, such as the quality or nature of the content. Sirius maintains that there is nothing in the statute or legislative history to indicate that DiSH Network was not free to substitute a different transmitting entity. That would be commercially unreasonable and unfair to DiSH Network. *Legislative History* . Sirius further argues that the legislative history is not pertinent since the statute is clear on its face and there is no need to resort to legislative history to interpret the plain meaning of the statute. Nevertheless, Sirius also argues that the legislative history does not support SoundExchange’s interpretation but, rather, emphasizes that the beneficiary of the grandfathering provision is the service, not the business entity. *Principle of Narrow Construction* . Sirius rejects as irrelevant SoundExchange’s reliance on statutory canons regarding the interpretation of grandfather clauses, arguing that the concept of a grandfather clause is irrelevant here since Congress has identified the eligible entities. Sirius states that Congress’ goal is to protect the status of preexisting subscription services. Also, in rebuttal, Sirius cites instances in which courts have rejected the canons cited by SoundExchange and instances in which courts have decided that such clauses must be broadly construed, contrary to SoundExchange’s assertion that they must be narrowly construed. *Reply Memorandum of Sirius Satellite Radio Inc. Concerning Eligibility for Status as A “Preexisting Subscription Service,” (“Sirius Reply”)* , at 7-8. Sirius states that SoundExchange’s reliance on the Register’s 1984 cable compulsory license decision is irrelevant. In support of that position, Sirius argues that what was at issue in that cable compulsory licensing proceeding was a question of which rate to apply when a distant signal equivalent that was not grandfathered was substituted for a signal that was grandfathered, for which the Copyright Office relied on a determination previously made by the Copyright Royalty Tribunal, an organization that became defunct in 1993 and was replaced with the CARP system. Sirius states that the issue stands rather for the proposition that, in matters where the Tribunal had authority to regulate, the Register must give effect to the unambiguously expressed intent of the Tribunal. Sirius dismisses SoundExchange’s assertion that it is a fundamental principle that statutory licenses, as derogations of the rights of copyright owners, must be construed as narrowly as possible. Sirius rebuts that statement by pointing out that the statutory license for preexisting statutory licenses is, itself, a narrowly carved out performance right which is subject to many exceptions and limitations. Therefore, copyright owners, themselves, have very narrow and limited rights with regard to the statutory license to public performances of sound recordings. Therefore, Sirius reasons, it is the sound recording right itself that should be narrowly construed, not the restrictions in 17 U.S.C. § 114. *Past Practices* . Sirius asserts that SoundExchange has acquiesced, by accepting royalty payments since 2004, in Sirius’ having a statutory license for preexisting subscription services. Sirius maintains that, if it did not qualify for that statutory license, it was not obligated to pay any royalties since there is no fee established for new subscription services that provide audio programming bundled with cable or satellite services. Sirius also points out that SoundExchange received adequate notice to object to Sirius’ eligibility prior to these proceedings because, in addition to receiving royalty payments, Sirius filed an Amended Notice of Use of Sound Recordings Under Statutory License, on May 18, 2004. **c. DMX** *Statutory Construction* . DMX argues in response that it is eligible for a statutory license for preexisting subscription services based on the plain language of the statute. It rejects SoundExchange’s “conflation of a service and the legal entity that operates it.” *DMX Memorandum of Law on Novel, Material Question of Substantive Law Concerning the Preexisting Subscription Service Compulsory License (“DMX Memorandum”* ), at 9. DMX points out that there are no requirements in the statute regarding ownership or restrictions on changes of control. DMX states that § 114(d)(2)(B) is drafted to identify specific services that were in existence and operating on July 31, 1998, not to identify particular business entities that control those services. DMX cites several principles of statutory construction in support of its argument that the terms “entity” and “entities” should be interpreted as having separate meanings from the terms “service” and “services” where they appear in the statutory text. To illustrate this point, DMX cites examples that include:
(a)§ 114(d)(2)(C)(iv) (“the transmitting entity does not knowingly perform the sound recording, as part of a service that offers ... or a particular product or service advertised by the transmitting entity”),
(b)§ 114(d)(2)(C)(ix) (“the transmitting entity identifies in textual data the sound recording during, but not before, the time it is performed, including the title ... in a manner to permit it to be displayed to the transmission recipient by the device or technology intended for receiving the service provided by the transmitting entity”),
(c)§ 114(h)(1) (“If the copyright owner of a sound recording licenses an affiliated entity the right to publicly perform a sound recording by means of a digital audio transmission under § 106(6), the copyright owner shall make [it] available ... to all bona fide entities that offer similar services”),
(d)§ 114(j)(6) (referring to transmissions made as “part of a service”) and
(e)§ 114(j)(7) (“If an entity offers both interactive and noninteractive services”). *Id.* at 8. In support of its interpretation that, if Congress had meant to limit the statutory license available under § 114(d)(2)(B) to specific business entities, rather than to subscription services, it could and would have drafted the statute accordingly. DMX cites well established principles of statutory construction in both its initial and reply briefs: SoundExchange’s proffered interpretation of Section 114 thus violates the fundamental precept of statutory construction that requires interpretation of each provision in a section in such a way as to produce a harmonious whole. *See, e.g., Hammontree v. NLRB* , 925 F.2d 1486, 1496 (D.C. Cir. 1991) (“Established and familiar principles of statutory construction favor this latter interpretation ... for courts are obligated to construe statutes harmoniously whenever possible.”) (citation omitted). [SoundExchange’s argument] also contravenes the equally fundamental interpretive principle that when a statute uses two different terms, Congress must have intended that two different meanings attach thereto. *See, e.g., American Portland Cement Alliance v. EPA,* 101 F.3d 772, 775 (D.C. Cir. 1996). DMX Memorandum, at 8-9. The Supreme Court repeatedly has rejected arguments such as the one advanced by SoundExchange here that different terms used in the same statute should be presumed to have the same meaning. *See, e.g., Sosa v. Alvarez-Machain* , 542 U.S. 692, 711 n. 9
(2004)(“[W]hen the legislature uses certain language in one part of the statute and different language in another, the court assumes different meanings were intended.”) (citation omitted); Russello v. United States, 464 U.S. 16, 23
(1983)(“We refrain from concluding here that the differing language in the two subsections has the same meaning in each. We would not presume to ascribe this difference to a simple mistake in draftsmanship.”). ... The distinct language used by Congress is presumed to have been purposeful and is to be accorded appropriate deference. *See, e.g., Barnhart v. Sigmon Coal Co.* , 534 U.S. 438, 452
(2002)(“[I]t is a general principle of statutory construction that when Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.”) (internal quotation omitted); *see also United States v. Labonte* , 520 U.S. 751, 757
(1997)(“We do not start from the premise that this language is imprecise. Instead, we assume that in drafting this legislation, Congress said what it meant.”) *DMX, Inc.’s Reply Memorandum of Law on Novel, Material Question of Substantive Law Concerning the Preexisting Subscription Service Compulsory License (“DMX Reply Brief”), at 4.* *Legislative History* . DMX argues that there is no need to rely on the legislative history when the plain meaning of the statute is clear on its face. It rejects SoundExchange’s interpretation of the legislative history, arguing instead for its own interpretation that, because the DMX subscription service is repeatedly named in the grandfathering provisions, it is the beneficiary of the exemption. DMX states that, like the statute, the legislative history treats a service as something offered or operated by an entity, rather than as a service being a particular business entity, citing H.R. Conf. Rep. No. 105-796, at 89. *Principle of Narrow Construction* . DMX rejects SoundExchange’s reliance on a Copyright Office interpretation of the compulsory copyright license for cable systems that involved a grandfathering issue. DMX states that, “Just as the grandfathering provision at issue in the cable compulsory license regulation applied to signals rather than to [cable] systems, the grandfathering provision at issue here applies to services, not to the companies that operate them.” *Id.* *Past Practices & Bankruptcy Proceedings* . DMX points out that SoundExchange did not object to the reorganized business entities that held a preexisting subscription service statutory license to operate as DMX until recently, after DMX went through bankruptcy proceedings. DMX argues that SoundExchange is now acting contrary to its own past practice of acquiescing to the repeated, historical changes in ownership of the DMX preexisting subscription service. DMX alleges that SoundExchange is challenging DMX’s right to a preexisting subscription service license to retaliate because the business currently controlling DMX did not take on the liability for royalty payments owed SoundExchange prior to the bankruptcy proceedings. DMX rejects SoundExchange’s contention that DMX is not eligible for the preexisting subscription service statutory license because DMX did not acquire a statutory license from the former DMX in the bankruptcy proceedings. DMX points out that the CRB previously recognized that its eligibility for that license derives directly from the Copyright Act, referencing *Procedural Regulations for the Copyright Royalty Board,* 70 Fed. Reg. 30,901 (May 31, 2005) (“Statutory licenses ... enable a person to use copyrighted materials unilaterally, without contractual permission of the owners of the materials; so long as the user complies with applicable reporting and royalty payment obligations, such uses are not infringements of the owners’ copyright.”). *Id.* at 10. DMX rebutted SoundExchange assertions that DMX is not eligible for the preexisting subscription service statutory license as a result of the bankruptcy proceedings. *Id.* at 9-11. *DMX Reply Brief* , at 7. III. Legal Analysis *Statutory Language.* Section 114 provides a statutory license to perform a sound recording publicly by means of a digital audio transmission. A major function of the language of § 114 is to identify the types of transmissions that fall within the scope of the license and the limitations on those transmissions, and to distinguish between the services that may utilize the license. To clarify the meaning of the terms used to identify these transmissions and the services, § 114 includes a number of definitions, including the definition for a “preexisting subscription service,” at § 114(j)(11). The definition of a preexisting service specifies that in order for a service to qualify as a preexisting subscription service, the service must have been in existence and making transmissions of noninteractive audio-only subscription digital audio transmissions to the public for a fee on or before July 31, 1998. The current controversy surrounding the definition of a “preexisting subscription service” hinges on whether the service is a business entity which was offering music on a subscription basis on or before July 31, 1998, or whether the term merely refers to the use being made of the sound recordings during this time period. DMX maintains that the term “service,” as used throughout § 114, does not extend to the business entity operating the preexisting subscription service but rather is a reference to the use of the music offered by DMX on or before July, 31,1998. Sirius takes a similar position, maintaining that the service, not the business entity, must have been in existence and operating at that time. SoundExchange, on the other hand, infers that the term “service” must refer to a specific business entity operating a digital music service because a service defined only by its use of sound recordings could not satisfy the requirement that the service was making transmissions on or before July 31, 1998. In disputing SoundExchange’s interpretation, DMX examines other provisions in § 114 to determine how these terms are used, citing, for example, § § 114(d)(2)(C)(iv) and (d)(2)(C)(ix), which uses the terms “transmitting entity” and “service” in the same paragraph. It also notes that the statute makes clear that an entity can offer more than one type of service, citing to the definition of an “interactive service,”at § 114(j)(7) (noting that an entity can offer both an interactive and a noninteractive service) and to the section on licensing to affiliates at § 114(h). DMX maintains that under the rules of statutory construction use of these words in the same paragraph would necessarily mean that they are not one and the same. However, § 114 is not a model of clarity or consistency and it is instructive to look closer at the use of the terms and examine further usages in § 114. For example, § 114(d)(2)(c) discusses the limitations on the transmissions made by two types of services, a new subscription service and a preexisting subscription service using a new medium for transmissions. In describing these limitations, the statute arguably uses the term “transmitting entity” as a generic term applicable to both types of services when discussing what these services cannot do when making the transmissions. But this interpretation is tenuous, especially in light of § 114(d)(2)(C)(iv), without further support in the statute of the dual nature of the term “service.” A more compelling argument for an interpretation that “service” means the “business entity” making the subscription transmissions can be made based upon an analysis of the sections that set forth the procedures for establishing rates and terms for the subscription transmissions. Section 114(e) specifically authorizes copyright owners of sound recordings and the entities performing the sound recordings to negotiate the rates and terms for use of the sound recordings under § 114. Again, use of the term “entity” appears to be used to encompass all entities that may operate under the statutory license and as DMX points out there is nothing in this section that would equate an “entity” with a “service.” However, § 114(e) must be read in conjunction with § § 114(f)(1) and (2), where it is necessary to distinguish among the “entities” for purposes of setting rates and terms because different standards are used to set rates for different “services.” Section 114(f)(1) sets forth the procedures for setting rates and terms for the preexisting subscription services and preexisting satellite digital audio radio services. It provides a negotiation period to allow the copyright owners of the sound recordings and the licensees to reach an agreement on the rates and terms rather than engage in a more formal hearing process. Moreover, it specifically names in the last sentence of this section the preexisting services and the preexisting satellite digital audio radio services as the entities authorized under § 114(e) to participate in this process. It reads as follows: “Any copyright owners of sound recordings, preexisting subscription services, or preexisting satellite digital audio radio services may submit to the Copyright Royalty Judges licenses covering such subscription transmissions with respect to such sound recordings.” The identification of the preexisting subscription services as entities authorized to engage in the negotiations of the rates for the transmissions made by these services supports an interpretation in this context that the use of the term preexisting subscription service refers to the business entity that operates under the license and pays the royalty fees for the transmissions it makes. Section 114(c)(3) also supports the interpretation. It discusses the circumstances under which an interactive service shall be granted an exclusive license for the public performance of a sound recording by means of a digital audio transmission. If the term “interactive service” as used in this context was limited only to the use of the sound recordings in such a way as to deliver the work on request to a recipient, then the sentence would have no meaning, since it is a business entity and not the service itself that must secure the license in order to offer the service. At the end of this analysis, we recognize that both DMX and Sound Exchange offer plausible interpretations of the term “preexisting subscription service,” and each finds support to some extent for its interpretation in the statutory language. Since a clear meaning for the term “preexisting subscription service” cannot be discerned by analyzing the use of the term in the statute, it is necessary to turn to the legislative history to inform the decision. *Legislative History.* The legislative history is pertinent because it specifically identifies the entities upon which Congress confers the status, and because it explains the rationale for making this distinction among the services. As previously quoted, the Conference Report identifies DMX (operated by TCI Music), Music Choice (operated by Digital Cable Radio Associates and the DiSH Network (operated by Muzak), as the only three preexisting subscription services. Conf. Report at 81. While this information is helpful, it goes no farther than to name the entities that were in existence and making transmissions on or before July 31, 1998. A more fruitful line of inquiry focuses on the reason why Congress chose to grandfather these three services as preexisting subscription services. On this point, the conference report states that: In grandfathering these services, the conferees’ [sic] objective was to limit the grandfather to their existing services in the same transmission medium and to any new services in a new transmission medium where only transmissions similar to their existing service are provided. *Id.* at 89. While it would appear from this excerpt that Congress’s purpose in grandfathering these services was to preserve a particular program offering, it was not its only purpose or even necessarily its major goal. The Conference Report also makes clear that Congress distinguished between preexisting subscription services and new subscription services as a way to prevent disruption of the existing operations of the services that were in existence and operating before July 31, 1998. *Id.* at 81. It understood that the entities so designated as preexisting had invested a great deal of resources into developing their services under the terms established in 1995 as part of the Digital Performance Right in Sound Recording Act of 1995, and that those services deserved to develop their businesses accordingly. While DMX and Sirius would like to interpret the reference to “existing operations” as meaning only the offerings made by these named services before the cut-off date, the legislative history does not support that interpretation when these statements are read in context with the explanations for why Congress also grandfathered two other entities as preexisting satellite digital audio services, identified as CD Radio and American Mobile Radio Corporation. First, the legislative history makes it clear that the two named preexisting satellite digital audio services are the business entities that purchased the FCC licenses to develop the satellite systems which they used to offer their subscription services. And second, the existing operations that Congress meant to protect included the development of the satellite systems over which these services were to operate and not just the day-to-day operations involved in making the music available to the subscriber. Had Congress been interested in only protecting the use of the music, then it would have not expressed its concerns about disrupting business plans to build facilities over which these services were to be offered. 11 11 *See Determination of Reasonable Rates and Terms for the Digital Performance of Sound Recordings* , 63 Fed. Reg. 25,394 (May 8, 1998). In that proceeding, the CARP ultimately concluded that, at that time in the development of those types of services, it set a low rate favoring the license holders “because a rate set toward the high end would thwart the statutory objectives under current market conditions.” In construing the statutory language together with the legislative history, the logical conclusion is that Congress did use the term “service” to mean both the program offerings made on a subscription basis to the public and the business entity that secures the license to make the subscription transmissions. Although DMX contends that it would be difficult to determine whether a specific use of the term “preexisting subscription service” relates to the business entity or the use of the sound recordings by that entity, DMX Reply Brief at 6, that is not a reason to reject the conclusion. While usage of the term “preexisting subscription service” is ambiguous in some instances, its use to identify who receives the benefits of the designation and has the authority to operate under the statutory license and enter into negotiations to set rates and terms can only be read as referring to the business entity identified as the preexisting subscription service. To do otherwise would be to create confusion as to what entity had the right to participate in the rate setting process. Moreover, this approach closely adheres to the principles that support the adoption of a grandfather provision as explained more fully below. *Principle of Narrow Construction* . Grandfathering provisions are frequently included in statutes to ensure continuity and to reward the investment and efforts of those who were the first to take on the struggles and risks of novel enterprises or methods. Moreover, as was stated in the arguments, it is a well established canon of statutory interpretation that grandfather provisions are to be narrowly interpreted *See United States v. Allan Drug Corporation* , 357 F.2d 713 (10th Cir. 1966) (noting that grandfather clause exemption must be construed strictly against one who invokes it). Thus, based upon these principles of statutory construction and the explanations offered in the legislative history for the adoption of the grandfathered services, the better reading of the statute is that the preexisting services must be limited to the three named entities in the Conference Report, *i.e.* , DMX (operated by TCI Music), Music Choice (operated by Digital Cable Radio Associates), and the DiSH Network (operated by Muzak) that were in existence and making transmissions of sound recordings by means of noninteractive audio-only subscription digital transmissions on or before July 31, 1998. The question remains, however, whether the designation applies to the type of offerings made by the service or the business entity operating at the relevant time. As discussed previously, we conclude that the beneficiary of the grandfather provision should be the business entity that was providing the service at the time. While there is a debate among the parties as to whether DMX today is the same business entity as it was in 1998, the Office declines to reach this question because it would involve the interpretation of facts that go beyond the scope of this inquiry. On the other hand, it is appropriate for the Office to consider whether for purposes of § 114 Sirius can provide the same type of music service that Muzak offered in 1998 through DiSH Network. The answer to this inquiry hinges on the status of DiSH Network and whether it or the music service content provider offered over its network is the beneficiary of the grandfather provision. On this point, Sirius concedes that DiSH Network is a satellite television service which, in 1998, sought out a music service provider to supply the audio music channels. It also notes that the § 114 statutory license covers only audio services and that the royalty fees are calculated based on the revenues associated with the provision of the sound recordings and not the revenues generated by DiSH Network. We also note that DiSH Network is the apparent beneficiary of the exemption in § 114(d)(1)(C)(iii) which allows a direct broadcast satellite service provider to retransmit to the listener noninteractive music programming provided by a licensed source. Yet in spite of these facts, Sirius maintains that DiSH Network is the preexisting subscription service because it was specifically named in the legislative history, or alternatively, that Sirius itself is the beneficiary of the designation as a preexisting service through DiSH, because it is the provider of music services over the DiSH Network. While it is clear that DiSH is identified in the legislative history as the preexisting service, often without any reference to Muzak as the provider of the audio channels carried over the DiSH network, the DiSH Network standing alone cannot be viewed as the preexisting service, nor does it have a need to be designated as such because of the exemption it enjoys under § 114(d)(1)(C)(iii). Section 114 involves the licensing of the public performance right to make digital transmissions of sound recordings. In 1998, the service making these transmissions over the DiSH Network was Muzak. Thus, it was Muzak that made the transmissions under the § 114 statutory license and it was Muzak that incurred the obligation to pay the royalties. Because DiSH itself did not operate under the § 114 statutory license, it makes no sense for it alone to be considered the preexisting service. Thus, the reference to DiSH Network in the legislative history is best interpreted as including the actual music service that did offer subscription transmissions of sound recordings over the DiSH Network at that time, *i.e.* , Muzak. Moreover, to allow Sirius to step into the shoes of Muzak and offer the same type of subscription transmissions is inconsistent with a narrow construction of the grandfather provision. As stated earlier, the purpose of the grandfather provision was to prevent the disruption of existing operations which, in this case, was the offering of music channels supplied by Muzak. Muzak was the pioneer music service that incurred both the benefits and risks that came with its investment, and one such benefit was its status as a preexisting subscription service so long as it provided its music offerings over the DiSH Network. Sirius, however, cannot assume the benefits of the preexisting subscription service designation when it did not offer a subscription service during the industry’s nascent years. *Third Party Transfer of Statutory Licenses* . SoundExchange’s arguments that Sirius and DMX are not entitled to assume the benefits of the statutory licenses held by Muzak and the previous business entity known as DMX is based, in part, on its theory that those previous business entities were barred from transferring their licenses due to restrictions similar to those against the transferability of non-exclusive copyright licenses. In support, SoundExchange cites *Harris v. Emus Records Corp* ., 734 F.2d 1329, 1333 (9th Cir. 1984). That authority is not persuasive on this point because the U.S. Court of Appeals for the Ninth Circuit stated that it did not reach the issue of whether the license at issue was compulsory. *Id.* at 1333. Statutory licenses are freely available to all potential users without consent from copyright owners or other licensees, provided that the user adheres to the regulations governing the statutory license, including all reporting requirements and royalty payment obligations. *Past Practices and Bankruptcy* . Issues relating to whether the parties had sufficient notice to be deemed to have acquiesced in matters now being challenged are beyond the question referred and are for the CRB’s determination. The same is true with regard to the impact that bankruptcy proceedings may have on the outcome of its proceedings. *Conclusion* . The Copyright Royalty Board referred a novel question of law to the Register which asked: “Is the universe of preexisting subscription services, [as defined by § 114(j)(11)], limited by law to only Muzak (provided over the DiSH Network), Music Choice, and DMX?” Before answering this question, the Office contemplated what Congress meant by the term “preexisting subscription service,” because there was a controversy over whether the term applied to the use of the sound recording, or the business entity that operated under the § 114 statutory license. Ultimately, the Office discerned that the term is used in the statute in both manners. A preexisting subscription service is used in § 114 sometimes to refer to the aggregate of the subscription transmissions that were made by the entities identified in the legislative history, and sometimes to identify the business entities operating under the statutory license on or before July 31, 1998, and that have the authority to negotiate rates and terms for use of the license. Whether Congress intended this outcome is unclear, but the Office’s interpretation offers a workable reading of the statute and the legislative intent. Nevertheless, for purposes of the question posed by the Board, the determination that the term refers to the business entities in existence and making subscription transmissions on or before July 31,1998, appears to be the more appropriate reading of the term “preexisting subscription service” for purposes of determining whether an entity can operate under the statutory license as a preexisting subscription service and participate in the rate setting process. Moreover, in light of Congress’s decision to identify specific entities as being preexisting subscription services, it appears Congress meant to limit preexisting subscription service status to the three entities identified by the Board. October 20, 2006. Marybeth Peters, Register of Copyrights [FR Doc. E6-18590 Filed 11-2-06; 8:45 am] BILLING CODE 1410-30-S POSTAL SERVICE 39 CFR Part 3 Amendment to Bylaws of the Board of Governors AGENCY: Postal Service. ACTION: Final rule. SUMMARY: On September 11, 2006, the Board of Governors of the United States Postal Service adopted a revision to its bylaws. The purpose of this revision was to enable Postal Service management to submit relatively minor Negotiated Service Agreements
(NSAs)to the Postal Rate Commission for consideration without first submitting those minor NSAs to the Postal Service Board of Governors. Consequently, the Postal Service hereby publishes this final rule. DATES: *Effective Date:* September 11, 2006. FOR FURTHER INFORMATION CONTACT: Wendy A. Hocking, Secretary of the Board, U.S. Postal Service, 475 L'Enfant Plaza, SW., Washington, DC 20260-1000,
(202)268-4800. SUPPLEMENTARY INFORMATION: This document publishes a revision to 39 CFR 3.3 of the Bylaws of the Board of Governors of the United States Postal Service. The Board's bylaws in paragraphs
(f)and
(g)of § 3.3 had reserved to the full Board the authorization for filing any request to the Postal Rate Commission for a recommended decision on changes in rates or mail classification. The Board revised paragraphs
(f)and
(g)of § 3.3 to provide that the Postmaster General may authorize the filing of a request to the Postal Rate Commission for minor NSAs without first submitting the request to the Postal Service Board of Governors. The changes were adopted by the Board on September 11, 2006. The purpose of the changes was to enable Postal Service management to submit relatively minor NSAs to the Postal Rate Commission without first coming to the Board for approval. This exception would apply only for submissions under the Commission's rules for streamlined consideration of requests to renew an existing NSA or to add one that is “functionally equivalent” to an existing NSA. Proposals for new baseline NSAs would still require Board approval in advance. At the end of the process, when the Commission completes its proceedings and submits a recommended decision, final consideration by the Governors is required in all cases by statute. List of Subjects in 39 CFR Part 3 Administrative practice and procedure, Organization and functions (Government agencies), Postal Service. Accordingly, part 3 of title 39 CFR is amended as follows: PART 3—BOARD OF GOVERNORS (ARTICLE 111) 1. The authority citation for part three continues to read as follows: Authority: 39 U.S.C. 202, 203, 205, 401(2), (10), 402, 414, 416, 1003, 2802-2804, 3013; 5 U.S.C. 552b (g), (j); Inspector General Act, 5 U.S.C. app.; Pub.L. 107-67, 115 Stat.514 (2001). 2. Section 3.3 is amended by revising paragraphs
(f)and
(g)to read as follows: § 3.3 Matters reserved for decision by the Board.
(f)Authorization of the Postal Service to request the Postal Rate Commission to submit a recommended decision on changes in postal rates, except that the Postmaster General may authorize such requests with respect to Negotiated Service Agreements filed for consideration under 39 CFR 3001.196 or 3001.197.
(g)Authorization of the Postal Service to request the Postal Rate Commission to submit a recommended decision on changes in the mail classification schedule, except that the Postmaster General may authorize such requests with respect to Negotiated Service Agreements filed for consideration under 39 CFR 3001.196 or 3001.197. Neva Watson, Attorney, Legislative, Legal Policy and Ratemaking. [FR Doc. E6-18545 Filed 11-1-06; 8:45 am] BILLING CODE 7710-12-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R03-OAR-2006-0629; FRL-8238-9] Approval and Promulgation of Air Quality Implementation Plans; Maryland; Nitrogen Oxides Allowance Allocations for 2008 AGENCY: Environmental Protection Agency (EPA). ACTION: Direct final rule. SUMMARY: EPA is taking direct final action to approve a revision to the Maryland State Implementation Plan (SIP). The revision consists of the Nitrogen Oxides (NO <sup>X</sup> ) allowance allocations for the 2008 ozone season, in accordance with Maryland's approved NO <sup>X</sup> SIP Call trading program. EPA is approving this revision to Maryland's NO <sup>X</sup> Reduction and Trading Program in accordance with the requirements of the Clean Air Act. DATES: This rule is effective on January 2, 2007 without further notice, unless EPA receives adverse written comment by December 4, 2006. If EPA receives such comments, it will publish a timely withdrawal of the direct final rule in the **Federal Register** and inform the public that the rule will not take effect. ADDRESSES: Submit your comments, identified by Docket ID Number EPA-R03-OAR-2006-0629 by one of the following methods: A. *www.regulations.gov.* Follow the on-line instructions for submitting comments. B. *E-mail:* *morris.makeba@epa.gov* C. *Mail:* EPA-R03-OAR-2006-0629, Makeba Morris, Chief, Air Quality Planning Branch, Mailcode 3AP21, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103. D. *Hand Delivery:* At the previously-listed EPA Region III address. Such deliveries are only accepted during the Docket's normal hours of operation, and special arrangements should be made for deliveries of boxed information. *Instructions:* Direct your comments to Docket ID No. EPA-R03-OAR-2006-0629. EPA's policy is that all comments received will be included in the public docket without change, and may be made available online at *www.regulations.gov,* including any personal information provided, unless the comment includes information claimed to be Confidential Business Information
(CBI)or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through *www.regulations.gov* or e-mail. The *www.regulations.gov* Web site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going through *www.regulations.gov,* your e-mail address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. *Docket:* All documents in the electronic docket are listed in the *www.regulations.gov index* . Although listed in the index, some information is not publicly available, i.e., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically in *www.regulations.gov* or in hard copy during normal business hours at the Air Protection Division, U.S. Environmental Protection Agency, Region III, and 1650 Arch Street, Philadelphia, Pennsylvania 19103. Copies of the State submittal are available at the Maryland Department of the Environment, 1800 Washington Boulevard, Suite 705, Baltimore, Maryland 21230. FOR FURTHER INFORMATION CONTACT: Marilyn Powers
(215)814-2308, or by e-mail at *powers.marilyn@epa.gov.* SUPPLEMENTARY INFORMATION: I. Background On June 21, 2006, the State of Maryland submitted a formal revision to its State Implementation Plan (SIP). Maryland's NO <sup>X</sup> Reduction and Trading Program under COMAR 26.11.29 and 26.11.30 was approved by EPA as meeting the requirements of the NO <sup>X</sup> SIP Call on January 10, 2001 (66 FR 1866). The approved program contains NO <sup>X</sup> reduction requirements beginning on May 1, 2003 and establishes allowance allocations for affected trading sources for the 2003 through 2005 ozone seasons. Thereafter, Maryland's approved rule requires that allocations be updated, three years in advance, for each subsequent two year period. The allocations for 2006 and 2007 were approved into Maryland's SIP on March 22, 2004 (55 FR 13236). This SIP revision consists of Maryland's allocation update for 2008. Allocations for 2009 are not included in this SIP revision to ensure that Maryland's NO <sup>X</sup> Reduction and Trading program does not conflict with Clean Air Interstate Rule (70 FR 25162 of May 12, 2005) requirements that will apply to electric generating units
(EGUs)greater than 25 MW starting in 2009. II. Summary of SIP Revision The revision consists of allocations for the ozone season in 2008 for each of the affected sources for which allocations were provided in the initial control period (2003 through 2005 ozone seasons). The allocations for EGUs were derived using each source's average actual heat input from the 2002 and 2003 ozone seasons multiplied by an emission rate of 0.15 pounds NO <sup>X</sup> /MMBTU. The allocations for non-electric generating units (non-EGUs) are unchanged from the initial control period. For most sources the 2008 allocations do not differ significantly from the initial 3-year allocations. The total number of 2008 allocations established for the sources in Maryland that are subject to its NO <sup>X</sup> Budget Trading Program are consistent with the State's budget under the NO <sup>X</sup> SIP Call. III. Final Action EPA is approving the SIP revision submitted by MDE on June 21, 2006 consisting of NO <sup>X</sup> allowance allocations for the 2008 ozone season. . EPA is publishing this rule without prior proposal because the Agency views this as a noncontroversial amendment and anticipates no adverse comment. However, in the “Proposed Rules” section of today's **Federal Register** , 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 on January 2, 2007 without further notice unless EPA receives adverse comment by December 4, 2006. If EPA receives adverse comment, 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. EPA will not institute a second comment period on this action. Any parties interested in commenting must do so at this time. IV. Statutory and Executive Order Reviews A. General Requirements 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 (Public Law 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 requirement, 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.* ). B. Submission to Congress and the Comptroller General 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** . This rule is not a “major rule” as defined by 5 U.S.C. 804(2). C. Petitions for Judicial Review 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 to approve Maryland's NO <sup>X</sup> SIP Call allocations for 2008 may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).) List of Subjects in 40 CFR Parts 52 Environmental protection, Air pollution control, Nitrogen dioxide, Ozone. Dated: October 26, 2006. Donald S. Welsh, Regional Administrator, Region III. 40 CFR part 52 is amended 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 V—Maryland 2. In § 52.1070, the table in paragraph
(c)is amended by revising the entry for COMAR 26.11.30.09 to read as follows: § 52.1070 Identification of plan.
(c)* * * EPA-Approved Regulations in the Maryland SIP Code of Maryland administrative regulations (COMAR) citation Title/subject State effective date EPA approval date Additional explanation/ citation at 40 CFR 52.1100 * * * * * * * COMAR 26.11.30 Policies and Procedures Relating to Maryland's NO <sup>X</sup> Reduction and Trading Program * * * * * * * COMAR 26.11.30.09 Allocation of Allowances 6/19/06 November 3, 2006 [Insert page number where the document begins] New column for 2008 allocations * * * * * * * [FR Doc. E6-18501 Filed 11-2-06; 8:45 am] BILLING CODE 6560-50-P 71 213 Friday, November 3, 2006 Proposed Rules DEPARTMENT OF AGRICULTURE Animal and Plant Health Inspection Service 9 CFR Parts 55 and 81 [Docket No. 00-108-5] RIN 0579-AB35 Chronic Wasting Disease Herd Certification Program and Interstate Movement of Farmed or Captive Deer, Elk, and Moose; Petitions and Request for Comments AGENCY: Animal and Plant Health Inspection Service, USDA. ACTION: Notice of receipt of petitions and request for comments. SUMMARY: We are advising the public that the Animal and Plant Health Inspection Service has received three petitions requesting that we delay implementation of, and reconsider provisions in, a recent final rule establishing a herd certification program and interstate movement restrictions for cervids to control the spread of chronic wasting disease. We are soliciting public comments on the petitions and the potential impacts of the actions they recommend. DATES: We will consider all comments that we receive on or before December 4, 2006. FOR FURTHER INFORMATION CONTACT: Dr. Dean E. Goeldner, Senior Staff Veterinarian, Ruminant Health Programs, VS, APHIS, 4700 River Road, Unit 43, Riverdale, MD 20737-1231;
(301)734-4916. Copies of the petitions are available at the Federal eRulemaking Portal, *http://www.regulations.gov,* as described under ADDRESSES below. ADDRESSES: You may submit comments by either of the following methods: • *Federal eRulemaking Portal:* Go to *http://www.regulations.gov,* select “Animal and Plant Health Inspection Service” from the agency drop-down menu, then click “Submit.” In the Docket ID column, select APHIS-2006-0118 to submit or view public comments and to view supporting and related materials available electronically. Information on using Regulations.gov, including instructions for accessing documents, submitting comments, and viewing the docket after the close of the comment period, is available through the site's “User Tips” link. • *Postal Mail/Commercial Delivery:* Please send four copies of your comment (an original and three copies) to Docket No. 00-108-5, Regulatory Analysis and Development, PPD, APHIS, Station 3A-03.8, 4700 River Road, Unit 118, Riverdale, MD 20737-1238. Please state that your comment refers to Docket No. 00-108-5. *Reading Room:* You may read any comments that we receive on this docket in our reading room. The reading room is located in room 1141 of the USDA South Building, 14th Street and Independence Avenue, SW., Washington, DC. Normal reading room hours are 8 a.m. to 4:30 p.m., Monday through Friday, except holidays. To be sure someone is there to help you, please call
(202)690-2817 before coming. *Other Information:* Additional information about APHIS and its programs is available on the Internet at *http://www.aphis.usda.gov.* SUPPLEMENTARY INFORMATION: In accordance with the Animal Health Protection Act (7 U.S.C. 8301 *et seq.* ), the Secretary of Agriculture has the authority to issue orders and promulgate regulations to prevent the introduction into the United States and the dissemination within the United States of any pest or disease of livestock, and to pay claims growing out of the destruction of animals. The Animal and Plant Health Inspection Service's (APHIS') regulations in 9 CFR subchapter B govern cooperative programs to control and eradicate communicable diseases of livestock. On July 21, 2006, we published a final rule in the **Federal Register** (71 FR 41682-41707, Docket No. 00-108-3) amending 9 CFR subchapter B by establishing regulations in part 55 for a Chronic Wasting Disease Herd Certification Program to help eliminate chronic wasting disease
(CWD)from the farmed or captive cervid herds in the United States (the CWD rule). Under that rule, owners of deer, elk, and moose herds who choose to participate would have to follow program requirements for animal identification, testing, herd management, and movement of animals into and from herds. We also amended 9 CFR subchapter B by establishing a new part 81 containing interstate movement requirements to prevent the spread of CWD. We recently received three petitions requesting a delay in the effective date of the CWD rule and reconsideration of several requirements of the rule. We are currently evaluating the merits of these petitions, and through this notice, we are making the petitions available for public review and requesting comments on them. On September 8, 2006, we also published a notice in the **Federal Register** delaying the effective date of the CWD rule until further notice (71 FR 52983, Docket No. 00-108-4). On August 3, 2006, we received a petition from the Association of Fish and Wildlife Agencies. On August 4, 2006, we received a petition from the National Assembly of State Animal Health Officials, and on August 8, 2006, we received a petition from the United States Animal Health Association. The texts of all three petitions are available on the Federal eRulemaking Portal, as described under ADDRESSES . The primary issues addressed by all three petitions are the Federal preemption of State laws and regulations and the requirements our CWD rule established for the interstate movement of cervids. Under the CWD rule, during its first year of implementation, cervids could move interstate if they have been in an approved CWD Herd Certification program, and thus subject to monitoring for CWD and other requirements, for at least 1 year. The CWD rule increases this length-of-time requirement in succeeding years of implementation, so the time animals must be in a herd certification program in order to move interstate gradually increases to 2 years, then 3, then 4, then 5 years. It was the intent of the CWD rule to provide a consistent, nationwide standard for the interstate movement of cervids, replacing a variety of differing State standards. Existing State laws and regulations addressing movement of cervids vary in the amount of time that the animals must have been in a certification program prior to entry, and some States do not allow the entry of any cervids. The gradual escalation of the Federal standard in the CWD rule to 5 years was intended to achieve the desired level of risk control represented by 5 years of program participation and disease-free surveillance and monitoring, but to do so in a gradual manner that would not cause widespread economic harm to producers by making it impossible for some of them to move animals interstate until 5 years after they join the CWD Herd Certification Program. The petitioners raised two points with regard to this Federal standard for interstate movement. First, they cited it as an unexpected and unnecessary Federal preemption of existing State standards. They stated that during development of the CWD proposed rule they believed that any Federal interstate movement requirement would serve as a minimum standard, and would apply only if States did not set their own standards for length-of-time. Second, the petitioners questioned whether the Federal standard provided adequate protection, especially during the first 2 years of program implementation. The petitioners suggested that sound science and the known epidemiology of CWD require that animals be monitored for CWD for more than 1 or 2 years before they can be considered safe to move interstate. The public is invited to comment on any of the issues raised by the petitions. To aid our evaluation of these issues, we particularly invite comments in the following areas. • Consider the alternatives of implementing a Federal interstate movement standard versus allowing individual State standards to apply. What hardships or benefits would each alternative impose? Please provide details where possible. • With respect to the spread of CWD, in addition to the requirements established by the APHIS CWD rule, what additional safeguards do States need to mitigate or reduce risk of disease transmission, and why are they needed? • What practical or operational problems may be expected from the final rule and from the alternatives suggested by the petitions? How could they be alleviated? • Are there any alternatives that could address the petitioners' concerns, other than allowing the movement requirements of individual States to take precedence over the Federal standard? After evaluating the petitions and any public comments received in response to this document, APHIS will publish a document in the **Federal Register** announcing what action, if any, we will take in response to the petitions. Authority: 7 U.S.C. 8301-8317; 7 CFR 2.22, 2.80, and 371.4. Done in Washington, DC, this 31st day of October 2006. Kevin Shea, Acting Administrator, Animal and Plant Health Inspection Service. [FR Doc. E6-18564 Filed 11-2-06; 8:45 am] BILLING CODE 3410-34-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2006-26241; Directorate Identifier 2006-NM-155-AD] RIN 2120-AA64 Airworthiness Directives; Bombardier Model DHC-8-400 Series Airplanes AGENCY: Federal Aviation Administration (FAA), Department of Transportation (DOT). ACTION: Notice of proposed rulemaking (NPRM). SUMMARY: The FAA proposes to adopt a new airworthiness directive
(AD)for certain Bombardier Model DHC-8-400 series airplanes. This proposed AD would require inspecting to determine the manufacturer's date of certain V-band clamps on the engine exhaust shroud assembly, and doing related investigative/corrective actions if necessary. This proposed AD results from a report of a discrepancy found during a maintenance inspection on a V-band clamp located on the engine exhaust duct shroud. The clamp ends were touching (although the correct fastener torque had been applied), resulting in reduced clamp force on the flanges. We are proposing this AD to prevent vibration in the duct shroud and fretting of the V-band clamp and flanges, which could result in cracking of the flanges and consequent release of hot exhaust gases from the engine tailpipe and damage to adjacent structure. This situation could trigger the fire warning system and result in an in-flight emergency, such as the flightcrew shutting down the engine and activating the fire suppression system. DATES: We must receive comments on this proposed AD by December 4, 2006. ADDRESSES: Use one of the following addresses to submit comments on this proposed AD. • *DOT Docket Web site:* Go to http://dms.dot.gov and follow the instructions for sending your comments electronically. • *Government-wide rulemaking Web site:* Go to *http://www.regulations.gov* and follow the instructions for sending your comments electronically. • *Mail:* Docket Management Facility, U.S. Department of Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401, Washington, DC 20590. • *Fax:*
(202)493-2251. • *Hand Delivery:* Room PL-401 on the plaza level of the Nassif Building, 400 Seventh Street, SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. Contact Bombardier, Inc., Bombardier Regional Aircraft Division, 123 Garratt Boulevard, Downsview, Ontario M3K 1Y5, Canada, for service information identified in this proposed AD. FOR FURTHER INFORMATION CONTACT: Richard Fiesel, Aerospace Engineer, Airframe and Propulsion Branch, ANE-171, FAA, New York Aircraft Certification Office, 1600 Stewart Avenue, Suite 410, Westbury, New York 11590; telephone
(516)228-7304; fax
(516)794-5531. SUPPLEMENTARY INFORMATION: Comments Invited We invite you to submit any relevant written data, views, or arguments regarding this proposed AD. Send your comments to an address listed in the ADDRESSES section. Include the docket number “FAA-2006-26241; Directorate Identifier 2006-NM-155-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of the proposed AD. We will consider all comments received by the closing date and may amend the proposed AD in light of those comments. We will post all comments we receive, without change, to *http://dms.dot.gov* , including any personal information you provide. We will also post a report summarizing each substantive verbal contact with FAA personnel concerning this proposed AD. Using the search function of that Web site, anyone can find and read the comments in any of our dockets, including the name of the individual who sent the comment (or signed the comment on behalf of an association, business, labor union, etc.). You may review the DOT's complete Privacy Act Statement in the **Federal Register** published on April 11, 2000 (65 FR 19477-78), or you may visit *http://dms.dot.gov.* Examining the Docket You may examine the AD docket on the Internet at *http://dms.dot.gov* , or in person at the Docket Management Facility office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The Docket Management Facility office (telephone
(800)647-5227) is located on the plaza level of the Nassif Building at the DOT street address stated in the ADDRESSES section. Comments will be available in the AD docket shortly after the Docket Management System receives them. Discussion Transport Canada Civil Aviation (TCCA), which is the airworthiness authority for Canada, notified us that an unsafe condition may exist on certain Bombardier Model DHC-8-400 series airplanes. TCCA advises of a report of a discrepancy found during a maintenance inspection on a V-band clamp located on the engine exhaust duct shroud. The clamp ends were touching (although the correct fastener torque had been applied), resulting in reduced clamp force on the flanges. Investigation revealed that a batch of V-band clamps were not manufactured to the drawing specifications. These clamps may cause vibration and fretting of the V-band clamp flanges to occur, leading to flange cracking and local area overheating. These conditions, if not corrected, could result in cracking of the flanges and consequent release of hot exhaust gases from the engine tailpipe and damage to adjacent structure. This situation could trigger the fire warning system and result in an in-flight emergency, such as the flightcrew shutting down the engine and activating the fire suppression system. Relevant Service Information Bombardier has issued Service Bulletin 84-78-01, Revision ‘A,’ dated September 15, 2005. The service bulletin describes procedures for inspecting to determine the manufacturer's date of certain V-band clamps on the engine exhaust shroud assembly, and doing related investigative and corrective actions if necessary. The related investigative action is measuring the gap between the clamp loops at the T-bolt and trunnion. The related corrective actions are as follows: • If both clamp loops touch when the clamp is tightened to the specified torque value: Replace the V-band clamp with a serviceable clamp. • If the gap between the clamp loops is less than 0.050 inch when the clamp is tightened to the specified torque value: Replace the V-band clamp on or before the next C-check. The corrective actions also include inspecting the flange of the shroud assemblies for any of the following discrepancies: • Indication(s) of exhaust gas leakage. • Damage to surrounding structure or adjacent assemblies as a result of gas leakage. • Indication(s) of chafing, fretting, or cracking at the flanges of the related shrouds. Accomplishing the actions specified in the service information is intended to adequately address the unsafe condition. TCCA mandated the service information and issued Canadian airworthiness directive CF-2006-06, dated April 4, 2006, to ensure the continued airworthiness of these airplanes in Canada. FAA's Determination and Requirements of the Proposed AD These airplane models are manufactured in Canada and are type certificated for operation in the United States under the provisions of section 21.29 of the Federal Aviation Regulations (14 CFR 21.29) and the applicable bilateral airworthiness agreement. Pursuant to this bilateral airworthiness agreement, TCCA has kept the FAA informed of the situation described above. We have examined TCCA's findings, evaluated all pertinent information, and determined that we need to issue an AD for airplanes of this type design that are certificated for operation in the United States. Therefore, we are proposing this AD, which would require accomplishing the actions specified in the service information described previously, except as discussed under “Differences Between the Proposed AD and Service Information.” Differences Between the Proposed AD and Service Information The service bulletin specifies to contact the manufacturer for instructions on how to repair certain conditions, but this proposed AD would require repairing those conditions using a method that we or TCCA (or its delegated agent) approve. In light of the type of repair that would be required to address the unsafe condition, and consistent with existing bilateral airworthiness agreements, we have determined that, for this proposed AD, a repair we or TCCA approve would be acceptable for compliance with this proposed AD. The service bulletin specifies replacing the V-band clamp “on or before the next C-check” as part of the corrective actions. This proposed AD would require doing all corrective actions before further flight. Costs of Compliance This proposed AD would affect about 21 airplanes of U.S. registry. The proposed actions would take about 3 work hours per airplane, at an average labor rate of $80 per work hour. Required parts cost would be minimal. Based on these figures, the estimated cost of the proposed AD for U.S. operators is $5,040, or $240 per airplane. Authority for This Rulemaking Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority. We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action. Regulatory Findings We have determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. For the reasons discussed above, I certify that the proposed regulation: 1. Is not a “significant regulatory action” under Executive Order 12866; 2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and 3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket. See the ADDRESSES section for a location to examine the regulatory evaluation. List of Subjects in 14 CFR Part 39 Air transportation, Aircraft, Aviation safety, Safety. The Proposed Amendment Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows: PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority: 49 U.S.C. 106(g), 40113, 44701. § 39.13 [Amended] 2. The Federal Aviation Administration
(FAA)amends § 39.13 by adding the following new airworthiness directive (AD): **Bombardier, Inc. (Formerly de Havilland, Inc.):** Docket No. FAA-2006-26241; Directorate Identifier 2006-NM-155-AD. Comments Due Date
(a)The FAA must receive comments on this AD action by December 4, 2006. Affected ADs
(b)None. Applicability
(c)This AD applies to Bombardier Model DHC-8-400 series airplanes, certificated in any category; as identified in Bombardier Service Bulletin 84-78-01, Revision ‘A,’ dated September 15, 2005. Unsafe Condition
(d)This AD results from a report of a discrepancy found during a maintenance inspection on a V-band clamp located on the engine exhaust duct shroud. The clamp ends were touching (although the correct fastener torque had been applied), resulting in reduced clamp force on the flanges. We are issuing this AD to prevent vibration in the duct shroud and fretting of the V-band clamp and flanges, which could result in cracking of the flanges and consequent release of hot exhaust gases from the engine tailpipe and damage to adjacent structure. This situation could trigger the fire warning system and result in an in-flight emergency, such as the flightcrew shutting down the engine and activating the fire suppression system. Compliance
(e)You are responsible for having the actions required by this AD performed within the compliance times specified, unless the actions have already been done. Inspection/Investigative and Corrective Actions
(f)Within 5,000 flight hours after the effective date of this AD: Inspect to determine the part number (P/N) of the V-band clamps on the engine exhaust duct shroud in accordance with the Accomplishment Instructions of Bombardier Service Bulletin 84-78-01, Revision ‘A,’ dated September 15, 2005. For any V-band clamp having P/N VC1642A-2030-A or VC1642A-1875-A, before further flight, determine the manufacturer's date and do all applicable related investigative and corrective actions (including inspecting the flange of the shroud assemblies for discrepancies), by accomplishing all the actions specified in the Accomplishment Instructions of the service bulletin; except as provided by paragraph
(g)of this AD. Do all applicable related investigative and corrective actions before further flight.
(g)If, during the accomplishment of the corrective actions required by paragraph
(f)of this AD, the service bulletin specifies contacting the manufacturer for repair instructions, before further flight, repair in accordance with a method approved by either the Manager, New York Aircraft Certification Office (ACO), FAA; or Transport Canada Civil Aviation
(TCCA)(or its delegated agent). Actions Accomplished According to Previous Issue of Service Bulletin
(h)Actions accomplished before the effective date of this AD according to Bombardier Service Bulletin 84-78-01, dated March 22, 2005, are considered acceptable for compliance with the corresponding actions specified in paragraph
(f)of this AD. Parts Installation
(i)As of the effective date of this AD, no person may install a V-band clamp, P/N VC1642A-2030-A or VC1642A-1875-A, with a manufacturer batch stamp dated before “08-02,” on any airplane. Alternative Methods of Compliance (AMOCs) (j)(1) The Manager, New York ACO, has the authority to approve AMOCs for this AD, if requested in accordance with the procedures found in 14 CFR 39.19.
(2)Before using any AMOC approved in accordance with § 39.19 on any airplane to which the AMOC applies, notify the appropriate principal inspector in the FAA Flight Standards Certificate Holding District Office. Related Information
(k)Canadian airworthiness directive CF-2006-06, dated April 4, 2006, also addresses the subject of this AD. Issued in Renton, Washington, on October 26, 2006. Kalene C. Yanamura, Acting Manager, Transport Airplane Directorate, Aircraft Certification Service. [FR Doc. E6-18573 Filed 11-2-06; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2006-25929; Directorate Identifier 2006-CE-54-AD] RIN 2120-AA64 Airworthiness Directives; Pilatus Aircraft Ltd., PC-6 Series Airplanes AGENCY: Federal Aviation Administration (FAA), Department of Transportation (DOT). ACTION: Notice of proposed rulemaking (NPRM). SUMMARY: We propose to adopt a new airworthiness directive
(AD)for the products listed above. This proposed AD results from mandatory continuing airworthiness information
(MCAI)issued by an aviation authority of another country to identify and correct an unsafe condition on an aviation product. The MCAI describes the unsafe condition as the discovery of exfoliation corrosion in the fittings of some PC-6 airplanes. These fittings are installed exterior to the bottom skin of the wing skin. If not corrected, undetected corrosion in this area could lead to failure of the fitting and subsequent loss of control of the airplane. The proposed AD would require actions that are intended to address the unsafe condition described in the MCAI. DATES: We must receive comments on this proposed AD by December 4, 2006. ADDRESSES: You may send comments by any of the following methods: • *DOT Docket Web site:* Go to *http://dms.dot.gov* and follow the instructions for sending your comments electronically. • *Fax:*
(202)493-2251. • *Mail:* Docket Management Facility, U.S. Department of Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401, Washington, DC 20590-0001. • *Hand Delivery:* Room PL-401 on the plaza level of the Nassif Building, 400 Seventh Street, SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. • *Federal eRulemaking Portal: http://www.regulations.gov.* Follow the instructions for submitting comments. Examining the AD Docket You may examine the AD docket on the Internet at http://dms.dot.gov; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this proposed AD, the regulatory evaluation, any comments received, and other information. The street address for the Docket Office (telephone
(800)647-5227) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt. FOR FURTHER INFORMATION CONTACT: Doug Rudolph, Aerospace Engineer, FAA, Small Airplane Directorate, 901 Locust Street, Room 301, Kansas City, Missouri 64106; telephone:
(816)329-4059; fax:
(816)329-4090. SUPPLEMENTARY INFORMATION: Streamlined Issuance of AD The FAA is implementing a new process for streamlining the issuance of ADs related to MCAI. The streamlined process will allow us to adopt MCAI safety requirements in a more efficient manner and will reduce safety risks to the public. This process continues to follow all FAA AD issuance processes to meet legal, economic, Administrative Procedure Act, and **Federal Register** requirements. We also continue to meet our technical decision-making responsibilities to identify and correct unsafe conditions on U.S.-certificated products. Comments Invited We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2006-25929; Directorate Identifier 2006-CE-54-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD because of those comments. We will post all comments we receive, without change, to *http://dms.dot.gov,* including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive about this proposed AD. Discussion The Federal Office for Civil Aviation (FOCA), which is the airworthiness authority for Switzerland, has issued FOCA AD HB-2006-400, effective date September 28, 2006 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states the FOCA AD was prompted due to the discovery of exfoliation corrosion in the fittings of some PC-6 airplanes. These fittings are installed exterior to the bottom skin of the wing skin. If not corrected, undetected corrosion in this area could lead to failure of the fitting and subsequent loss of control of the airplane. In order to correct and control the situation, the MCAI requires a one time inspection of the wing strut fitting and the replacement of corroded wing strut fittings with new retrofit wing strut fittings. You may obtain further information by examining the MCAI in the AD docket. Relevant Service Information Pilatus Aircraft Ltd., has issued Service Bulletin No. 57-003, dated June 13, 2006. The actions described in this service information are intended to correct the unsafe condition identified in the MCAI. FAA's Determination and Requirements of the Proposed AD This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with this State of Design Authority, they have notified us of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all information and determined the unsafe condition exists and is likely to exist or develop on other products of the same type design. Differences Between This Proposed AD and the MCAI or Service Information We have reviewed the MCAI and related service information and, in general, agree with their substance. But we might have found it necessary to use different words from those in the MCAI to ensure the AD is clear for U.S. operators and is enforceable. In making these changes, we do not intend to differ substantively from the information provided in the MCAI and related service information. We might also have proposed different actions in this AD from those in the MCAI in order to follow FAA policies. Any such differences are described in a separate paragraph of the proposed AD. These requirements, if ultimately adopted, will take precedence over the actions copied from the MCAI. Costs of Compliance Based on the service information, we estimate that this proposed AD would affect about 49 products of U.S. registry. We also estimate that it would take about 27 work-hours per product to comply with the proposed AD. The average labor rate is $80 per work-hour. Required parts would cost about $2,500 per wing, or $5,000 per product. Where the service information lists required parts costs that are covered under warranty, we have assumed that there will be no charge for these costs. As we do not control warranty coverage for affected parties, some parties may incur costs higher than estimated here. Based on these figures, we estimate the cost of the proposed AD on U.S. operators to be $350,840, or $7,160 per product. Authority for This Rulemaking Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority. We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action. Regulatory Findings We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. For the reasons discussed above, I certify this proposed regulation: 1. Is not a “significant regulatory action” under Executive Order 12866; 2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and 3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket. List of Subjects in 14 CFR Part 39 Air transportation, Aircraft, Aviation safety, Safety. The Proposed Amendment Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows: PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority: 49 U.S.C. 106(g), 40113, 44701. § 39.13 [Amended] 2. The FAA amends § 39.13 by adding the following new AD: **Pilatus Aircraft Ltd.:** FAA-2006-25929; Directorate Identifier 2006-CE-54-AD Comments Due Date
(a)We must receive comments by December 4, 2006. Affected ADs
(b)None. Applicability
(c)This AD applies to Models PC-6, PC-6-H1, PC-6-H2, PC-6/350, PC-6/350-H1, PC-6/350-H2, PC-6/A, PC-6/A-H1, PC-6/A-H2, PC-6/B-H2, PC-6/B1-H2, PC-6/B2-H2, PC-6/B2-H4, PC-6/C-H2, and PC-6/C1-H2 airplanes; manufacturer serial numbers
(MSN)101 through 949, MSN 951, and MSN 2001 through 2092; that are certificated in any category. These airplanes are also identified as Fairchild Republic Company PC-6 airplanes, Fairchild Industries PC-6 airplanes, Fairchild Heli Porter PC-6 airplanes, or Fairchild-Hiller Corporation PC-6 airplanes. Reason
(d)The Switzerland Federal Office for Civil Aviation
(FOCA)Airworthiness Directive
(AD)was prompted due to the discovery of exfoliation corrosion in the fittings of some PC-6 airplanes. These fittings are installed exterior to the bottom skin of the wing skin. If not corrected, undetected corrosion in this area could lead to failure of the fitting and subsequent loss of control of the airplane. Actions and Compliance
(e)Unless already done, do the following actions.
(1)Within 12 months after the effective date of this AD and repetitively thereafter not to exceed 12 months, perform an inspection required by paragraph 3.B.(2) of PILATUS PC-6 Service Bulletin
(SB)No. 57-003, dated June 13, 2006, of the fittings Part Number (P/N) 6102.0041.00, P/N 111.35.06.055 or P/N 111.35.06.056 for signs of corrosion. Minor surface corrosion is permitted according to the Repair and Overhaul Manual
(ROM)(Report No. 1391), Chap. 2 and 4. Corrosion outside these limits is not permitted.
(2)If during any of the inspections required by paragraph (e)(1) of this AD, any minor surface corrosion is found, prior to further flight, remove the minor surface corrosion (Ref. ROM. Chap. 2 and 4).
(3)If during any of the inspections required by paragraph (e)(1) of this AD, any corrosion out of limits is found (Ref. ROM, Chap. 2 and 4), prior to further flight, replace the fittings in accordance with paragraph 4. of PILATUS PC-6 SB No. 57-003, dated June 13, 2006, with new (retrofit) fittings P/N 111.35.06.185 and/or P/N 111.35.06.186.
(4)Replacement of the fittings with new (improved) fittings P/N 111.35.06.185 (left hand side) and/or 111.35.06.186 (right hand side) terminates the repetitive inspection for that side. FAA AD Differences Note: This AD differs from the MCAI and/or service information as follows:
(1)The FAA AD is requiring repetitive inspections, not just a one time inspection as required in the MCAI.
(2)The Service Bulletin specifies “subsequent inspection for corrosion will be included in chapter 5 of the Aircraft Maintenance Manual (AMM).” The only way we
(FAA)can mandate these repetitive inspections is through an AD. Other FAA AD Provisions
(f)The following provisions also apply to this AD:
(1)Alternative Methods of Compliance (AMOCs): The Manager, Standards Staff, FAA, Attn: Doug Rudolph, Aerospace Engineer, FAA, Small Airplane Directorate, 901 Locust, Room 301, Kansas City, Missouri 64106; telephone:
(816)329-4059; facsimile:
(816)329-4090, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19.
(2)Airworthy Product: For any requirement in this AD to obtain corrective actions from a manufacturer or other source, use these actions if they are FAA-approved. Corrective actions are considered FAA-approved if they are approved by the State of Design Authority (or their delegated agent). You are required to assure the product is airworthy before it is returned to service.
(3)Reporting Requirements: For any reporting requirement in this AD, under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et.seq.), the Office of Management and Budget
(OMB)has approved the information collection requirements and has assigned OMB Control Number 2120-0056. Related Information
(g)This AD is related to FOCA AD HB-2006-400, effective date September 28, 2006, which references Pilatus Aircraft Ltd. SB No. 57-003, dated June 13, 2006. Issued in Kansas City, Missouri, on October 27, 2006. James E. Jackson, Acting Manager, Small Airplane Directorate, Aircraft Certification Service. [FR Doc. E6-18574 Filed 11-2-06; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF ENERGY Federal Energy Regulatory Commission 18 CFR Parts 38 and 284 [Docket Nos. RM96-1-027 and RM05-5-001] Standards for Business Practices for Interstate Natural Gas Pipelines; Standards for Business Practices for Public Utilities October 25, 2006. AGENCY: Federal Energy Regulatory Commission, DOE. ACTION: Notice of Proposed Rulemaking. SUMMARY: The Federal Energy Regulatory Commission (Commission) proposes to amend its open access regulations governing standards for business practices and electronic communications with interstate natural gas pipelines and public utilities. The Commission is proposing to incorporate by reference certain standards promulgated by the Wholesale Gas Quadrant
(WGQ)and the Wholesale Electric Quadrant
(WEQ)of the North American Energy Standards Board (NAESB). These standards will establish communication protocols between interstate pipelines and power plant operators and transmission owners and operators. Through this rulemaking, the Commission is seeking to improve coordination between the gas and electric industries in order to limit miscommunications about scheduling of gas-fired generators. DATES: Comments are due December 18, 2006. ADDRESSES: Comments and reply comments may be filed electronically via the eFiling link on the Commission's Web site at *http://www.ferc.gov.* Documents created electronically using word processing software should be filed in the native application or print-to-PDF format and not in a scanned format. This will enhance document retrieval for both the Commission and the public. The Commission accepts most standard word processing formats and commenters may attach additional files with supporting information in certain other file formats. Attachments that exist only in paper form may be scanned. Commenters filing electronically should not make a paper filing. Service of rulemaking comments is not required. Commenters that are not able to file electronically must send an original and 14 copies of their comments to: Federal Energy Regulatory Commission, Office of the Secretary, 888 First Street, NE., Washington, DC, 20426. FOR FURTHER INFORMATION CONTACT: Marvin Rosenberg, Office of Energy Markets and Reliability, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426; 202-502-8292. Kay Morice, Office of Energy Markets and Reliability, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426; 202-502-6507. Eric Winterbauer, Office of the General Counsel, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426; 202-502-8329. SUPPLEMENTARY INFORMATION: Table of Contents Paragraph Numbers I. Background 3 II. Discussion 11 A. Incorporation of Standards by Reference 11 B. Additional Issues Raised by NAESB 16 1. Clarifications Regarding Gas Standards 17 a. Use of Gas Indices for Pricing Capacity Release Transactions 17 b. Pipelines' Ability To Permit Shippers to Choose Alternate Delivery Points 19 c. Changes to the Intraday Nomination Gas Schedule 22 2. Clarifications Regarding Electric Standards 24 a. Standards Relating to RTO/ISO Scheduling 24 b. Other Electric Standards Issues 28 III. Notice of Use of Voluntary Consensus Standards 29 IV. Information Collection Statement 30 V. Environmental Analysis 37 VI. Regulatory Flexibility Act Certification 38 VII. Comment Procedures 39 VIII. Document Availability 42 1. The Federal Energy Regulatory Commission (Commission) proposes to amend parts 38 and 284 of its open access regulations governing standards for business practices and electronic communications with interstate natural gas pipelines and public utilities. The Commission is proposing to incorporate by reference certain standards promulgated by the Wholesale Gas Quadrant
(WGQ)and the Wholesale Electric Quadrant
(WEQ)of the North American Energy Standards Board (NAESB). These standards will establish communication protocols between interstate pipelines and power plant operators and transmission owners and operators. Through this rulemaking, the Commission is seeking to improve coordination between the gas and electric industries in order to limit miscommunications about scheduling of gas-fired generators. Improved communications should ensure reliability in both industries. 2. NAESB also filed a report with the Commission including, among other things, a list of issues regarding coordination between the gas and electric industries that NAESB could not resolve. In particular, this report highlighted coordination problems between the gas industry and the scheduling practices of independent system operators
(ISOs)and regional transmission organizations (RTOs). The Commission is concerned that, although organized markets often rely upon gas-fired generation to meet reliability requirements, the current scheduling processes of these market may not afford such generators the flexibility necessary to schedule their gas transactions effectively or to recover the full costs of such transactions, especially when gas prices are volatile. To address these issues, the Commission is establishing proceedings under section 206 of the Federal Power Act to examine whether ISOs and RTOs should be required to implement scheduling and compensation mechanisms to ensure that gas-fired generators can obtain gas when the gas-fired generation is necessary for reliability and that they are compensated appropriately when volatility in gas prices creates difficulty in recovering gas costs. I. Background 3. NAESB is a non-profit, private standards development organization established in January 2002 to propose and adopt voluntary standards and model business practices designed to promote more competitive and efficient natural gas and electric service. Since 1995, NAESB and its predecessor, the Gas Industry Standards Board, have been accredited members of the American National Standards Institute (ANSI), complying with ANSI's requirements that its standards reflect a consensus of the affected industries. 4. NAESB's standards include business practices that streamline the transactional processes of the natural gas and electric industries, as well as communication protocols and related standards designed to improve the efficiency of communication within each industry. NAESB supports all four quadrants of the gas and electric industries—wholesale gas, wholesale electricity, retail gas, and retail electricity—and recognizes the ongoing convergence of the gas and electric businesses by ensuring that its standards receive the input of all industry quadrants when appropriate. All participants in the gas and electric industries are eligible to join NAESB, belong to one or more quadrant(s), and participate in standards development. 5. NAESB's wholesale gas quadrant
(WGQ)is composed of five industry segments: pipelines, producers, local distribution companies, end users, and services (including marketers and computer service companies). NAESB's wholesale electric quadrant similarly includes five industry segments: transmission, generation, marketer/brokers, distribution/load serving entities, and end users. NAESB's procedures ensure that all industry members can have input into the development of a standard, whether or not they are members of NAESB, and each standard NAESB adopts is supported by a consensus of the relevant industry segments. 6. Since 1996, in Order No. 587 and subsequent orders, the Commission, through its notice-and-comment rulemaking process, adopted relevant gas standards by incorporating these standards by reference into its regulations. 1 On April 25, 2006, the Commission by a similar process incorporated by reference the first set of NAESB electric standards. 2 1 *Standards For Business Practices Of Interstate Natural Gas Pipelines,* Order No. 587, 61 FR 39053 (July 26, 1996), FERC Stats. & Regs. Regulations Preambles [July 1996-December 2000] ¶ 31,038 (July 17, 1996). 2 *Standards for Business Practices and Communication Protocols for Public Utilities,* 71 FR 26199 (May 4, 2006), FERC Stats. & Regs. Regulations Preambles ¶ 31,216 (Apr. 25, 2006). 7. In January 2004, a cold snap highlighted the need for better coordination and communication between the gas and electric industries as coincident peaks occurred in both industries making the acquisition of gas and transportation by power plant operators more difficult. In response to this need, in early 2004, NAESB established a Gas-Electric Coordination Task Force to examine issues related to the interrelationship of the gas and electric industries and identify potential areas for improved coordination through standardization. Because of the importance of such coordination, the NAESB Board of Directors established a Gas-Electric Interdependency Committee in September 2004 to review coordination issues and identify potential areas for standards development. 8. As a result of these efforts, on June 27, 2005, NAESB filed a status report with the Commission. The report included ten business practice standards jointly developed by the wholesale gas and electric quadrants, the first such collaboration between the two quadrants. The standards, in general, address communication processes between pipelines, power plant operators, and transmission operators. 3 3 On June 28, 2006, NAESB filed a report advising that the following permanent numbers have been assigned to these standards. The standards for the Wholesale Electric Quadrant are Gas/Electric Coordination Standards WEQ-011-0.1 through WEQ-011-0.3 and WEQ-011-1.1 through WEQ-011-1.6. The standards for the Wholesale Gas Quadrant are: Additional Standards, Definitions 0.2.1 through 0.2.3 and Standards 0.3.11 through 0.3.15. 9. Additionally, the report highlights 13 issues involving gas and electric interdependency. These issues relate to fundamental differences between the two industries, including differences in lead time to prepare for load fluctuations, differences in the precision of instrumentation, and differences in the “utility model” used in the electric industry (in which generating capacity is planned for and built for anticipated future requirements) and the gas industry's “market-driven model” (in which gas capacity is built only for those contracting for such capacity). 10. On February 24, 2006, NAESB filed a final report with the Commission on the efforts of the Gas-Electric Interdependency Committee. Based on the 13 issues, the final report identified six potential areas where existing standards should be reexamined to determine whether new or updated business practices could improve communications between the gas and electric industries. In these six areas, the report makes requests to the Commission to clarify existing policies or identifies areas for standards development. Not all such standards development is supported by every segment of each industry, however. The requests for clarification include: • Clarification of Commission orders regarding pipeline discounts and negotiated rates as relevant to the ability of shippers releasing capacity to price released capacity using gas price indices. • Clarification of Commission orders regarding the ability of pipelines to shift gas with primary firm transportation within a pipeline path without having to re-offer as secondary firm transportation service. Potential areas for standards development include: • Adding an additional gas intraday nomination cycle with bumping rights to provide more flexibility to shippers, including power generators, with firm transportation rights such that they can nominate for natural gas supporting their market clearing times. • Modifying the requirements for organized electric markets so that the markets clear in sufficient time to nominate within the existing gas nomination timelines. • Requiring gas-fired generators that bid into the day-ahead market to have the appropriate gas commercial arrangements to fulfill an accepted bid. • Developing the appropriate supporting definitions for new business practices for the Wholesale Electric Quadrant, including but not limited to definitions for: Alternate fuel capability, usable alternate fuel capability, firm, transportation service, firm sales service, firm supply, and “must run” generator. II. Discussion A. Incorporation of Standards by Reference 11. The Commission is proposing to incorporate by reference the NAESB WEQ and NAESB WGQ definitions and business practice standards providing for coordination and communication between natural gas pipelines and the various electric industry operators, including RTOs, ISOs and gas-fired power generators. Such coordination should help improve the reliability of both the gas and electric industries by ensuring that all parties have information relevant to their scheduling and dispatch. 12. The standards, for example, would require gas-fired power plant operators and pipelines to establish procedures to communicate material changes in circumstances that may affect hourly flow rates. These standards would ensure that pipelines have relevant planning information that will assist in maintaining the operational integrity and reliability of pipeline service, as well as providing gas-fired power plant operators with information as to whether hourly flow deviations can be honored. They would further improve communication by requiring pipelines to provide electric transmission operators, including ISOs and RTOs, and power plant operators to sign up to receive from connecting pipelines operational flow orders and other critical notices. These standards will ensure that operators of the electric grid can stay abreast of developments on gas pipelines that can affect the reliability of electric service. The standards require that, upon request, a gas-fired power plant operator must provide to the appropriate electric balancing authority or electric reliability coordinator pertinent information regarding its service levels for gas transportation (firm or interruptible) and for gas supply (firm, fixed or variable quantity, or interruptible). This information should assist reliability coordinators in assessing the relative reliability of various gas-fired generators. 4 4 Adoption of these standards is in accordance with § 12(d) of the National Technology Transfer and Advancement Act of 1995, in which Congress requires Federal agencies to use technical standards developed by voluntary consensus standards organizations, like the WGQ, as a means to carry out policy objectives or activities. Pub. L. No. 104 113, § 12(d), 110 Stat. 775 (1996), 15 U.S.C. 272 note (1997). 13. To incorporate these standards by reference, the Commission is proposing to amend parts 38 and 284 of its regulations to include the appropriate standards. 5 The Commission is also proposing to amend section 38.1 so that it applies to gas-fired power plant owners and operators and to public utilities that own, operate or control facilities used to effectuate wholesale power sales. 5 The standards for the Wholesale Electric Quadrant are: Gas/Electric Coordination Standards WEQ-011-0.1 through WEQ-011-0.3 and WEQ-011-1.1 through WEQ-011-1.6. The standards for the Wholesale Gas Quadrant are: Additional Standards, Definitions 0.2.1 through 0.2.3 and Standards 0.3.11 through 0.3.15. 14. The Commission is not proposing that pipelines and public utilities make tariff filings to include these standards in their tariffs in this rulemaking. These standards would be included in later standard versions when NAESB updates its wholesale gas and electric standards and, if the Commission decides to incorporate these later standard versions into its regulations, pipelines and public utilities will then be required to include these standards in their tariffs. 15. Four of the standards require pipelines, RTOs/ISOs and/or gas-fired power plant operators to establish procedures to communicate information with each other. 6 For instance, standard WEQ-011-1.2 requires pipelines and gas-fired power plant operators to establish procedures to communicate hourly gas-flow information. With respect to these standards, we propose to require each pipeline and relevant public utility to demonstrate compliance by filing a statement as to whether it has established the required procedures with each relevant entity on its system or taken appropriate action, as required by the standards. While the Commission expects that the parties would be able to negotiate acceptable provisions, if an intractable dispute should arise, the parties can submit the dispute to the Commission for resolution. This is similar to what the Commission has required in previous rulemaking proceedings. 7 6 These standards are WEQ-011-1.2 and WGQ Standard 0.3.12; WEQ-011-1.4; WEQ-011-1.5; and WEQ-011-1.6 and WGQ Standard 0.3.15. 7 *See Standards for Business Practices of Interstate Natural Gas Pipelines,* 85 FERC ¶ 61,371 (1998). In a similar situation (a requirement that pipelines enter into operation balancing agreements
(OBAs)with interconnecting pipelines), rather than requiring pipelines to file their OBAs, the Commission required the pipelines to file a statement with the Commission certifying that they have complied with the requirement to enter into OBAs. B. Additional Issues Raised by NAESB 16. NAESB identified six issues for which it requests clarification of existing Commission policy or puts forward potential areas for standards development that some industry participants believe might assist in resolving coordination problems between the gas and electric industries. These revisions and enhancements, however, did not command a consensus of the industries sufficient to pass as NAESB standards. We discuss below the two requests for clarification. We then discuss the issues for which NAESB requested guidance needs for NAESB to deliberate on potential new standards. 1. Clarifications Regarding Gas Standards a. Use of Gas Indices for Pricing Capacity Release Transactions 17. NAESB has requested clarification of Commission policy with respect to capacity release transactions using gas price indices. Some in NAESB expressed concern that the current NAESB standards on capacity release are more restrictive on pricing beneath the maximum tariff rate than current Commission policy requires. They suggest that revision of these standards would be more consistent with Commission policy and would create an economic incentive for releasing shippers to provide more short-term capacity to the gas-fired generation market. This is because, with the prospect of a higher release value, releasing shippers can explore replacement capacity alternatives that otherwise would not be cost-effective. In this regard, NAESB requests clarification of the Commission's February 27, 2004 Order in *Panhandle* 8 regarding the ability of releasing shippers to employ gas prices indices in pricing capacity release transactions. 8 *Panhandle Eastern Pipe Line Co.* , 106 FERC ¶ 61,194 at P 6 (2004). 18. The Commission clarifies that, as it stated in *Panhandle* , releasing shippers should be free to offer the same type of pricing arrangements that the pipeline offers and, therefore, releasing shippers are free to use gas price indices in pricing released capacity so long as the rate paid by the replacement shipper does not exceed the maximum rate in the pipeline's tariff. As the Commission stated in *Northern* , “rate formulas that produce varying rates during the term of an agreement are permissible as discounted rates, so long as the rate remains within the range established by the maximum and minimum rates set forth in the pipeline's tariff.” 9 9 *Northern Natural Gas Co.* , 105 FERC ¶ 61,299 at P 17 (2003). b. Pipelines' Ability To Permit Shippers To Choose Alternate Delivery Points 19. NAESB requests clarification regarding the ability of pipelines to permit shippers to shift gas deliveries from a primary to a secondary delivery point when a pipeline constraint occurs upstream of both points. Such changes would make it easier for shippers to redirect gas supplies to generators during periods when capacity is scarce. NAESB provides, as an example, that a customer has 100 dekatherms scheduled to flow from a primary receipt point through the posted point of restriction to a primary delivery point. Under the same contract, the customer then requests a nomination change to move 50 of the 100 dekatherms to a secondary delivery point that is outside its transportation path but still through the posted point of restriction. 20. In Order No. 637-B, the Commission provided that pipelines must implement within-the-path scheduling under which a shipper seeking to use a secondary delivery point within its scheduling path has priority over another shipper seeking to use the same delivery point but that point is outside of its transportation path. 10 The Commission posited an example in which Shipper 1 (with a primary delivery point at A) and Shipper 2 (with a primary delivery point downstream at C) pay the same rate in the zone, and both shippers are seeking to change delivery points to point B. The Commission found that Shipper 2 should receive a higher priority over mainline capacity to point B than Shipper 1, because point B is within Shipper 2's path. 10 *Regulation of Short-Term Natural Gas Transportation Services* , 92 FERC ¶ 61,062 at 61,168-70 (2000). EP03NO06.000 21. The scenario posed by NAESB is a slight variation of the within-the-path scheduling as described in Order No. 637-B. Although the shipper has scheduled capacity through a posted point of constraint, the secondary delivery point it seeks to use is outside of its transportation path. In most cases, it would be reasonable to permit the reassignment as posited by NAESB, since the shipper seeking to redesignate delivery points already has a transportation contract with primary points through the posted constraint point and has scheduled gas through that point so that reallocating gas to a different delivery point would not pose an operational problem. The only possible caveat would be if the shipper (Shipper 1) seeks to redesignate a secondary delivery point (outside its path) that is also being requested by another shipper, and the delivery point is within the path of the Shipper 2. If both secondary nominations to that point cannot be accepted, as in the case of the example above, Shipper 2, with a contract path through the secondary point, would have priority. c. Changes to the Intra-Day Nomination Gas Schedule 22. NAESB suggests a review of the possibility of adding an additional intra-day nomination cycle with bumping rights to provide more flexibility to shippers, including power generators, with firm transportation rights such that they can nominate for natural gas supporting their market clearing times. 23. Any standards that would allow better coordination between scheduling of gas and electric markets would be of benefit to both industries, and we encourage NAESB to continue its efforts to develop such standards. With respect to intra-day nominations, the Commission's regulations provide that firm transportation capacity must be accorded scheduling priority over interruptible transportation capacity. 11 At the same time, however, the Commission has recognized the interest of interruptible shippers in achieving business certainty by making the last intra-day nomination opportunity one in which firm nominations do not bump interruptible nominations: 11 18 CFR 284.12(b)(1)(i)(A)(2006). Making the third intra-day nomination non-bumping creates a fair balance between firm shippers, who will have had two opportunities to reschedule their gas, and interruptible shippers and will provide some necessary stability in the nomination system, so that shippers can be confident by mid-afternoon that they will receive their scheduled flows. 12 12 *Standards for Business Practices of Interstate Natural Gas Pipelines,* Order No. 587-G, 63 FR 20072 (Apr. 23, 1998), FERC Stats. & Regs. Regulations Preambles ¶ 31,062 at 30,672 (Apr. 16, 1998). However, within the confines of these policies, NAESB may consider whether changes to existing intra-day schedules can better provide for coordination between gas and electric scheduling. For instance, the current NAESB standards require intra-day nominations to be submitted by 10 a.m. (bumping) and 5 p.m. (non-bumping). There is no reason why another bumping intra-day nomination opportunity could not be introduced between these two or that the timing of these intra-day nomination opportunities could not be adjusted to better coordinate with electric scheduling. 2. Clarifications Regarding Electric Standards a. Standards Relating to RTO/ISO Scheduling 24. NAESB has considered, but has been unable to agree upon, modifications to the routine scheduling of ISO and RTO markets (not in an emergency) so that the markets clear in sufficient time to nominate within the existing gas nomination timelines. It also considered whether standards should be developed to require generators that offer into the day-ahead market to have the appropriate gas commercial arrangements to fulfill the needed obligations. As NAESB states, the disconnect between gas and electric schedules leaves some generators two options: Either
(a)purchase and nominate gas transportation on a timely basis and risk not having their bid subsequently clear the power market or,
(b)wait to see if their bid clears the power market and risk relying upon the intra-day gas transportation nominations. 25. The Commission agrees that these are serious issues, particularly during periods of coincident peak use in the electric and gas industries. RTOs and ISOs frequently consider gas-fired generation to be necessary to maintain reliability. Yet, especially during periods when both electricity and gas are in short supply, gas-fired generators may have difficulty buying gas and transportation, because the RTOs' and ISOs' scheduling process does not match the gas process. Moreover, if the gas-fired generator does submit bids into the RTO/ISO market based on current gas prices, those prices may change significantly during periods with volatile gas prices by the time the RTO or ISO calls upon the generator to run. 13 13 If the gas-fired generator seeks to hedge its gas prices, and is not dispatched, it may be unable to recover its gas costs. 26. Because of the serious repercussions on the electric market of these problems, the Commission is concurrently opening section 206 proceedings to examine the RTO and ISO scheduling processes during emergency conditions. These proceedings are intended to ensure that the RTOs and ISOs have procedures in place during emergencies to permit better synchronization of their markets with the gas market and to ensure that generators making appropriate bids into the RTO and ISO markets are able to recover their prudently incurred costs. 27. The NAESB report raised the issue of whether to develop standards regarding the appropriate commercial relationships that generators must have in bidding into day ahead markets, so that they have the appropriate gas commercial arrangements to fulfill the needed obligations. Some of the objections to such an effort, NAESB notes, are that it would interfere with company's risk management strategies, and that reliability issues should be addressed by NERC. We agree that business practice standards requiring, for instance, that gas-fired generators have firm gas supply or gas transportation contracts would go beyond the scope of business practices. Instead of mandating commercial relationships, the section 206 proceedings will focus on ensuring that generators in organized markets can synchronize their gas and electric scheduling and can receive appropriate compensation for prudently incurred costs if gas prices deviate significantly from those that could have been expected at the time they submitted their bid. b. Other Electric Standards Issues 28. NAESB also suggests that supporting definitions for new business practices could be developed for the electric industry, including but not limited to definitions for: alternate fuel capability, usable alternate fuel capability, firm transportation service, firm sales service, firm supply, and “must run” generator. The report is not clear as to what affect such definitions would have on the operation of the electric grid, or what business practices would be affected. Consequently, we will not at this time provide guidance on whether such definitions should be developed. III. Notice of Use of Voluntary Consensus Standards 29. In section 12(d) of the National Technology Transfer and Advancement Act of 1995, Congress affirmatively requires Federal agencies to use technical standards developed by voluntary consensus standards organizations, like NAESB, as the means to carry out policy objectives or activities unless use of such standards would be inconsistent with applicable law or otherwise impractical. 14 NAESB approved the standards under its consensus procedures. Office of Management and Budget Circular A-119 (§ 11) (February 10, 1998) provides that Federal agencies should publish a request for comment in a NOPR when the agency is seeking to issue or revise a regulation proposing to adopt a voluntary consensus standard or a government-unique standard. In this NOPR, the Commission is proposing to incorporate by reference voluntary consensus standards developed by the WGQ and WEQ. 14 Pub. L. No. 104-113, § 12(d), 110 Stat. 775 (1996), 15 U.S.C. 272 note (1997). IV. Information Collection Statement 30. The following collections of information contained in this proposed rule have been submitted to the Office of Management and Budget
(OMB)for review under section 3507(d) of the Paperwork Reduction Act of 1995, 44 U.S.C. 3507(d). The Commission solicits comments on the Commission's need for this information, whether the information will have practical utility, the accuracy of the provided burden estimates, ways to enhance the quality, utility, and clarity of the information to be collected, and any suggested methods for minimizing respondents' burden, including the use of automated information techniques. The following burden estimates include the costs to implement the WEQ's and WGQ's definitions and business practice standards providing for coordination and which will establish communication protocols between interstate natural gas pipelines and power plant operators and transmission owners and the various electric industry operators. The burden estimates are primarily related to start-up to implement these standards and regulations and will not result in ongoing costs. Data collection Number of respondents Number of responses per respondent Hours per response Total number of hours FERC-549C 93 1 20 1,860 FERC-717 220 1 33 7,260 Totals 9,120 Total Annual Hours for Collection (Reporting and Recordkeeping, (if appropriate)) = 9,120. *Information Collection Costs:* The Commission seeks comments on the costs to comply with these requirements. It has projected the average annualized cost for all respondents to be the following: 15 15 The total annualized cost for the two information collections is $1,368,000. This number is reached by multiplying the total hours to prepare a response (hours) by an hourly wage estimate of $150 (a composite estimate that includes legal, technical and support staff rates). $1,368,000 = $150 × 9,120. FERC-549C FERC-717 Annualized Capital/Startup Costs $279,000 $1,089,000 Annualized Costs (Operations & Maintenance) N/A N/A Total Annualized Costs 279,000 1,089,000 31. OMB regulations 16 require OMB to approve certain information collection requirements imposed by agency rule. The Commission is submitting notification of this proposed rule to OMB. These information collections are mandatory requirements. 16 5 CFR 1320.11. *Title:* Standards for Business Practices of Interstate Natural Gas Pipelines (FERC-549C). Standards for Business Practices and Communication Protocols for Public Utilities (FERC-717) (formerly Open Access Same Time Information System). *Action:* Proposed collections. *OMB Control No.:* 1902-0174 and 1902-0173. *Respondents:* Business or other for profit, (Public Utilities and Natural Gas Pipelines (Not applicable to small business)). *Frequency of Responses:* One-time implementation (business procedures, capital/start-up). 32. *Necessity of Information:* This proposed rule, if implemented, would upgrade the Commission's current business practice and communication standards to include standardized communication protocols between interstate pipelines and power plant operators and transmission owners and operators. The implementation of these standards and regulations is necessary to improve coordination between the gas and electric industries, to limit miscommunications about scheduling of gas-fired generators and to improve the reliability in both industries. 33. The implementation of these data requirements will help the Commission carry out its responsibilities under the Federal Power Act and Natural Gas Act of promoting the efficiency and reliability of the electric and gas industries' operations. The Commission's Office of Energy Markets and Reliability will use the data for general industry oversight. 34. *Internal Review:* The Commission has reviewed the requirements pertaining to business practices and electronic communication of public utilities and natural gas pipelines and made a preliminary determination that the proposed revisions are necessary to establish more efficient coordination between the gas and electric industries. Requiring such information ensures both a common means of communication and common business practices to limit miscommunication for participants engaged in the sale of electric energy at wholesale and the transportation of natural gas. These requirements conform to the Commission's plan for efficient information collection, communication, and management within the electric power and natural gas pipeline industries. The Commission has assured itself, by means of its internal review, that there is specific, objective support for the burden estimates associated with the information requirements. 35. *Interested persons may obtain information on the reporting requirements by contacting the following:* Federal Energy Regulatory Commission, Attn: Michael Miller, Office of the Executive Director, 888 First Street, NE., Washington, DC 20426 Tel:
(202)502-8415/Fax:
(202)273-0873, E-mail: *michael.miller@ferc.gov* . 36. Comments concerning the collection of information(s) and the associated burden estimate(s), should be sent to the contact listed above and to the Office of Management and Budget, Office of Information and Regulatory Affairs, Washington, DC 20503 [Attention: Desk Officer for the Federal Energy Regulatory Commission, phone:
(202)395-7856, fax:
(202)395-7285]. V. Environmental Analysis 37. The Commission is required to prepare an Environmental Assessment or an Environmental Impact Statement for any action that may have a significant adverse effect on the human environment. 17 The Commission has categorically excluded certain actions from these requirements as not having a significant effect on the human environment. 18 The actions proposed here fall within categorical exclusions in the Commission's regulations for rules that are clarifying, corrective, or procedural, for information gathering, analysis, and dissemination, and for sales, exchange, and transportation of natural gas and electric power that requires no construction of facilities. 19 Therefore, an environmental assessment is unnecessary and has not been prepared in this NOPR. 17 *Regulations Implementing the National Environmental Policy Act* , Order No. 486, 52 FR 47897 (Dec. 17, 1987), FERC Stats. & Regs. Preambles 1986-1990 ¶ 30,783 (1987). 18 18 CFR 380.4(2005). 19 *See* 18 CFR 380.4(a)(2)(ii), 380.4(a)(5), 380.4(a)(27)(2005). VI. Regulatory Flexibility Act Certification 38. The Regulatory Flexibility Act of 1980
(RFA)20 generally requires a description and analysis of final rules that will have significant economic impact on a substantial number of small entities. The regulations proposed here impose requirements only on interstate pipelines and public utilities, the majority of which are not small businesses, and would not have a significant economic impact. These requirements are, in fact, designed to benefit all customers, including small businesses. Accordingly, pursuant to section 605(b) of the RFA, the Commission hereby certifies that the regulations proposed herein will not have a significant adverse impact on a substantial number of small entities. 20 5 U.S.C. 601-612(2006). VII. Comment Procedures 39. The Commission invites interested persons to submit comments on the matters and issues proposed in this notice to be adopted, including any related matters or alternative proposals that commenters may wish to discuss. Comments are due December 18, 2006. Comments must refer to Docket Nos. RM05-28-000, RM96-1-027, and RM05-5-001 and must include the commenter's name, the organization they represent, if applicable, and their address in their comments. Comments may be filed either in electronic or paper format. 40. Comments may be filed electronically via the eFiling link on the Commission's Web site at *http://www.ferc.gov* . The Commission accepts most standard word processing formats and commenters may attach additional files with supporting information in certain other file formats. Commenters filing electronically do not need to make a paper filing. Commenters that are not able to file comments electronically must send an original and 14 copies of their comments to: Federal Energy Regulatory Commission, Office of the Secretary, 888 First Street, NE., Washington, DC 20426. 41. All comments will be placed in the Commission's public files and may be viewed, printed, or downloaded remotely as described in the Document Availability section below. Commenters on this proposal are not required to serve copies of their comments on other commenters. VIII. Document Availability 42. In addition to publishing the full text of this document in the **Federal Register** , the Commission provides all interested persons an opportunity to view and/or print the contents of this document via the Internet through FERC's Home Page ( *http://www.ferc.gov* ) and in FERC's Public Reference Room during normal business hours (8:30 a.m. to 5 p.m. eastern time) at 888 First Street, NE., Room 2A, Washington, DC 20426. 43. From FERC's Home Page on the Internet, this information is available in eLibrary. The full text of this document is available in eLibrary both in PDF and Microsoft Word format for viewing, printing, and/or downloading. To access this document in eLibrary, type the docket number excluding the last three digits of this document in the docket number field. 44. User assistance is available for eLibrary and the FERC's Web site during our normal business hours. For assistance contact FERC Online Support at *FERCOnlineSupport@ferc.gov* or toll-free at
(866)208-3676, or for TTY, contact
(202)502-8659. List of Subjects 18 CFR Part 38 Conflict of interests, Electric power plants, Electric utilities, Incorporation by reference, Reporting and recordkeeping requirements. 18 CFR Part 284 Incorporation by reference, Natural gas, Reporting and recordkeeping requirements. By direction of the Commission. Magalie R. Salas, Secretary. In consideration of the foregoing, the Commission proposes to amend parts 38 and 284, Chapter I, Title 18, Code of Federal Regulations, as follows: PART 38—BUSINESS PRACTICE STANDARDS AND COMMUNICATION PROTOCOLS FOR PUBLIC UTILITIES 1. The authority citation for part 38 continues to read as follows: Authority: 16 U.S.C. 791-825r, 2601-2645; 31 U.S.C. 9701; 42 U.S.C. 7101-7352. 2. Section 38.1 is revised to read as follows: § 38.1 Applicability. This part applies to any public utility that owns, operates, or controls facilities used for the transmission of electric energy in interstate commerce or for the sale of electric energy at wholesale in interstate commerce and to any non-public utility that seeks voluntary compliance with jurisdictional transmission tariff reciprocity conditions. 3. Section 38.2 is amended by adding new paragraph (a)(8) to read as follows: § 38.2 Incorporation by reference of North American Energy Standards Board Wholesale Electric Quadrant standards.
(a)* * *
(8)Gas/Electric Coordination Standards including the WEQ standards contained in Final Action R04021 (August 15, 2005). PART 284—CERTAIN SALES AND TRANSPORTATION OF NATURAL GAS UNDER THE NATURAL GAS POLICY ACT OF 1978 AND RELATED AUTHORITIES 4. The authority citation for part 284 continues to read as follows: Authority: 15 U.S.C. 717-717w, 3301-3432; 42 U.S.C. 7101-7352; 43 U.S.C. 1331-1356. 5. In § 284.12, paragraph (a)(1)(i) is revised to read as follows: § 284.12 Standards for pipeline business operations and communications.
(a)* * *
(1)* * *
(i)Additional Standards (General Standards and Creditworthiness Standards) (Version 1.7, December 31, 2003) and the WGQ standards contained in Final Action R04021 (August 15, 2005). [FR Doc. E6-18336 Filed 11-2-06; 8:45 am] BILLING CODE 6717-01-P DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 165 [CGD05-06-091] RIN 1625-AA00 Safety Zones; Fireworks Displays Within the Fifth Coast Guard District AGENCY: Coast Guard, DHS. ACTION: Notice of proposed rulemaking. SUMMARY: The Coast Guard proposes to amend the list of permanent safety zones established for fireworks displays at various locations within the geographic boundary of the Fifth Coast Guard District. This action is necessary to protect the life and property of the maritime public from the hazards posed by fireworks displays. Entry into or movement within these proposed zones during the enforcement periods is prohibited without approval of the appropriate Captain of the Port. DATES: Comments and related material must reach the Coast Guard on or before December 4, 2006 ADDRESSES: You may mail comments and related material to Commander (dpi), Fifth Coast Guard District, 431 Crawford Street, Portsmouth, Virginia 23704-5004, or hand-deliver them to Room 415 at the same address between 9 a.m. and 2 p.m., Monday through Friday, except Federal holidays, or fax them to
(757)398-6203. The Inspections and Investigations Branch, Fifth Coast Guard District, maintains the public docket for this rulemaking. Comments and material received from the public, as well as documents indicated in this preamble as being available in the docket, will become part of this docket and will be available for inspection or copying at the above address between 9 a.m. and 2 p.m., Monday through Friday, except Federal holidays. FOR FURTHER INFORMATION CONTACT: Dennis Sens, Project Manager, Inspections and Investigations Branch, at
(757)398-6204. SUPPLEMENTARY INFORMATION: Request for Comments We encourage you to participate in this rulemaking by submitting comments and related material. If you do so, please include your name and address, identify the docket number for this rulemaking (CGD05-06-091), indicate the specific section of this document to which each comment applies, and give the reason for each comment. Please submit all comments and related material in an unbound format, no larger than 8 1/2 by 11 inches, suitable for copying. If you would like to know they reached us, please enclose a stamped, self-addressed postcard or envelope. We will consider all comments and material received during the comment period. We may change this proposed rule in view of them. Public Meeting We do not now plan to hold a public meeting. But you may submit a request for a meeting by writing to the address listed under ADDRESSES explaining why one would be beneficial. If we determine that one would aid this rulemaking, we will hold one at a time and place announced by a notice in the **Federal Register.** Background and Purpose The Coast Guard proposes to amend the list of permanent safety zones at 33 CFR 165.506, established for fireworks displays at various locations within the geographic boundary of the Fifth Coast Guard District. Currently there are 34 permanent safety zones established that are enforced for fireworks displays occurring throughout the year that are held on an annual basis and normally in one of these 34 locations. The 34 established permanent safety zone locations are: Patuxent River Solomons Island, MD; Middle River, MD; Northeast River, MD; Potomac River, Charles County, MD; Baltimore Inner Harbor, Patapsco River, MD; Northwest Harbor (Western Section), Patapsco River, MD; Northwest Harbor (East Channel), Patapsco River, MD; Washington Channel, Upper Potomac River, Washington, DC; Dukeharts Channel, Potomac River, MD; Severn River and Spa Creek, Annapolis, MD; Miles River, St. Michaels, MD; Chesapeake Bay, Chesapeake Beach, MD; Choptank River, Cambridge, MD; Chester River, Kent Island Narrows, MD; Atlantic Ocean, Ocean City, MD; Isle of Wight Bay, Ocean City, MD; Assawoman Bay, Fenwick Island, MD; Atlantic Ocean, Rehoboth Beach, DE; Indian River Bay, DE; Little Egg Harbor, Parker Island, NJ; Barnegat Bay, Ocean Township, NJ; Delaware Bay, North Cape May, NJ; Delaware River, Philadelphia, PA; Morehead City Harbor Channel, Morehead City, NC; Green Creek and Smith Creek, Oriental, NC; Pamlico River, Washington, NC; Neuse River, New Bern, NC; Cape Fear River, Southport, NC; Cape Fear River, Wilmington, NC; Upper Potomac River, Alexandria, VA; Potomac River, Prince William County, VA; Chincoteague Channel, Chincoteague, VA; Atlantic Ocean, Virginia Beach, VA; and Elizabeth River, Southern Branch, Norfolk, VA. The Coast Guard proposes to amend the list of permanent safety zones at 33 CFR 165.506, established for fireworks displays, by adding 15 new locations and modifying 3 previously established locations within the geographic boundary of the Fifth Coast Guard District. This rule will increase the total number of permanent safety zones to 49 locations for fireworks displays within the boundary of the Fifth Coast Guard District. The 15 new safety zone locations proposed to be added by this rule are: Patapsco River (Middle Branch), Baltimore, MD; Susquehanna River, Havre de Grace, MD; Tred Avon River, Oxford, MD; Delaware River, Essington, PA; Chesapeake Bay, Norfolk, VA; Broad Bay, Virginia Beach, VA; Chickahominy River, Williamsburg, VA; York River, Yorktown, VA; James River, Newport News, VA; Chesapeake Bay, Virginia Beach, VA; York River, West Point, VA; Big Foot Slough, Ocracoke, NC; Pasquotank River, Elizabeth City, NC; Currituck Sound, Corolla, NC; and Middle Sound, Figure Eight Island, NC. The previously established safety zone locations proposed for modification by this rule are: Potomac River, Charles County, MD; Dukeharts Channel, Potomac River, MD, and Chester River, Kent Island Narrows, MD. The Coast Guard typically receives numerous applications in these areas for fireworks displays. Previously a temporary safety zone was usually established on an emergency basis for each display. This limited the opportunity for public comment. Establishing permanent safety zones through notice and comment rulemaking provides the public the opportunity to comment on the zone locations, size and length of time the zones will be enforced. Each year organizations in the Fifth Coast Guard District sponsor fireworks displays in the same general location and time period. Each event uses a barge or an on-shore site as the fireworks launch platform. A safety zone is used to control vessel movement within a specified distance surrounding the launch platforms to ensure the safety of persons and property. Coast Guard personnel on scene could allow persons within the safety zone if conditions permit. The Coast Guard would publish notices in the **Federal Register** if an event sponsor reported a change to the listed event venue or date. Coast Guard Captains of the Port would give notice of the enforcement of each safety zone by all appropriate means to provide the widest publicity among the affected segments of the public. This would include publication in the Local Notice to Mariners and Marine Information Broadcasts. Marine information and facsimile broadcasts may also be made for these events, beginning 24 to 48 hours before the event is scheduled to begin, to notify the public. Fireworks barges or launch sites on land used in the locations stated in this rulemaking would also have a sign on the port and starboard side of the barge or mounted on a post 3 foot above ground level when on land and facing the water labeled “Fireworks—Danger—Stay Away”. This would provide on scene notice that the safety zone is or will be enforced on that day. This notice will consist of a diamond shaped sign 4 foot by 4 foot with a 3-inch orange retroreflective border. The word “Danger” shall be 10 inch black block letters centered on the sign with the words “Fireworks” and “Stay Away” in 6 inch black block letters placed above and below the word “Danger” respectively on a white background. There would also be a Coast Guard patrol vessel on scene 30 minutes before the display is scheduled to start until 30 minutes after its completion to enforce the safety zone. The enforcement period for these proposed safety zones is from 5:30 p.m. (e.s.t.) to 1 a.m. (e.s.t.). However, vessels may enter, remain in, or transit through these safety zones during this timeframe if authorized by the Captain of the Port or designated Coast Guard patrol personnel on scene, as provided for in 33 CFR 165.23. This rule is being proposed to provide for the safety of life on navigable waters during the events and to give the marine community the opportunity to comment on the proposed zone locations, size, and length of time the zones will be active. Discussion of Proposed Rule The Coast Guard proposes to amend the regulations at 33 CFR 165.506 by adding the following 15 permanent safety zone locations. Patapsco River (Middle Branch), Baltimore, MD, Safety Zone All waters of the Patapsco River, Middle Branch, within an area bound by a line drawn from the following points: 39°15′22″ N, 076°36′36″ W; thence to 39°15′10″ N, 076°36′00″ W; thence to 39°15′40″ N, 076°35′23″ W; thence to 39°15′49″ N, 076°35′47″ W; thence to the point of origin, (Datum NAD 1983), located approximately 600 yards east of Hanover Street (SR-2) Bridge. Susquehanna River, Havre de Grace, MD, Safety Zone All waters of the Susquehanna River within a 150 yard radius of the fireworks barge in approximate position 39°32′42″ N, 076°04′30″ W (Datum NAD 1983), approximately 800 yards east of the waterfront at Havre de Grace, MD. Tred Avon River, Oxford, MD, Safety Zone All waters of the Tred Avon River within a 150 yard radius of the fireworks barge in approximate position 38°41′48″ N, 076°10′38″ W (Datum NAD 1983), approximately 500 yards northwest of the waterfront at Oxford, MD. Delaware River, Essington, PA, Safety Zone All waters of the Delaware River within a 300 yard radius of the fireworks barge in approximate position 39°51′18″ N, 075°18′57″ W (Datum NAD 1983), due west of Little Tinicum Island. Chesapeake Bay, Norfolk, VA, Safety Zone All waters of the Chesapeake Bay within a 400 yard radius of the fireworks display located in position 36°57′21″ N, 076°15′00″ W; (Datum NAD 1983), located near Ocean View Fishing Pier. Broad Bay, Virginia Beach, VA, Safety Zone All waters of the Broad Bay within a 400 yard radius of the fireworks display in approximate position 36°52′08″ N, 076°00′46″ W (Datum NAD 1983), located on the shoreline near the Cavalier Golf and Yacht Club, Virginia Beach, Virginia. Chickahominy River, Williamsburg, VA, Safety Zone All waters of the Chickahominy River within a 400 yard radius of the fireworks display in approximate position 37°14′50″ N, 076°52′17″ W (Datum NAD 1983), near Barrets Point, Virginia. York River, Yorktown, VA, Safety Zone All waters of the York River within a 400 yard radius of the fireworks display in approximate position 37°14′14″ N, 076°30′02″ W (Datum NAD 1983), located near Yorktown, Virginia. James River, Newport News, VA, Safety Zone All waters of the James River within a 325 yard radius of the fireworks barge in approximate position 36°58′30″ N, 076°26′19″ W (Datum NAD 1983), located in the vicinity of the Newport News Shipyard, Newport News, Virginia. Chesapeake Bay, Virginia Beach, VA, Safety Zone All waters of the Chesapeake Bay within a 400 yard radius of the fireworks display in approximate position 36°55′02″ N, 076°03′27″ W (Datum NAD 1983), located at the First Landing State Park at Virginia Beach, Virginia. York River, West Point, VA, Safety Zone All waters of the York River near West Point, VA within a 400 yard radius of the fireworks display located in approximate position 37°31′25″ N, 076°47′19″ W (Datum NAD 1983). Big Foot Slough, Ocracoke, NC, Safety Zone All waters of Big Foot Slough within a 300 yard radius of the fireworks launch site in approximate position 35°06′54″ N, 075°59′24″ W (Datum NAD 1983), approximately 100 yards west of the Silver Lake Entrance Channel at Orcacoke, NC. Pasquotank River, Elizabeth City, NC, Safety Zone All waters of the Pasquotank River with a 300 yard radius of the fireworks launch site in approximate position 36°18′00″ N, 076°13′00″ W (Datum NAD 1983), approximately 200 yards south of the east end of the Elizabeth City Bascule Bridges. Currituck Sound, Corolla, NC, Safety Zone All waters of the Croatan Sound within a 300 yard radius of the fireworks barge in approximate position 36°22′48″ N, 075°51′15″ W (Datum NAD 1983). Middle Sound, Figure Eight Island, NC, Safety Zone All waters of the Figure Eight Island Causeway Channel from latitude 34°16′32″ N, 077°45′32″ W, thence east along the marsh to a position located at 34°16′19″ N, 077°44′55″ W, thence south to the causeway at position 34°16′16″ N, 077°44′58″ W, thence west along the shoreline to position 34°16′29″ N, 077°45′34″ W, (Datum NAD 1983), thence back to the point of origin. The Coast Guard proposes to amend the regulations at 33 CFR 165.506 by modifying three permanently established safety zone locations as follows. Potomac River, Charles County, MD, Safety Zone All waters of the Potomac River within a 300 yard radius of the fireworks barge in approximate position 38°20′36″ N, 077°14′09″ W (Datum NAD 1983), approximately 1400 yards north of the shoreline at Fairview Beach, Virginia. Dukeharts Channel, Potomac River, MD, Safety Zone All waters of the Potomac River within a 300 yard radius of the fireworks barge in approximate position 38°13′48″ N, 076°44′37″ W (Datum NAD 1983), located adjacent to Dukeharts Channel near Coltons Point, Maryland. Chester River, Kent Island Narrows, MD, Safety Zone All waters of the Chester River, within an area bound by a line drawn from the following points: 38°58′50″ N, 076°15′00″ W; thence north to 38°59′00″ N, 076°15′00″ W; thence east to 38°59′00″ N, 076°14′46″ W;, thence southeast to 38°58′50″ N, 076°14′28″ W; thence southwest to 38°58′37″ N, 076°14′36″ W, thence northwest to 38°58′42″ N, 076°14′55″ W, thence to the point of origin, (Datum NAD 1983), located approximately 900 yards north of Kent Island Narrows (US-50/301) Bridge. Regulatory Evaluation This proposed 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. It is not “significant” under the regulatory policies and procedures of the Department of Homeland Security (DHS). We expect the economic impact of this proposed rule to be so minimal that a full Regulatory Evaluation under the regulatory policies and procedures of DHS is unnecessary. This finding is based on the short amount of time that vessels would be restricted from the zones, and the small zone sizes positioned in low vessel traffic areas. Vessels would not be precluded from getting underway, or mooring at any piers or marinas currently located in the vicinity of the proposed safety zones. Advance notifications would also be made to the local maritime community by issuing Local Notice to Mariners. Marine information and facsimile broadcasts may also be made to notify the public. Additionally, the Coast Guard anticipates that these safety zones will only be enforced 2 to 3 times per year. Small Entities Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this proposed 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 proposed rule would not have a significant economic impact on a substantial number of small entities. This rule will affect the following entities some of which may be small entities: The owners and operators of vessels intending to transit or anchor in the proposed safety zones during the times these zones are enforced. These proposed safety zones will not have a significant economic impact on a substantial number of small entities for the following reasons: The enforcement period will be short in duration and in many of the zones vessels can transit safely around the safety zones. Generally, blanket permission to enter, remain in, or transit through these safety zones will be given except during the period that the Coast Guard patrol vessel is present. Before the enforcement period, we will issue maritime advisories widely. If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (see ADDRESSES ) explaining why you think it qualifies and how and to what degree this rule would economically affect it. Assistance for Small Entities Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Public Law 104-121), we want to assist small entities in understanding this proposed rule so that they can better evaluate its effects on them and participate in the rulemaking. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard. Collection of Information This proposed rule would call 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 proposed 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 proposed rule would not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble. Taking of Private Property This proposed rule would 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 proposed 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 proposed rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and would not create an environmental risk to health or risk to safety that might disproportionately affect children. Indian Tribal Governments This proposed rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it would 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 proposed 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 proposed rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards. Environment We have analyzed this proposed rule under Commandant Instruction M16475.lD and Department of Homeland Security Management Directive 5100.1, which guides 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. This rule fits the category selected from paragraph (34)(g), as it would establish 49 safety zones. A draft “Environmental Analysis Check List” and a draft “Categorical Exclusion Determination” are available in the docket where indicated under ADDRESSES. Comments on this section will be considered before we make the final decision on whether the rule should be categorically excluded from further environmental review. 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 proposes to amend 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. Revise § 165.506 to read as follows: § 165.506 Safety Zones; Fifth Coast Guard District Fireworks Displays.
(a)*Locations.
(1)Patuxent River, Solomons Island, MD, Safety Zone.* All waters of Patuxent River within a 300 yard radius of the fireworks barge in an area bound by the following points: 38°19′42″ N, 076°28′02″ W; thence to 38°19′26″ N, 076°28′18″ W; thence to 38°18′48″ N, 076°27′42″ W; thence to 38°19′06″ N 076°27′25″ W; (Datum NAD 1983), thence to the point of origin, located near Solomons Island, MD. *(2) Middle River, Baltimore County, MD, Safety Zone.* All waters of the Middle River within a 300 yard radius of the fireworks barge in approximate position 39°17′45″ N, 076°23′49″ W (Datum NAD 1983), approximately 300 yards east of Rockaway Beach, near Turkey Point. *(3) Northeast River, North East, MD, Safety Zone.* All waters of the Northeast River within a 300 yard radius of the fireworks barge in approximate position 39°35′26″ N, 075°57′00″ W (Datum NAD 1983), approximately 400 yards south of North East Community Park. *(4) Upper Potomac River, Alexandria, VA, Safety Zone.* All waters of the Upper Potomac River within a 300 yard radius of the fireworks barge in approximate position 38°48′37″ N, 077°02′02″ W (Datum NAD 1983), located near the waterfront of Alexandria, Virginia. *(5) Potomac River, Prince William County, VA, Safety Zone.* All waters of the Potomac River within a 200 yard radius of the fireworks barge in approximate position 38°34′08″ N, 077°15′34″ W (Datum NAD 1983), located near Cherry Hill, Virginia. *(6) Potomac River, Charles County, MD, Safety Zone.* All waters of the Potomac River within a 300 yard radius of the fireworks barge in approximate position 38°20′36″ N, 077°14′09″ W (Datum NAD 1983), approximately 1400 yards north of the shoreline at Fairview Beach, Virginia. *(7) Baltimore Inner Harbor, Patapsco River, MD, Safety Zone.* All waters of the Patapsco River within a 150 yard radius of the fireworks barge in approximate position 39°16′55″ N, 076°36′17″ W (Datum NAD 1983), located at the entrance to Baltimore Inner Harbor, approximately 150 yards southwest of pier 6. *(8) Northwest Harbor (Western Section) Patapsco River, MD, Safety Zone.* All waters of the Patapsco River within a 250 yard radius of the fireworks barge in approximate position 39°16′37″ N, 076°35′54″ W (Datum NAD 1983), located near the western end of Northwest Harbor. *(9) Northwest Harbor (East Channel), Patapsco River, MD, Safety Zone.* All waters of the Patapsco River within a 300 yard radius of the fireworks barge in approximate position 39°15′55″ N, 076°34′35″ W (Datum NAD 1983), located adjacent to the East Channel of Northwest Harbor. *(10) Patapsco River (Middle Branch), Baltimore, MD, Safety Zone.* All waters of the Patapsco River, Middle Branch, within an area bound by a line drawn from the following points: 39°15′22″ N, 076°36′36″ W; thence to 39°15′10″ N, 076°36′00″ W; thence to 39°15′40″ N, 076°35′23″ W; thence to 39°15′49″ N, 076°35′47″ W; thence to the point of origin, (Datum NAD 1983), located approximately 600 yards east of Hanover Street (SR-2) Bridge. *(11) Washington Channel, Upper Potomac River, Washington, DC, Safety Zone.* All waters of the Upper Potomac River within a 150 yard radius of the fireworks barge in approximate position 38°52′09″ N, 077°01′13″ W (Datum NAD 1983), located within the Washington Channel in Washington Harbor, DC. *(12) Dukeharts Channel, Potomac River, MD, Safety Zone.* All waters of the Potomac River within a 300 yard radius of the fireworks barge in approximate position 38°13′48″ N, 076°44′37″ W (Datum NAD 1983), located adjacent to Dukeharts Channel near Coltons Point, Maryland. *(13) Severn River and Spa Creek, Annapolis, MD, Safety Zone.* All waters of the Severn River and Spa Creek within an area bounded by a line drawn from 38°58′39.6″ N, 076°28′49″ W; thence to 38°58′41″ N, 076°28′14″ W; thence to 38°59′01″ N, 076°28′37″ W; thence to 38°58′57″ N, 076°28′40″ W (Datum NAD 1983), located near the entrance to Spa Creek in Annapolis, Maryland. *(14) Miles River, St. Michaels, MD, Safety Zone.* All waters of the Miles River within a 200 yard radius of the fireworks barge in approximate position 38°47′42″ N, 076°12′23″ W (Datum NAD 1983), located near the waterfront of St. Michaels, Maryland. *(15) Susquehanna River, Havre de Grace, MD, Safety Zone.* All waters of the Susquehanna River within a 150 yard radius of the fireworks barge in approximate position 39°32′42″ N, 076°04′30″ W (Datum NAD 1983), approximately 800 yards east of the waterfront at Havre de Grace, MD. *(16) Chesapeake Bay, Chesapeake Beach, MD, Safety Zone.* All waters of the Chesapeake Bay within a 150 yard radius of the fireworks barge in approximate position 38°41′33″ N, 076°31′48″ W (Datum NAD 1983), located near Chesapeake Beach, Maryland. *(17) Tred Avon River, Oxford, MD, Safety Zone.* All waters of the Tred Avon River within a 150 yard radius of the fireworks barge in approximate position 38°41′48″ N, 076°10′38″ W (Datum NAD 1983), approximately 500 yards northwest of the waterfront at Oxford, MD. *(18) Choptank River, Cambridge, MD, Safety Zone.* All waters of the Choptank River within a 300 yard radius of the fireworks launch site at Great Marsh Point, located at 38°35′06″ N, 076°04′46″ W (Datum NAD 1983). *(19) Chester River, Kent Island Narrows, MD, Safety Zone.* All waters of the Chester River, within an area bound by a line drawn from the following points: 38°58′50″ N, 076°15′00″ W; thence north to 38°59′00″ N, 076°15′00″ W; thence east to 38°59′00″ N, 076°14′46″ W;, thence southeast to 38°58′50″ N, 076°14′28″ W; thence southwest to 38°58′37″ N, 076°14′36″ W, thence northwest to 38°58′42″ N, 076°14′55″ W, thence to the point of origin, (Datum NAD 1983), located approximately 900 yards north of Kent Island Narrows (US-50/301) Bridge. *(20) Atlantic Ocean, Ocean City, MD, Safety Zone.* All waters of the Atlantic Ocean in an area bound by the following points: 38°19′39.9″ N, 075°05′03.2″ W; thence to 38°19′36.7″ N, 075°04′53.5″ W; thence to 38°19′45.6″ N, 075°04′49.3″ W; thence to 38°19′49.1″ N, 075°05′00.5″ W; (Datum NAD 1983), thence to point of origin. The size of the proposed zone extends approximately 300 yards offshore from the fireworks launch area located at the High Water mark on the beach. *(21) Isle of Wight Bay, Ocean City, MD, Safety Zone.* All waters of Isle of Wight Bay within a 350 yard radius of the fireworks barge in approximate position 38°22′32″ N, 075°04′30″ W (Datum NAD 1983). *(22) Assawoman Bay, Fenwick Island—Ocean City, MD, Safety Zone.* All waters of Assawoman Bay within a 360 yard radius of the fireworks launch location on the pier at the West end of Northside Park, in approximate position 38°25′57.6″ N, 075°03′55.8″ W (Datum NAD 1983). *(23) Atlantic Ocean, Rehoboth Beach, DE, Safety Zone.* All waters of the Atlantic Ocean within a 360 yard radius of the fireworks barge in approximate position 38°43′01.2″ N, 075°04′21″ W (Datum NAD 1983), approximately 400 yards east of Rehoboth Beach, DE. *(24) Indian River Bay, DE, Safety Zone.* All waters of the Indian River Bay within a 360 yard radius of the fireworks launch location on the pier in approximate position 38°36′42″ N, 075°08′18″ W (Datum NAD 1983), about 700 yards east of Pots Net Point, DE. *(25) Little Egg Harbor, Parker Island, NJ, Safety Zone.* All waters of Little Egg Harbor within a 500 yard radius of the fireworks barge in approximate position 39°34′18″ N, 074°14′43″ W (Datum NAD 1983), approximately 100 yards north of Parkers Island. *(26) Barnegat Bay, Ocean Township, NJ, Safety Zone.* All waters of Barnegat Bay within a 500 yard radius of the fireworks barge in approximate position 39°47′33″ N, 074°10′46″ W (Datum NAD 1983). *(27) Delaware Bay, North Cape May, NJ, Safety Zone.* All waters of the Delaware Bay within a 500 yard radius of the fireworks barge in approximate position 38°58′00″ N, 074°58′30″ W (Datum NAD 1983). *(28) Delaware River, Essington, PA, Safety Zone.* All waters of the Delaware River within a 300 yard radius of the fireworks barge in approximate position 39°51′18″ N, 075°18′57″ W (Datum NAD 1983), due west of Little Tinicum Island. *(29) Delaware River, Philadelphia, PA, Safety Zone.* All waters of Delaware River, adjacent to Penns Landing, Philadelphia, PA, bounded from shoreline to shoreline, bounded on the south by a line running east to west from points along the shoreline at 39°56′31.2″ N, 075°08′28.1″ W; thence to 39°56′29.1″ N, 075°07′56.5″ W, and bounded on the north by the Benjamin Franklin Bridge, (Datum NAD 1983). *(30) Chesapeake Bay, Norfolk, VA, Safety Zone.* All waters of the Chesapeake Bay within a 400 yard radius of the fireworks display located in position 36°57′21″ N, 076°15′00″ W (Datum NAD 1983), located near Ocean View Fishing Pier. *(31) Broad Bay, Virginia Beach, VA, Safety Zone.* All waters of the Broad Bay within a 400 yard radius of the fireworks display in approximate position 36°52′08″ N, 076°00′46″ W (Datum NAD 1983), located on the shoreline near the Cavalier Golf and Yacht Club, Virginia Beach, Virginia. *(32) Chickahominy River, Williamsburg, VA, Safety Zone.* All waters of the Chickahominy River within a 400 yard radius of the fireworks display in approximate position 37°14′50″ N, 076°52′17″ W (Datum NAD 1983), near Barrets Point, Virginia. *(33) York River, Yorktown, VA, Safety Zone.* All waters of the York River within a 400 yard radius of the fireworks display in approximate position 37°14′14″ N, 076°30′02″ W (Datum NAD 1983), located near Yorktown, Virginia. *(34) James River, Newport News, VA, Safety Zone.* All waters of the James River within a 325 yard radius of the fireworks barge in approximate position 36°58′30″ N, 076°26′19″ W (Datum NAD 1983), located in the vicinity of the Newport News Shipyard, Newport News, Virginia. *(35) Chesapeake Bay, Virginia Beach, VA, Safety Zone.* All waters of the Chesapeake Bay 400 yard radius of the fireworks display in approximate position 36°55′02″ N, 076°03′27″ W (Datum NAD 1983), located at the First Landing State Park at Virginia Beach, Virginia. *(36) York River, West Point, VA, Safety Zone.* All waters of the York River near West Point, VA within a 400 yard radius of the fireworks display located in approximate position 37°31′25″ N/076°7′19″ W (Datum NAD 1983). *(37) Chincoteague Channel, Chincoteague, VA, Safety Zone.* All waters of the Chincoteague Channel within a 360 yard radius of the fireworks launch location at the Chincoteague carnival waterfront in approximate position 37°55′40.3″ N, 075°23′10.7″ W (Datum NAD 1983), approximately 900 yards southwest of Chincoteague Swing Bridge. *(38) Atlantic Ocean, Virginia Beach, VA, Safety Zone.* All waters of the Atlantic Ocean enclosed within a 360 yard radius of the center located on the beach at approximate position 36°51′34.8″ N, 075°58′30″ W (Datum NAD 1983). *(39) Elizabeth River, Southern Branch, Norfolk, VA, Safety Zone.* All waters of Elizabeth River Southern Branch in an area bound by the following points: 36°50′54.8″ N, 076°18′10.7″ W; thence to 36°51′7.9″ N, 076°18′01″ W; thence to 36°50′45.6″ N, 076°17′44.2″ W; thence to 36°50′29.6″ N, 076°17′23.2″ W; thence to 36°50′7.7″ N, 076°17′32.3″ W; thence to 36°49′58″ N, 076°17′28.6″ W; thence to 36°49′52.6″ N, 076°17′43.8″ W; thence to 36°50′27.2″ N, 076°17′45.3″ W; thence to the point of origin, (Datum NAD 1983). *(40) Morehead City Harbor Channel, NC, Safety Zone.* All waters of Morehead City Harbor Channel that fall within a 360 yard radius of latitude 34°43′01″ N, 076°42′59.6″ W, a position located at the west end of Sugar Loaf Island, NC. *(41) Cape Fear River, Wilmington, NC, Safety Zone.* All waters of the Cape Fear River within an area bound by a line drawn from the following points: 34°14′12″ N, 077°57′07.2″ W; thence to 34°14′12″ N, 077°57′06″ W; thence to 34°13′54″ N, 077°57′00″ W;, thence to 34°13′54″ N, 077°57′06″ W; thence to the point of origin, (Datum NAD 1983), located 500 yards north of Cape Fear Memorial Bridge. *(42) Cape Fear River, Southport, NC, Safety Zone.* All waters of the Cape Fear River within a 600 yard radius of the fireworks barge in approximate position 33°54′40″ N, 078°01′18″ W (Datum NAD 1983), approximately 700 yards south of the waterfront at Southport, NC. *(43) Big Foot Slough, Ocracoke, NC, Safety Zone.* All waters of Big Foot Slough within a 300 yard radius of the fireworks launch site in approximate position 35°06′54″ N, 075°59′24″ W (Datum NAD 1983), approximately 100 yards west of the Silver Lake Entrance Channel at Orcacoke, NC. *(44) Green Creek and Smith Creek, Oriental, NC, Safety Zone.* All waters of Green Creek and Smith Creek that fall within a 300 yard radius of the fireworks launch site at 35°01′29.6″ N, 076°42′10.4″ W (Datum NAD 1983), located near the entrance to the Neuse River in the vicinity of Oriental, NC. *(45) Pasquotank River, Elizabeth City, NC, Safety Zone.* All waters of the Pasquotank River with a 300 yard radius of the fireworks launch site in approximate position 36°18′00″ N, 076°13′00″ W (Datum NAD 1983), approximately 200 yards south of the east end of the Elizabeth City Bascule Bridges. *(46) Currituck Sound, Corolla, NC, Safety Zone.* All waters of the Croatan Sound with a 300 yard radius of the fireworks barge in approximate position 36°22′48″ N, 075°51′15″ W (Datum NAD 1983). *(47) Middle Sound, Figure Eight Island, NC, Safety Zone.* All waters of the Figure Eight Island Causeway Channel from latitude 34°16″32″ N, 077°45′32″ W, thence east along the marsh to a position located at 34°16′19″ N, 077°44′55″ W, thence south to the causeway at position 34°16′16″ N, 077°44′58″ W, thence west along the shoreline to position 34°16′29″ N, 077°45′34″ W (Datum NAD 1983), thence back to the point of origin. *(48) Pamlico River, Washington, NC, Safety Zone.* All waters of the Pamlico River that fall within a 300 yard radius of the fireworks launch site at 35°32′19″ N, 077°3′20.5″ W (Datum NAD 1983), located 500 yards north of Washington railroad trestle bridge. *(49) Neuse River, New Bern, NC, Safety Zone.* All waters of the Neuse River within a 360 yard radius of the fireworks barge in approximate position 35°06′07.1″ N, 077°01′35.8″ W (Datum NAD 1983); located 420 yards north of the New Bern, Twin Span, high rise bridge.
(b)*Notification.*
(1)Fireworks barges and launch sites on land in paragraph
(a)of this section will have a sign on the port and starboard side of the barge or mounted on a post 3 foot above ground level when on land and facing the water labeled “Fireworks—Danger—Stay Away”. This will provide on scene notice that the safety zone will be enforced on that day. This notice will consist of a diamond shaped sign 4 foot by 4 foot with a 3-inch orange retro reflective border. The word “Danger” shall be 10 inch black block letters centered on the sign with the words “Fireworks” and “Stay Away” in 6 inch black block letters placed above and below the word “Danger” respectively on a white background.
(2)Coast Guard Captains of the Port in the Fifth Coast Guard District will notify the public of the enforcement of these safety zones by all appropriate means to effect the widest publicity among the affected segments of the public. Publication in the local notice to mariners, marine information broadcasts, and facsimile broadcasts may be made for these events, beginning 24 to 48 hours before the event is scheduled to begin, to notify the public.
(c)*Enforcement Period.* The safety zones in paragraph
(a)of this section will be enforced from 5:30 p.m. to 1 a.m. each day a barge with a “Fireworks—Danger—Stay Away” sign on the port and starboard side is on-scene or a “Fireworks—Danger—Stay Away” sign is posted on land, in a location listed in paragraph
(a)of this section. Vessels may not enter, remain in, or transit through the safety zones during these enforcement periods unless authorized by the Captain of the Port or designated Coast Guard patrol personnel on scene.
(d)*Regulations.*
(1)The general regulations contained in 33 CFR 165.23 apply.
(2)All persons and vessels shall comply with the instructions of the Coast Guard Captain of the Port or the designated on-scene-patrol personnel. Those personnel are compromised of commissioned, warrant, and petty officers of the Coast Guard. Other Federal, State and local agencies may assist these personnel in the enforcement of the safety zone. Upon being hailed by the U.S. Coast Guard vessel by siren, radio, flashing light or other means, the operator of a vessel shall proceed as directed. Dated: October 18, 2006. Larry L. Hereth, Rear Admiral, U.S. Coast Guard, Commander, Fifth Coast Guard District. [FR Doc. E6-18516 Filed 11-2-06; 8:45 am] BILLING CODE 4910-15-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R03-OAR-2006-0629; FRL-8239-1] Approval and Promulgation of Air Quality Implementation Plans; Maryland; Nitrogen Oxides Allowance Allocations for 2008 AGENCY: Environmental Protection Agency (EPA). ACTION: Proposed rule. SUMMARY: EPA proposes to approve the State Implementation Plan
(SIP)revision submitted by the State of Maryland for the purpose of establishing Nitrogen Oxides (NO <sup>X</sup> ) allowance allocations for the 2008 ozone season, in accordance with Maryland's approved NO <sup>X</sup> SIP Call trading program. In the Final Rules section of this **Federal Register,** EPA is approving the State's SIP submittal as a direct final rule without prior proposal because the Agency views this as a noncontroversial submittal and anticipates no adverse comments. A more detailed description of the State submittal and EPA's evaluation are included in a Technical Support Document
(TSD)prepared in support of this rulemaking action. If no adverse comments are received in response to this action, no further activity is contemplated. If EPA receives adverse comments, the direct final rule will be withdrawn and all public comments received will be addressed in a subsequent final rule based on this proposed rule. EPA will not institute a second comment period. Any parties interested in commenting on this action should do so at this time. DATES: Comments must be received in writing by December 4, 2006. ADDRESSES: Submit your comments, identified by Docket ID Number EPA-R03-OAR-2006-0629 by one of the following methods: A. *www.regulations.gov.* Follow the on-line instructions for submitting comments. B. *E-mail: morris.makeba@epa.gov.* C. *Mail:* EPA-R03-OAR-2006-0629, Makeba Morris, Chief, Air Quality Planning Branch, Mailcode 3AP21, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103. D. *Hand Delivery:* At the previously-listed EPA Region III address. Such deliveries are only accepted during the Docket's normal hours of operation, and special arrangements should be made for deliveries of boxed information. *Instructions:* Direct your comments to Docket ID No. EPA'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 website is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going through *www.regulations.gov,* your e-mail address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. *Docket:* All documents in the electronic docket are listed in the *www.regulations.gov index.* Although listed in the index, some information is not publicly available, *i.e.,* CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically in www.regulations.gov or in hard copy during normal business hours at the Air Protection Division, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103. Copies of the State submittal are available at the Maryland Department of the Environment, 1800 Washington Boulevard, Suite 705, Baltimore, Maryland. FOR FURTHER INFORMATION CONTACT: Marilyn Powers,
(215)814-2308, or by e-mail at *powers.marilyn@epa.gov.* SUPPLEMENTARY INFORMATION: For further information, please see the information provided in the direct final action, with the same title, that is located in the “Rules and Regulations” section of this **Federal Register** publication. Dated: October 26, 2006. Donald S. Welsh, Regional Administrator, Region III. [FR Doc. E6-18502 Filed 11-2-06; 8:45 am] BILLING CODE 6560-50-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 82 [EPA-HQ-OAR-2006-0159; FRL-8239-6] RIN 2060-AN81 Protection of Stratospheric Ozone: Allocation of Essential Use Allowances for Calendar Year 2007 AGENCY: Environmental Protection Agency (EPA). ACTION: Proposed rule. SUMMARY: EPA is proposing to allocate essential use allowances for import and production of class I stratospheric ozone depleting substances
(ODSs)for calendar year 2007. Essential use allowances enable a person to obtain controlled class I ODSs as part of an exemption to the regulatory ban on the production and import of these chemicals, which became effective as of January 1, 1996. EPA allocates essential use allowances for exempted production or import of a specific quantity of class I ODSs solely for the designated essential purpose. The proposed allocations total 125.3 metric tons
(MT)of chlorofluorocarbons
(CFCs)for use in metered dose inhalers
(MDIs)for 2007. DATES: Written comments on this proposed rule must be received by the EPA Docket on or before December 4, 2006, unless a public hearing is requested. Comments must then be received on or before 30 days following the public hearing. Any party requesting a public hearing must notify the contact listed below under **“For Further Information Contact”** by 5 p.m. Eastern Standard Time on November 7, 2006. If a hearing is held, it will take place on November 20, 2006 at EPA headquarters in Washington, DC. EPA will post a notice on our Web site ( *http://www.epa.gov/ozone* ) announcing further information on the hearing if it is requested. ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-OAR-2006-0159, by one of the following methods: • *http://www.regulations.gov:* Follow the on-line instructions for submitting comments. • *E-mail: A-and-R-docket@epa.gov.* • *Fax:* 202-343-2338, attn: Kirsten M. Cappel. • *Mail:* Air Docket, Environmental Protection Agency, Mailcode 6102T, 1200 Pennsylvania Ave., NW., Washington, DC 20460. • *Hand Delivery or Courier:* Deliver your comments to: EPA Air Docket, EPA West, 1301 Constitution Avenue, NW., Room B108, Mail Code 6102T, Washington, DC 20460. Such deliveries are only accepted during the Docket's normal hours of operation, and special arrangements should be made for deliveries of boxed information. *Instructions:* Direct your comments to Docket ID No. EPA-HQ-OAR-2006-0159. 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.* *Docket:* All documents in the docket are listed in the *www.regulations.gov* index. Although listed in the index, some information is not publicly available, *e.g.* , CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, will be publicly available only in hard copy. Publicly available docket materials are available either electronically in *www.regulations.gov* or in hard copy at the Air Docket, EPA/DC, EPA West, Room B102, 1301 Constitution Ave., NW., Washington, DC. This Docket Facility is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is
(202)566-1744, and the telephone number for the Air Docket is
(202)566-1742. FOR FURTHER INFORMATION CONTACT: Kirsten M. Cappel, by regular mail: U.S. Environmental Protection Agency, Stratospheric Protection Division (6205J), 1200 Pennsylvania Avenue, NW., Washington, DC 20460; by courier service or overnight express: 1301 L Street, NW., Room 827J, Washington, DC 20005, by telephone: 202-343-9556; or by e-mail: *cappel.kirsten@epa.gov.* SUPPLEMENTARY INFORMATION: Table of Contents I. General Information A. What should I consider when preparing my comments? II. Basis for Allocating Essential Use Allowances A. What are essential use allowances? B. Under what authority does EPA allocate essential use allowances? C. What is the process for allocating essential use allowances? III. Essential Use Allowances for Medical Devices IV. Proposed Allocation of Essential Use Allowances for Calendar Year 2007 V. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Review B. Paperwork Reduction Act C. Regulatory Flexibility Act D. Unfunded Mandates Reform Act E. Executive Order 13132: Federalism F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments G. Executive Order 13045: Protection of Children From Environmental Health Risks and Safety Risks H. Executive Order 13211: Actions That Significantly Affect Energy Supply, Distribution, or Use I. National Technology Transfer and Advancement Act I. General Information A. What should I consider when preparing my comments? 1. *Confidential Business Information.* 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: • Identify the rulemaking by docket number and other identifying information (subject heading, **Federal Register** date and page number). • 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. • Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes. • Describe any assumptions and provide any technical information and/or data that you used. • If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced. • Provide specific examples to illustrate your concerns, and suggest alternatives. • Explain your views as clearly as possible, avoiding the use of profanity or personal threats. • Make sure to submit your comments by the comment period deadline identified. II. Basis for Allocating Essential Use Allowances A. What are essential use allowances? Essential use allowances are allowances to produce or import certain ODSs in the U.S. for purposes that have been deemed “essential” by the U.S. Government and by the Parties to the Montreal Protocol on Substances that Deplete the Ozone Layer (Montreal Protocol). The Montreal Protocol is the international agreement aimed at reducing and eliminating the production and consumption 1 of ODSs. The elimination of production and consumption of class I ODSs is accomplished through adherence to phaseout schedules for specific class I ODSs, 2 which include CFCs, halons, carbon tetrachloride, and methyl chloroform. As of January 1, 1996, production and import of most class I ODSs were phased out in developed countries, including the United States. 1 “Consumption” is defined as the amount of a substance produced in the United States, plus the amount imported into the United States, minus the amount exported to Parties to the Montreal Protocol (see Section 601(6) of the Clean Air Act). 2 Class I ozone depleting substances are listed at 40 CFR Part 82, subpart A, appendix A. However, the Montreal Protocol and the Clean Air Act
(Act)provide exemptions that allow for the continued import and/or production of class I ODSs for specific uses. Under the Montreal Protocol, exemptions may be granted for uses that are determined by the Parties to be “essential.” Decision IV/25, taken by the Parties to the Protocol in 1992, established criteria for determining whether a specific use should be approved as essential, and set forth the international process for making determinations of essentiality. The criteria for an essential use, as set forth in paragraph 1 of Decision IV/25, are the following:
(a)That a use of a controlled substance should qualify as “essential” only if:
(i)It is necessary for the health, safety or is critical for the functioning of society (encompassing cultural and intellectual aspects); and
(ii)there are no available technically and economically feasible alternatives or substitutes that are acceptable from the standpoint of environment and health;
(b)that production and consumption, if any, of a controlled substance for essential uses should be permitted only if:
(i)all economically feasible steps have been taken to minimize the essential use and any associated emission of the controlled substance; and
(ii)the controlled substance is not available in sufficient quantity and quality from existing stocks of banked or recycled controlled substances, also bearing in mind the developing countries' need for controlled substances. B. Under what authority does EPA allocate essential use allowances? Title VI of the Act implements the Montreal Protocol for the United States. 3 Section 604(d) of the Act authorizes EPA to allow the production of limited quantities of class I ODSs after the phase out date for the following essential uses: 3 *See* Section 614(b) of the Act. EPA's regulations implementing the essential use provisions of the Act and the Protocol are located in 40 CFR part 82.
(1)Methyl Chloroform, “solely for use in essential applications (such as nondestructive testing for metal fatigue and corrosion of existing airplane engines and airplane parts susceptible to metal fatigue) for which no safe and effective substitute is available.” Under section 604(d)(1) of the Act, this exemption was available only until January 1, 2005. Prior to that date, EPA issued methyl chloroform allowances to the U.S. Space Shuttle and Titan Rocket programs.
(2)Medical Devices (as defined in section 601(8) of the Act), “if such authorization is determined by the Commissioner [of the Food and Drug Administration], in consultation with the Administrator [of EPA] to be necessary for use in medical devices.” EPA issues allowances to manufacturers of MDIs that use CFCs as propellant for the treatment of asthma and chronic obstructive pulmonary diseases.
(3)Aviation Safety, for which limited quantities of halon-1211, halon-1301, and halon-2402 may be produced “if the Administrator of the Federal Aviation. Administration, in consultation with the Administrator [of EPA] determines that no safe and effective substitute has been developed and that such authorization is necessary for aviation safety purposes.” Neither EPA nor the Parties have ever granted a request for essential use allowances for halon, because alternatives are available or because existing quantities of this substance are large enough to provide for any needs for which alternatives have not yet been developed. An additional essential-use exemption under the Protocol, as agreed in Decision X/19, is the general exemption for laboratory and analytical uses. This exemption is reflected in EPA's regulations at 40 CFR part 82, subpart A. While the Act does not specifically provide for this exemption, EPA has determined that an exemption for essential laboratory and analytical uses is allowable under the Act as a *de minimis* exemption. The *de minimis* exemption is addressed in EPA's final rule of March 13, 2001 (66 FR 14760-14770). The Parties to the Protocol subsequently agreed (Decision XI/15) that the general exemption does not apply to the following uses: testing of oil and grease, and total petroleum hydrocarbons in water; testing of tar in road-paving materials; and forensic finger-printing. EPA incorporated this exemption at Appendix G to Subpart A of 40 CFR part 82 on February 11, 2002 (67 FR 6352). In a December 29, 2005 final rule, EPA extended the general exemption for laboratory and analytical uses through December 31, 2007 (70 FR 77048), in accordance with Decision XV/8 of the Parties to the Protocol. C. What is the process for allocating essential use allowances? The procedure set out by Decision IV/25 calls for individual Parties to nominate essential uses and the total amount of ODSs needed for those essential uses on an annual basis. The Protocol's Technology and Economic Assessment Panel
(TEAP)evaluates the nominated essential uses and makes recommendations to the Protocol Parties. The Parties make the final decisions on whether to approve a Party's essential use nomination at their annual meeting. This nomination cycle occurs approximately two years before the year in which the allowances would be in effect. The allowances allocated through today's action were first nominated by the United States in January 2005. For MDIs, EPA requests information from manufacturers about the number and type of MDIs they plan to produce, as well as the amount of CFCs necessary for production. EPA then forwards the information to the Food and Drug Administration (FDA), which determines the amount of CFCs necessary for MDIs in the coming calendar year. Based on FDA's determination, EPA proposes allocations to each eligible entity. Under the Act and the Protocol, EPA may allocate essential use allowances in quantities that together are below or equal to the total amount approved by the Parties. EPA will not allocate essential use allowances in amounts higher than the total approved by the Parties. For 2007, the Parties authorized the United States to allocate up to 1,000 MT of CFCs for essential uses. III. Essential Use Allowances for Medical Devices The following is a step-by-step list of actions EPA and FDA have taken thus far to implement the exemption for medical devices found at section 604(d)(2) of the Act for the 2007 control period. 1. On January 25, 2006, EPA sent letters to MDI manufacturers requesting the following information under section 114 of the Act (“114 letters”): a. The MDI product where CFCs will be used. b. The number of units of each MDI product produced from 1/1/05 to 12/31/05. c. The number of units anticipated to be produced in 2006. d. The gross target fill weight per unit (grams). e. Total amount of CFCs to be contained in the MDI product for 2007. f. The additional amount of CFCs necessary for production. g. The total CFC request per MDI product for 2007. The 114 letters are available for review in the Air Docket ID No. EPA-HQ-OAR-2006-0159. The companies requested that their responses be treated as confidential business information; for this reason, EPA has placed the responses in the confidential portion of the docket. 2. On March 23, 2006, EPA sent FDA the information MDI manufacturers provided in response to the 114 letters with a letter requesting that FDA make a determination regarding the amount of CFCs necessary for MDIs for calendar year 2007. This letter is available for review in Air Docket ID No. EPA-HQ-OAR-2006-0159. 3. On May 10, 2006, under section 114 of the Act, EPA sent letters to MDI manufacturers requesting information on the amount and type of CFC stocks owned by the company. EPA requested CFC stock information pertaining to amounts and types of CFCs, pre-1996 CFCs and post-1996 CFCs, held by each company as of May 1, 2006. The purpose of this request was to gather additional data to assist EPA and FDA to determine the size of the 2007 essential use allocation exemption. The 114 letters are available for review in the Air Docket ID No. EPA-HQ-OAR-2006-0159. The companies requested that their responses be treated as confidential business information; for this reason, EPA has placed the responses in the confidential portion of the docket. 4. On September 28, 2006, FDA sent a letter to EPA stating the amount of CFCs determined by the Commissioner to be necessary for each MDI company in 2007. This letter is available for review in the Air Docket ID No. EPA-HQ-OAR-2006-0159. In their letter, FDA informed EPA that they had determined that 125.3 MT of CFCs were necessary for use in MDIs in 2007. The letter stated “Our determination for the allocation of CFCs is lower than the total amount requested by manufacturers. In reaching this estimate, we took into account the manufacturers' production of MDIs that used CFCs as a propellant in 2005, their estimated production in 2006, their estimated production in 2007, and their current (as of May 1, 2006) stockpile levels. We have also taken into account that roughly 40 percent of the albuterol MDIs currently being produced use HFA-134a as their propellant. We have also based our determination for 2007 on an estimate of the quantity of CFCs that would allow manufacturers to maintain as much as a 12-month stockpile in accordance with paragraph 3 of Decision XVI/12 and paragraph 2 of Decision XVII/5.” The letter stated that the following assumptions were made in reaching the determination for 2007: • All manufacturers will procure the full quantity of CFCs allocated to them for the year 2007. • The number of albuterol CFC MDIs produced in the remainder of 2006 and in 2007 will be 40 percent of the total number of albuterol MDIs produced in those periods, and the number of albuterol CFC MDIs produced in 2008 will be no more than half of the number produced in 2007, with albuterol HFA MDIs making up the remainder. • No bulk CFCs currently held by, or allocated to, any manufacturer will be exported from the United States. FDA informed EPA that the second assumption was based on an average for the period of May 1, 2006, through December 31, 2006, and the full 2007 control period. Thus, CFC MDIs are expected to decline from 60% of the total number of albuterol MDIs, as estimated currently, to less than 40% by the end of 2007, which is the end of the averaging period. EPA has confirmed with FDA that this determination is consistent with Decision XVII/5, including language on stocks that states that “Parties shall take into account pre- and post-1996 stocks of controlled substances as described in paragraph 1
(b)of decision IV/25, such that no more than a one-year operational supply is maintained by that manufacturer.” In their analysis of a one-year operational supply of CFCs for the production of CFC albuterol MDIs, FDA and EPA took into account that the production of these MDIs would continue to decrease as December 31, 2008, nears, thus requiring a reduced amount of CFCs. In accordance with the FDA determination, today's action proposes to allocate essential use allowances for a total of 125.3 MT of CFCs for use in MDIs for calendar year 2007. The amounts listed in this proposal are subject to additional review, and revision, by EPA and FDA if information demonstrates that the proposed allocations are either too high or too low. We specifically request comment on the extent to which the proposed allocation of CFCs is sufficient to protect the public health and ensure the manufacture and continuous availability of CFCs necessary to meet the expected demand. We also request comment on whether the proposed allocations (along with current stocks)—or an alternative level—will best protect consumers by providing a smooth transition to non-CFC alternatives. Commenters requesting increases or decreases of essential use allowances should provide detailed information supporting their claim for additional or fewer CFCs. Any company that needs less than the full amount listed in this proposal should notify EPA of the actual amount needed. IV. Proposed Allocation of Essential Use Allowances for Calendar Year 2007 Table I.—Essential Use Allowances for Calendar Year 2007 Company Chemical 2007 Quantity (metric tons)
(i)Metered Dose Inhalers (for Oral Inhalation) for Treatment of Asthma and Chronic Obstructive Pulmonary Disease Armstrong Pharmaceuticals CFC-11 or CFC-12 or CFC-114 0.0 Boehringer Ingelheim Pharmaceuticals CFC-11 or CFC-12 or CFC-114 0.0 Inyx (Aventis) CFC-11 or CFC-12 or CFC-114 39.6 Schering-Plough Corporation CFC-11 or CFC-12 or CFC-114 0.0 3M Pharmaceuticals CFC-11 or CFC-12 or CFC-114 45.7 Wyeth CFC-11 or CFC-12 or CFC-114 40.0 EPA proposes to allocate essential use allowances for calendar year 2007 to the entities listed in Table 1. These allowances are for the production or import of the specified quantity of class I controlled substances solely for the specified essential use. V. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Review This action is not a “significant regulatory action” under the terms of Executive Order
(EO)12866 (58 FR 51735, October 4, 1993) and is therefore not subject to review under the EO. EPA prepared an analysis of the potential costs and benefits related to this action. This analysis is contained in the Agency's Regulatory Impact Analysis
(RIA)for the entire Title VI phaseout program (U.S. Environmental Protection Agency, “Regulatory Impact Analysis: Compliance with Section 604 of the Clean Air Act for the Phaseout of Ozone Depleting Chemicals,” July 1992). A copy of the analysis is available in the docket for this action and the analysis is briefly summarized here. The RIA examined the projected economic costs of a complete phaseout of consumption of ozone-depleting substances, as well as the projected benefits of phased reductions in total emissions of CFCs and other ozone-depleting substances, including essential-use CFCs used for metered-dose inhalers. B. Paperwork Reduction Act This action does not impose any new information collection burden. The recordkeeping and reporting requirements included in this action are already included in an existing information collection burden and this action does not make any changes that would affect the burden. However, the Office of Management and Budget
(OMB)has previously approved the information collection requirements contained in the existing regulations at 40 CFR 82.8(a) under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 *et seq.* and has assigned OMB control number 2060-0170, EPA ICR number 1432.25. A copy of the OMB approved Information Collection Request
(ICR)may be obtained from Susan Auby, Collection Strategies Division; U.S. Environmental Protection Agency (2822T); 1200 Pennsylvania Ave., NW., Washington, DC 20460 or by calling
(202)566-1672. Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information. An agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations in 40 CFR are listed in 40 CFR part 9. C. Regulatory Flexibility Act The RFA generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions. For purposes of assessing the impact of today's rule on small entities, small entity is defined as:
(1)Pharmaceutical preparations manufacturing businesses (NAICS code 325412) that have less than 750 employees;
(2)a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and
(3)a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant its field. After considering the economic impacts of today's proposed rule on small entities, I certify that this action will not have a significant economic impact on a substantial number of small entities. In determining whether a rule has a significant economic impact on a substantial number of small entities, the impact of concern is any significant adverse economic impact on small entities, since the primary purpose of the regulatory flexibility analyses is to identify and address regulatory alternatives “which minimize any significant economic impact of the rule on small entities.” 5 U.S.C. 603 and 604. Thus, an agency may certify that a rule will not have a significant economic impact on a substantial number of small entities if the rule relieves regulatory burden, or otherwise has a positive economic effect on all of the small entities subject to the rule. This proposed rule provides an otherwise unavailable benefit to those companies that are receiving essential use allowances by creating an exemption to the regulatory phaseout of chlorofluorocarbons. We have therefore concluded that today's proposed rule will relieve regulatory burden for all small entities. We continue to be interested in the potential impact of the proposed rule on small entities and welcome comments on issues related to such impacts. D. Unfunded Mandates Reform Act Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Pub L. 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector. Under section 202 of the UMRA, EPA generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures to State, local, and tribal governments, in the aggregate, or to the private sector, of $100 million or more in any one year. Before promulgating an EPA rule for which a written statement is needed, section 205 of the UMRA generally requires EPA to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective, or least burdensome alternative that achieves the objectives of the rule. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows EPA to adopt an alternative other than the least costly, most cost-effective, or least burdensome alternative, if the Administrator publishes with the final rule an explanation why that alternative was not adopted. Before EPA establishes any regulatory requirements that may significantly or uniquely affect small governments, including tribal governments, it must have developed a small government agency plan under section 203 of the UMRA. The plan must provide for notifying potentially affected small governments, enabling officials of affected small governments to have meaningful and timely input in the development of EPA regulatory proposals with significant Federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements. Today's proposed rule contains no Federal mandates (under the regulatory provisions of Title II of the UMRA) for State, local, or tribal governments or the private sector, since it merely provides exemptions from the 1996 phase out of class I ODSs. Similarly, EPA has determined that this rule contains no regulatory requirements that might significantly or uniquely affect small governments, because this rule merely allocates essential use exemptions to entities as an exemption to the ban on production and import of class I ODSs. E. Executive Order 13132: Federalism Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” This proposed rule does not have federalism implications. It will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. Thus, Executive Order 13132 does not apply to this rule. F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000), requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” This proposed rule does not have tribal implications, as specified in Executive Order 13175. Today's proposed rule affects only the companies that requested essential use allowances. Thus, Executive Order 13175 does not apply to this rule. G. Executive Order 13045: Protection of Children From Environmental Health Risks and Safety Risks Executive Order 13045: “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997) applies to any rule that:
(1)Is determined to be “economically significant” under E.O. 12866, and
(2)concerns an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, the Agency must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency. EPA interprets E.O. 13045 as applying only to those regulatory actions that are based on health or safety risks, such as the analysis required under section 5-501 of the Order has the potential to influence the regulation. This proposed rule is not subject to E.O. 13045 because it implements Section 604(d)(2) of the Clean Air Act which states that the Agency shall authorize essential use exemptions should the Food and Drug Administration determine that such exemptions are necessary. H. Executive Order 13211: Actions That Significantly Affect Energy Supply, Distribution, or Use This proposed 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) because it is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The rule affects only the pharmaceutical companies that requested essential use allowances. I. National Technology Transfer and Advancement Act Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law No. 104-113, section 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards ( *e.g.* , materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies. The NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards. This proposed rule does not involve technical standards. Therefore, EPA did not consider the use of any voluntary consensus standards. List of Subjects in 40 CFR Part 82 Administrative practice and procedure, Air pollution control, Chemicals, Chlorofluorocarbons, Environmental protection, Imports, Methyl Chloroform, Ozone, Reporting and recordkeeping requirements. Dated: October 30, 2006. Stephen L. Johnson, Administrator. 40 CFR Part 82 is proposed to be amended as follows: PART 82—PROTECTION OF STRATOSPHERIC OZONE 1. The authority citation for part 82 continues to read as follows: Authority: 42 U.S.C. 7414, 7601, 7671-7671q. Subpart A—Production and Consumption Controls 2. Section 82.8 is amended by revising the table in paragraph
(a)to read as follows: § 82.8 Grants of essential use allowances and critical use allowances.
(a)* * * Table I.—Essential Use Allowances for Calendar Year 2007 Company Chemical 2007 Quantity (metric tons)
(i)Metered Dose Inhalers (for Oral Inhalation) for Treatment of Asthma and Chronic Obstructive Pulmonary Disease Armstrong Pharmaceuticals CFC-11 or CFC-12 or CFC-114 0.0 Boehringer Ingelheim Pharmaceuticals CFC-11 or CFC-12 or CFC-114 00.0 Inyx (Aventis) CFC-11 or CFC-12 or CFC-114 39.6 Schering-Plough Corporation CFC-11 or CFC-12 or CFC-114 0.0 3M Pharmaceuticals CFC-11 or CFC-12 or CFC-114 45.7 Wyeth CFC-11 or CFC-12 or CFC-114 40.0 [FR Doc. E6-18581 Filed 11-2-06; 8:45 am] BILLING CODE 6560-50-P DEPARTMENT OF HOMELAND SECURITY Federal Emergency Management Agency 44 CFR Part 67 [Docket No. FEMA-B-7472] Proposed Flood Elevation Determinations AGENCY: Federal Emergency Management Agency (FEMA), Department of Homeland Security, Mitigation Division. ACTION: Proposed rule. SUMMARY: Technical information or comments are requested on the proposed Base (1% annual chance) Flood Elevations
(BFEs)and proposed BFEs modifications for the communities listed below. The BFEs are the basis for the floodplain management measures that the 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). DATES: The comment period is ninety
(90)days following the second publication of this proposed rule in a newspaper of local circulation in each community. ADDRESSES: The proposed 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 proposes to make determinations of BFEs and modified BFEs for each community listed below, in accordance with Section 110 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and 44 CFR 67.4(a). These proposed BFEs and modified BFEs, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own, or pursuant to policies established by other Federal, state or regional entities. These proposed elevations are used to meet the floodplain management requirements of the NFIP and are also used to calculate the appropriate flood insurance premium rates for new buildings built after these elevations are made final, and for the contents in these buildings. *National Environmental Policy Act.* This proposed 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 proposed 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 proposed to be 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. § 67.4 [Amended] 2. The tables published under the authority of § 67.4 are proposed to be amended as follows: State City/town/county Source of flooding Location # Depth in feet above ground. * Elevation in feet
(NGVD)+ Elevation in feet
(NAVD)Existing Modified Town of North Canaan, Connecticut Connecticut Town of North Canaan Blackberry River Approximately 700 feet downstream of Route 44 None +656 Approximately 1,050 feet upstream of Route 7 None +672 * National Geodetic Vertical Datum. # Depth in feet above ground. + North American Vertical Datum. ADDRESSES Maps are available for inspection at Town Hall, 100 Pease Street, Canaan, Connecticut 06018. Send comments to Ms. Ruth Mulcahy, Zoning Enforcement Officer, Town of North Canaan, Town Hall, P.O. Box 876, Canaan, CT 06018. Town of Whitehall, Montana Montana Town of Whitehall Whitetail Creek Approximately 1.98 miles downstream of Highway 55 None +4,333 Approximately 1.1 miles upstream of Interstate 90 West Bound None +4,386 * National Geodetic Vertical Datum. # Depth in feet above ground. + North American Vertical Datum. ADDRESSES Maps are available for inspection at: Town Hall, 2 North Whitehall, Whitehall, MT. Send comments to: The Honorable Terry Ross, Mayor, City of Whitehall, P.O. Box 529, Whitehall, Montana 59759. Flooding sources(s) Location of referenced elevation *Elevation in feet
(NGVD)+ Elevation in feet
(NAVD)# Depth in feet above ground Effective Modified Communities affected Marengo County, Alabama, and Incorporated Areas Falling Creek Approximately 3250 feet downstream of Whitfield Canal None +150 City of Demopolis. Approximately 500 feet downstream of Whitfield Canal None +154 Tombigbee River Demopolis Lock and Dam None +94 City of Demopolis. Confluence with Short Creek None +94 * National Geodetic Vertical Datum. # Depth in feet above ground. + North American Vertical Datum. ADDRESSES City of Demopolis Maps are available for inspection at 211 N. Walnut Avenue, Demopolis, AL 36732. Send comments to Cecil Williamson, Mayor, City of Demopolis, 211 N. Walnut Avenue, Demopolis, AL 36732. Washington County, Arkansas, and Incorporated Areas Brush Creek At intersection with Interstate 540 *1303 +1304 City of Springdale. Approximately 150 feet downstream of Gutensohn *1336 +1334 Brush Creek Tributary Approximately 125 feet upstream of Force-Main Crossing *1321 +1317 City of Springdale. At intersection with Gutensohn Road *1329 +1326 Mud Creek Approximately 50 feet upstream of Gregg Street *1182 +1183 City of Fayetteville. At intersection with College Avenue *1196 +1203 City of Johnson. West Fork White River Approximately 0.5 miles upstream from confluence with White River *1169 +1173 City of Fayetteville. Approximately 1500 feet downstream from the intersection with Harvey Owl Road *1172 +1173 * National Geodetic Vertical Datum. # Depth in feet above ground. + North American Vertical Datum. ADDRESSES City of Fayetteville Maps are available for inspection at 113 West Mountain, Fayetteville, AR 72701. Send comments to The Honorable Dan Coody, Mayor, City of Fayetteville, 113 West Mountain, Fayetteville, AR 72701. City of Johnson Maps are available for inspection at 2904 Main Dr., Johnson, AR 72741. Send comments to The Honorable Richard Long, Mayor, The City of Johnson, 2904 Main Dr., PO Box 563, Johnson, AR 72741. City of Springdale Maps are available for inspection at 201 North Spring Street, Springdale, AR 72764. Send comments to The Honorable Jerre Van Hoose, Mayor, City of Springdale, 201 North Spring Street, Springdale, AR 72764. Sutter County, California, and Incorporated Areas Bear River Approximately 0.9 miles upstream of the confluence with Feather River None *54 Sutter County. At Wheatland Road None *96 Feather River At the confluence with Sacramento River None *40 Sutter County. Approximately 1.5 miles upstream of Bogue Road None *72 Yankee Slough At the confluence with Bear River None *58 Sutter County. Approximately 1.1 miles upstream of Brewer Road None *75 * National Geodetic Vertical Datum. # Depth in feet above ground. + North American Vertical Datum. ADDRESSES Sutter County Maps are available for inspection at the Sutter County Administrators Office, 1160 Civic Center Boulevard, Suite A, Yuba City, California 95993. Send comments to Mr. Larry Combs, Sutter County Executive Officer, 1160 Civic Center Boulevard, Suite A, Yuba City, Calfornia 95993. Yuba County, California, and Incorporated Areas Bear River At the confluence with Feather River None *53 Yuba County. Approximately 1.0 mile upstream of the confluence of Dry Creek None *69 Best Slough At the confluence with Western Pacific Interceptor Channel None *61 Yuba County. Approximately 1.2 miles upstream of the confluence with Western Pacific Interceptor Channel None *61 Dry Creek At the confluence with Bear River None *66 Yuba County. Just Downstream of Highway 65 None *67 Feather River Approximately 1.5 miles downstream of the confluence of Bear River None *52 Yuba County. Approximately 0.9 miles upstream of Island Avenue None *72 Western Pacific Interceptor Channel At the confluence with Bear River None *60 Yuba County. Approximately 2.7 miles upstream of the confluence of Best Slough None *61 * National Geodetic Vertical Datum. # Depth in feet above ground. + North American Vertical Datum. ADDRESSES Yuba County Maps are available for inspection at the Yuba County Government Center, Administrators Office, 915 Eighth Street, Suite 115, Marysville, CA 95901. Send comments to Mr. Robert Bendorf, Chief County Administrator, 915 Eighth Street, Suite 115, Marysville, CA 95901. Columbia County, Georgia, and Incorporated Areas Bonaire Heights Tributary At the confluence with Wynngate Tributary +271 +272 Columbia County (Unincorporated Areas). Approximately 375 feet upstream of the confluence with Wynngate Tributary +271 +272 Furys Ferry Road Tributary East At the confluence with Reed Creek +211 +210 Columbia County (Unincorporated Areas). Approximately 100 feet upstream of the confluence with Reed Creek +211 +210 Gibbs Road Tributary At the confluence with Bettys Branch +290 +291 Columbia County (Unincorporated Areas). Approximately 130 feet upstream of the confluence with Bettys Branch +290 +291 Holiday Park Tributary At the confluence with Reed Creek +300 +301 Columbia County (Unincorporated Areas). Approximately 1,450 feet upstream of the confluence with Reed Creek +300 +301 Jones Creek At the confluence with Savannah River +192 +193 Columbia County (Unincorporated Areas). Approximately 3,290 feet upstream of the confluence with Savannah River +192 +193 Tributary No. 2 At the confluence with Jones Creek +258 +259 Columbia County (Unincorporated Areas). Approximately 70 feet upstream of the confluence with Jones Creek +258 +259 Tributary No. 3 At the confluence with Jones Creek +270 +269 Columbia County (Unincorporated Areas). Approximately 20 feet upstream of the confluence with Jones Creek +270 +269 Owens Road Tributary At the confluence with Holiday Park Tributary +321 +322 Columbia County (Unincorporated Areas). Approximately 210 feet upstream of the confluence with Holiday Park Tributary +321 +322 Seaboard Railroad Tributary At the confluence with Jones Creek +226 +225 Columbia County (Unincorporated Areas). Approximately 300 feet upstream of the confluence with Jones Creek +226 +227 Watery Branch Tributary At the confluence with Watery Branch +196 +197 Columbia County (Unincorporated Areas). Approximately 10 feet upstream of the confluence with Watery Branch +196 +197 Westhampton Tributary No. 1 At the confluence with Bowen Pond Tributary +248 +249 Columbia County (Unincorporated Areas). Approximately 75 feet upstream of the confluence with Bowen Pond Tributary +248 +249 Tributary No. 2 At the confluence with Bowen Pond Tributary +259 +258 Columbia County (Unincorporated Areas). Approximately 20 feet upstream of the confluence with Bowen Pond Tributary +259 +258 Tributary No. 3 At the confluence with Bowen Pond Tributary +270 +269 Columbia County (Unincorporated Areas). Approximately 70 feet upstream of the confluence with Bowen Pond Tributary +270 +269 * National Geodetic Vertical Datum. # Depth in feet above ground. + North American Vertical Datum 1. 1 The existing elevation data included on the effective FIRM is printed in the elevation datum of the National Geodetic Vertical Datum of 1929 (NGVD29). In order to convert this printed elevation data from the NGVD29 datum to the NAVD88 datum, please subtract 0.68. ADDRESSES Columbia County, Georgia Maps are available for inspection at the Community Map Repository, Engineering & Environmental Services Division, P.O. Box 498, 630 Ronald Reagan Drive, Building A, Evans, GA 30809. Send comments to The Honorable Ron C. Cross, Chairman, Columbia County Board of Commissioners, P.O. Box 498, 630 Ronald Reagan Drive, Building B, Evans, GA 30809. Clark County, Illinois, and Incorporated Areas East Mill Creek Reservoir None +560 Clark County (Unincorporated Areas). Mill Creek Lake From Clarksville Road Bridge south to dam (Mill Creek Watershed Structure No. 1) None +616 Clark County (Unincorporated Areas). Lincoln Trail State Park Lake None +547 Clark County (Unincorporated Areas). * National Geodetic Vertical Datum. # Depth in feet above ground. + North American Vertical Datum. ADDRESSES Clark County, Illinois (Unincorporated Areas) Maps are available for inspection at the Clark County Clerk's Office. Clark County Courthouse, 501 Archer Ave., Marshall, IL 62441. Send comments to The Honorable William Weaver, County Board Chairman, Clark County Courthouse, 501 Archer Ave., Marshall, IL 62441. Flathead County, Montana, and Incorporated Areas Ashley Creek Just downstream of Cemetery Road None +2920 Flathead County (Uninc. Areas) and City of Kalispell. Approximately 150 feet downstream of Airport Road +2925 +2929 Approximately 250 feet upstream of Burlington Northern Railroad +2943 +2942 * National Geodetic Vertical Datum. # Depth in feet above ground. + North American Vertical Datum. ADDRESSES Unincorporated Areas Flathead County Maps are available for inspection at the Flathead County Library, 247 First Ave. East, Kalispell, Montana 59901 and at the Flathead County Planning and Zoning Office, 1035 First Ave. West, Kalispell, Montana 59901. Send comments to the Honorable Robert Watne, Chair, Flathead County Board of Commissioners, 800 South Main, Kalispell, Montana 59901. City of Kalispell Maps are available for inspection at the City of Kalispell Planning Department, 17 Second St. East, Suite 211, Kalispell, Montana 59901. Send comments to the Honorable Pamela Kennedy, Mayor, City of Kalispell, P.O. Box 1997, Kalispell, Montana 59903. (Catalogue of Federal Domestic Assistance No. 83.100, “Flood Insurance.”) Dated: October 27, 2006. David I. Maurstad, Director, Mitigation Division, Federal Emergency Management Agency, Department of Homeland Security. [FR Doc. E6-18572 Filed 11-2-06; 8:45 am] BILLING CODE 9110-12-P 71 213 Friday, November 3, 2006 Notices DEPARTMENT OF AGRICULTURE Submission for OMB Review; Comment Request October 30, 2006. The Department of Agriculture has submitted the following information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13. Comments regarding
(a)whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(b)the accuracy of the agency's estimate of burden including the validity of the methodology and assumptions used;
(c)ways to enhance the quality, utility and clarity of the information to be collected;
(d)ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology should be addressed to: Desk Officer for Agriculture, Office of Information and Regulatory Affairs, Office of Management and Budget (OMB), *OIRA_Submission@OMB.EOP.GOV* or fax
(202)395-5806 and to Departmental Clearance Office, USDA, OCIO, Mail Stop 7602, Washington, D.C. 20250-7602. Comments regarding these information collections are best assured of having their full effect if received within 30 days of this notification. Copies of the submission(s) may be obtained by calling
(202)720-8958. An agency may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number and the agency informs potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number. Animal Plant and Health Inspection Service *Title:* 7 CFR 340; Introduction of Organisms and Products Altered or Produced Through Genetic Engineering. *OMB Control Number:* 0579-0085. *Summary of Collection:* The Animal and Plant Health Inspection Service (APHIS) is charged with preventing the introduction of plant pest into the United States or their dissemination within the United States. The statutory requirements for the information collection activity are found in the Plant Pest Act (PPA). The regulations in 7 CFR part 340 implement the provisions of the PPA by providing the information necessary to establish conditions for proposed introductions of certain genetically engineered organisms and products which present a risk of plant pest introduction. APHIS will collect information using several APHIS forms. *Need and Use of the Information:* APHIS will collect the information through a notification procedure or a permit requirement to ensure that certain genetically engineered organisms, when imported, moved interstate, or released into the environment, will not present a risk of plant pest introduction. The information collected through the petition process is used to determine whether a genetically engineered organism will pose a risk to agriculture or the environment if grown in the absence of regulations by APHIS. The information is also provided to State departments of agriculture for review, and made available to the public and private sectors on the Internet to ensure that all sectors are kept informed concerning any potential risks posed through the use of genetic engineering technology. *Description of Respondents:* Business or other for profit; Not-for-profit institutions; State, Local or Tribal Government. *Number of Respondents:* 121. *Frequency of Responses:* Recordkeeping; Reporting: On occasion. *Total Burden Hours:* 2,940. Animal and Plant Health Inspection Service *Title:* Asian Longhorn Beetle (ALB). *OMB Control Number:* 0579-NEW. *Summary of Collection:* The Asian longhorned beetle
(ALB)is a destructive pest of hardwood trees. It attacks many healthy hardwood trees, including maple, horse chestnut, birch, popular, willow, and elm. The beetle bores into the heartwood of a host tree, eventually killing the tree. The U.S. Department of Agriculture's Animal and Plant Health Inspection Service (APHIS) has administered an ALB Cooperative Eradication Program since 1996 to eradicate this destructive pest from the United States. Areas found to be infested are quarantined, and the movement of host material from the area is restricted. However, ALB continues to be a serious threat, and APHIS believes that public support is crucial to eradication efforts. APHIS plans to enlist the public's assistance in reporting the presence or absence of the ALB in their local areas. APHIS will invite members of the public to report the results of any surveys they conduct using a simple on-line form on the internet to record sighting and nonsighting. *Need and Use of the Information:* The voluntary online survey will collect the following information from each respondent: If the person reporting does not locate any beetles, the survey asks only for the location searched and the school the person attends. A name, phone number, and address will be optional. For positive sightings, the name of the person reporting the finding, a way to contact them, the exact address/location of the sighting, and details on where the tree is located are needed. Failure to collect this information could lead to the deregulation of areas where the beetle is still present, thus leading to a large scale outbreak. *Description of Respondents:* Individuals or households. *Number of Respondents:* 5,000. *Frequency of Responses:* Reporting: On occasion. *Total Burden Hours:* 415. Ruth Brown, Departmental Information Collection Clearance Officer. [FR Doc. E6-18543 Filed 11-2-06; 8:45 am] BILLING CODE 3410-34-P DEPARTMENT OF AGRICULTURE Food Safety and Inspection Service [Docket No. FSIS-2006-0036] Notice of Request for Extension of a Currently Approved Information Collection (Registration Requirements) AGENCY: Food Safety and Inspection Service, USDA. ACTION: Notice and request for comments. SUMMARY: In accordance with the Paperwork Reduction Act of 1995 and the Office of Management and Budget
(OMB)regulations, this notice announces the Food Safety and Inspection Service's
(FSIS)intention to request an extension of a currently approved information collection regarding registration requirements. DATES: Comments on this notice must be received on or before January 2, 2007. ADDRESSES: FSIS invites interested persons to submit comments on this notice. Comments may be submitted by any of the following methods: • *Mail, including floppy disks or CD-ROM's, and hand- or courier-delivered items:* Send to Docket Clerk, U.S. Department of Agriculture, Food Safety and Inspection Service, 300 12th Street, SW., Room 102 Cotton Annex, Washington, DC 20250. • *Electronic mail: fsis.regulationscomments@fsis.usda.gov.* • *Federal eRulemaking Portal:* This Web site provides the ability to type short comments directly into the comment field on this Web page or attach a file for lengthier comments. Go to *http://www.regulation.gov* and in the “Search for Open Regulations” box, select “Food Safety and Inspection Service” from the agency drop-down menu, then click on “Submit.” In the Docket ID column, select FDMS Docket Number FSIS-calendar year-docket number to submit or view public comments and to view supporting and related materials available electronically. All submissions received by mail or electronic mail must include the Agency name and docket number. All comments submitted in response to this document, as well as research and background information used by FSIS in developing this document, will be available for public inspection in the FSIS Docket Room at the address listed above between 8:30 a.m. and 4:30 p.m., Monday through Friday, except Federal holidays. Comments will also be posted on the Agency's Web site at *http://www.fsis.usda.gov/regulations_&_policies/regulations_directives_&_notices/index.asp* . *For Additional Information:* Contact John O'Connell, Paperwork Reduction Act Coordinator, Food Safety and Inspection Service, USDA, 300 12th Street, SW., Room 112, Washington, DC 20250-3700,
(202)720-0345. SUPPLEMENTARY INFORMATION: *Title:* Registration Requirements. *OMB Number:* 0583-0128. *Expiration Date of Approval:* 02/28/2007. *Type of Request:* Extension of a currently approved information collection. *Abstract:* FSIS has been delegated the authority to exercise the functions of the Secretary as specified in the Federal Meat Inspection Act
(FMIA)(21 U.S.C. 601, *et seq.* ) and the Poultry Products Inspection Act
(PPIA)(21 U.S.C. 451, *et seq.* ). These statutes provide that FSIS is to protect the public by verifying that meat and poultry products are safe, wholesome, unadulterated, and properly labeled and packaged. FSIS is requesting extension of an approved information collection addressing paperwork and recordkeeping requirements regarding registration requirements. Provisions of the FMIA (21 U.S.C. 643) and the PPIA (21 U.S.C. 460(c)) prohibit any person, firm, or corporation from engaging in commerce as a meat or poultry products broker, renderer, animal food manufacturer, wholesaler, or public warehouseman, or from buying, selling, or transporting, or importing any dead, dying, or disabled or diseased livestock or poultry or parts of the carcasses of livestock or poultry that died otherwise than by slaughter, unless it has registered its business as required by the regulations. According to the regulations (9 CFR 320.5 and 381.179), parties required to register with FSIS must do so by submitting a form (FSIS Form 5020-1, Registration of Meat and Poultry Handlers) and must provide current and correct information to FSIS, including their name, the address of all locations at which they conduct the business that requires them to register, and all trade or business names under which they conduct these businesses. In addition, parties required to register with FSIS must do so within 90 days after they begin to engage in any of the businesses that require registration. They must also inform FSIS when information on the form needs to be updated. FSIS has made the following estimates based upon an information collection assessment: *Estimate of Burden:* FSIS estimates that it will take respondents an average of 10 minutes to complete and submit this form to FSIS. *Respondents:* Brokers, renderers, animal food manufacturers, wholesalers, public warehousemen, meat and poultry handlers. *Estimated No. of Respondents:* 600. *Estimated No. of Annual Responses per Respondent:* 1. *Estimated Total Annual Burden on Respondents:* 100 hours. Copies of this information collection assessment can be obtained from John O'Connell, Paperwork Reduction Act Coordinator, Food Safety and Inspection Service, USDA, 300 12th Street, SW., Room 112, Washington, DC 20250-3700,
(202)720-5627,
(202)720-0345. *Comments are invited on:*
(a)Whether the proposed collection of information is necessary for the proper performance of FSIS' functions, including whether the information will have practical utility;
(b)the accuracy of FSIS' estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(c)ways to enhance the quality, utility, and clarity of the information to be collected; and,
(d)ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques, or other forms of information technology. Comments may be sent to both John O'Connell, Paperwork Reduction Act Coordinator, at the address provided above, and the Desk Officer for Agriculture, Office of Information and Regulatory Affairs, Office of Management and Budget, Washington, DC 20253. All responses to this notice will be summarized and included in the request for OMB approval. All comments will also become a matter of public record. Additional Public Notification Public awareness of all segments of rulemaking and policy development is important. Consequently, in an effort to ensure that the public and in particular minorities, women, and persons with disabilities, are aware of this notice, FSIS will announce it on-line through the FSIS Web page located at *http://www.fsis.usda.gov/regulations/2006_Notices_Index/index.asp.* FSIS also will make copies of this **Federal Register** publication available through the FSIS Constituent Update, which is used to provide information regarding FSIS policies, procedures, regulations, **Federal Register** notices, FSIS public meetings, recalls, and other types of information that could affect or would be of interest to our constituents and stakeholders. The update is communicated via Listserv, a free e-mail subscription service consisting of industry, trade, and farm groups, consumer interest groups, allied health professionals, scientific professionals, and other individuals who have requested to be included. The update also is available on the FSIS Web page. Through Listserv and the Web page, FSIS is able to provide information to a much broader, more diverse audience. In addition, FSIS offers an e-mail subscription service which provides automatic and customized access to selected food safety news and information. This service is available at *http://www.fsis.usda.gov/news_and_events/email_subscription/.* Options range from recalls to export information to regulations, directives and notices. Customers can add or delete subscriptions themselves and have the option to password protect their account. Done at Washington, DC, on October 31, 2006. Barbara J. Masters, Administrator. [FR Doc. E6-18580 Filed 11-2-06; 8:45 am] BILLING CODE 3410-DM-P DEPARTMENT OF AGRICULTURE Forest Service Gauley Ranger District, Monongahela National Forest, WV; Lower Williams Vegetation Project EIS ACTION: Notice of intent to prepare an environmental impact statement. SUMMARY: The Forest Service, Monongahela National Forest, Gauley Ranger District, intends to prepare a draft environmental impact statement to disclose the environmental consequences of timber harvest, road construction, wildlife habitat improvement, and associated activities in the Lower Williams area of Webster County, WV to move this area towards the desired condition. DATES: Comments and suggestions concerning the scope of the analysis should be submitted (postmarked) by December 4, 2006 to ensure timely consideration. The draft environmental impact statement is expected to be available May 2007 and the final environmental impact statement is expected to be September 2007. ADDRESSES: Send written comments to O'Dell Tucker, ID Team Leader, Lower Williams Project, 932 North Fork Cherry RD., Richwood, WV 26261. Send electronic comments to *comments-eastern-monongahela-gauley@fs.fed.us* ( *please note:* when commenting by e-mail be sure to list *Lower Williams Vegetation Project EIS* in the subject line and include a U.S. Postal Service address so we may add you to our mailing list). *See* SUPPLEMENTARY INFORMATION section for information on how to send electronic comments. For further information, mail correspondence to O'Dell Tucker at the address above. FOR FURTHER INFORMATION CONTACT: O'Dell E. Tucker, project team leader, *see* the address above under ADDRESSES . Copies of documents may be requested at the same address. The scoping letter and maps for the Lower Williams EIS are posted on the MNF Web site: *http://www.fs.fed.us/r9/monongahela.* SUPPLEMENTARY INFORMATION: The Monongahela National Forest Land and Resource Management Plan (Forest Plan) sets site-specific goals for the management of forest resources. The National Forest System Land within the Lower Williams Project Area is in Management Prescription
(MP)3.0, which emphasizes age class diversity and sustainable timber production, habitat for wildlife species tolerant of disturbances, such as deer, grouse, and squirrel, a variety of forest scenery, and primary motorized recreation environment. The Forest Service is proposing actions that would move the Lower Williams Project Area from the existing condition towards the Desired Future Condition
(DFC)and would maintain the DFC in situations where it has been attained. The DFC is described in the 2006 Monongahela National Forest Land and Resource Management Plan (Forest Plan). Purpose and Need for Action The purpose and need for action in the Lower Williams Project is to:
(1)Create early successional forest habitat and permanent openings within the area to improve habitat for species such as grouse, deer, and squirrel;
(2)reduce the amount of competition between trees for light and water resources in dense, over-crowded stands to provide for sustainable timber and mast production; and
(3)regenerate shade-intolerant tree species and diversity forest age classes to improve the long-term sustainability of timber and increase the quality and growth rate of crop trees and mast producing trees. Proposed Action Proposed activities to meet the desired condition fall into three main categories.
(1)*Timber harvest and reforestation treatments* consist of: Regeneration harvest, commercial thinning, shelterwood harvest, manual site preparation and release, herbicide application, planting and tubing of American Chestnut and Butternut.
(2)*Wildlife habitat improvement treatments* consist of: Savannah construction, water hole construction, opening maintenance, and herbicide use.
(3)*Transportation treatments* consist of: Road reconditioning, road construction, and road reconstructioning. *Responsible Official:* This decision will be subject to appeal under 36 CFR 215. The responsible official is James L. Lowe, Gauley Ranger District, 932 North Fork Cherry RD., Richwood, PA 26261. Nature of Decision To Be Made The decision to be made is whether to implement the proposed action, an alternative to the proposed action, or to defer activities related to this project. If an action alternative is selected, the deciding official will decide what, if any, mitigation measures are included and if a Forest Plan is required. *Scoping Process:* This notice of intent initiates the scoping process, which guides the development of the environmental impact statement. The scoping process will begin the day following the publication of this notice of intent in the **Federal Register.** *Preliminary Issues:* Preliminary issues were identified based on internal review of the project area, issues developed for similar projects, and site-specific concerns raised by the resource specialists. The resource concerns within the project area are impacts to water quality, soils, and aquatic wildlife. *Comments Requested:* Your comments will help the Forest Service refine and enhance the list of issues that are considered when analyzing alternatives to the proposed action. *Review:* When this analysis is nearly complete, the Draft EIS will be filed with the Environmental Protection Agency and become available for public review (expected by May 2007). At that time the Environmental Protection Agency will publish a Notice of Availability of the document in the **Federal Register** (this will begin the 45-day comment period on the Draft EIS). After the comment period ends on the Draft EIS, the comments will be analyzed and considered by the Forest Service in preparing the final environmental impact statement. The Final EIS and Record of Decision are scheduled for release in September 2007. Comments received, including names and addresses of those who comment, will be considered part of the public record and may be subject to public disclosure. Any person may request the Agency to withhold a submission from the public record by showing how the Freedom of Information Act
(FOIA)permits such confidentiality. The Forest Service believes it is important to give reviewers notice at this early stage of several court rulings related to public participation in the environmental review process. First, reviewers of draft environmental impact statements must structure their participation in the environmental review of the proposal so that it is meaningful and alerts an agency to the reviewer's position and contentions ( *Vermont Yankee Nuclear Power Corp.* v. *NRDC,* 435 U.S. 519 553 [1978]). Also, environmental objections that could be raised at the draft environmental impact statement stage but that are not raised until after completion of the final environmental impact statement stage may be waived or dismissed by the courts ( *City of Angoon* v. *Hodel* , 803 F.2nd 1016, 1022 [9th Cir. 1986] and *Wisconsin Heritages, Inc.* v. *Harris,* 490 F. Supp. 1334, 1338 [E.D. Wis. 1980]). Because of the above rulings, it is very important that those interested in this proposed action participate by the close of the 45-day comment period so that substantive comments are made available to the Forest Service at a time when they can be meaningfully considered and responded to in the final environmental impact statement. Comments on the draft environmental impact statement should be as specific as possible. It is also helpful if comments refer to specific pages, sections, or chapters of the draft statement. Comments may also address the adequacy of the draft environmental impact statement or the merits of the alternatives formulated and discussed in the statement. Reviewers may wish to refer to Council on Environmental Quality *Regulations for implementing the procedural provisions of the National Environmental Policy Act* at 40 CFR 1503.3 in addressing these points. Dated: October 26, 2006. James L. Lowe, District Ranger. [FR Doc. E6-18498 Filed 11-2-06; 8:45 am] BILLING CODE 3410-11-P COMMITTEE FOR PURCHASE FROM PEOPLE WHO ARE BLIND OR SEVERELY DISABLED Procurement List; Proposed Additions and Deletions AGENCY: Committee for Purchase from People Who Are Blind or Severely Disabled. ACTION: Proposed Additions to and Deletions from Procurement List. SUMMARY: The Committee is proposing to add to the Procurement List a product and a service to be furnished by nonprofit agencies employing persons who are blind or have other severe disabilities, and to delete products previously furnished by such agencies. *Comments Must Be Received On or Before:* December 3, 2006. ADDRESSES: Committee for Purchase From People Who Are Blind or Severely Disabled, Jefferson Plaza 2, Suite 10800, 1421 Jefferson Davis Highway, Arlington, Virginia, 22202-3259. For Further Information or to Submit Comments Contact: Sheryl D. Kennerly, Telephone:
(703)603-7740, Fax:
(703)603-0655, or e-mail *CMTEFedReg@jwod.gov.* SUPPLEMENTARY INFORMATION: This notice is published pursuant to 41 U.S.C. 47(a)(2) and 41 CFR 51-2.3. Its purpose is to provide interested persons an opportunity to submit comments on the proposed actions. Additions If the Committee approves the proposed additions, the entities of the Federal Government identified in this notice for each product or service will be required to procure the product and service listed below from nonprofit agencies employing persons who are blind or have other severe disabilities. Regulatory Flexibility Act Certification I certify that the following action will not have a significant impact on a substantial number of small entities. The major factors considered for this certification were: 1. If approved, the action will not result in any additional reporting, recordkeeping or other compliance requirements for small entities other than the small organizations that will furnish the products and services to the Government. 2. If approved, the action will result in authorizing small entities to furnish the products and services to the Government. 3. There are no known regulatory alternatives which would accomplish the objectives of the Javits-Wagner-O'Day Act (41 U.S.C. 46-48c) in connection with the products and services proposed for addition to the Procurement List. Comments on this certification are invited. Commenters should identify the statement(s) underlying the certification on which they are providing additional information. End of Certification The following product and service are proposed for addition to Procurement List for production by the nonprofit agencies listed: Product Pan, Drip Oil *NSN:* 4910-01-211-2195—Pan, Drip Oil. *NPA:* Central Association for the Blind & Visually Impaired, Utica, NY. *Contracting Activity:* Defense Supply Center Columbus, Columbus, OH. Services *Service Type/Location:* Guard Services, U.S. Coast Guard-Mayport, 4200 Ocean Street, Mayport, FL. *NPA:* GINFL Services, Inc., Jacksonville, FL. *Contracting Activity:* U.S. Coast Guard—Mayport, Mayport, FL. Deletions Regulatory Flexibility Act Certification I certify that the following action will not have a significant impact on a substantial number of small entities. The major factors considered for this certification were: 1. If approved, the action may result in additional reporting, recordkeeping or other compliance requirements for small entities. 2. If approved, the action may result in authorizing small entities to furnish the products to the Government. 3. There are no known regulatory alternatives which would accomplish the objectives of the Javits-Wagner-O'Day Act (41 U.S.C. 46-48c) in connection with the products proposed for deletion from the Procurement List. End of Certification The following products are proposed for deletion from the Procurement List: Product Clean-N-Disinfect—Maximum Heavy-Duty Cleaner & Wax Stripper *NSN:* 7930-01-513-8005—Maximum, Heavy-Duty Cleaner & Wax Stripper. *NPA:* Lighthouse for the Blind, St. Louis, MO. *Contracting Activity:* Office Supplies & Paper Products Acquisition Ctr, New York, NY. Sheryl D. Kennerly, Director, Information Management. [FR Doc. E6-18569 Filed 11-2-06; 8:45 am] BILLING CODE 6353-01-P COMMITTEE FOR PURCHASE FROM PEOPLE WHO ARE BLIND OR SEVERELY DISABLED Procurement List Deletions AGENCY: Committee for Purchase From People Who Are Blind or Severely Disabled. ACTION: Deletions from Procurement List. SUMMARY: This action deletes from the Procurement List products previously furnished by nonprofit agencies. EFFECTIVE DATE: December 3, 2006. ADDRESSES: Committee for Purchase From People Who Are Blind or Severely Disabled, Jefferson Plaza 2, Suite 10800, 1421 Jefferson Davis Highway, Arlington, Virginia, 22202-3259. FOR FURTHER INFORMATION CONTACT: Sheryl D. Kennerly, Telephone:
(703)603-7740, Fax:
(703)603-0655, or e-mail *CMTEFedReg@jwod.gov.* SUPPLEMENTARY INFORMATION: Deletions On July 21, 2006, the Committee for Purchase From People Who Are Blind or Severely Disabled published notice (71 F.R. 41417) of proposed deletions from the Procurement List. After consideration of the relevant matter presented, the Committee has determined that the products listed below are no longer suitable for procurement by the Federal Government under 41 U.S.C. 46-48c and 41 CFR 51-2.4. Regulatory Flexibility Act Certification I certify that the following action will not have a significant impact on a substantial number of small entities. The major factors considered for this certification were: 1. The action may result in additional reporting, recordkeeping or other compliance requirements for small entities. 2. The action may result in authorizing small entities to furnish the products to the Government. 3. There are no known regulatory alternatives which would accomplish the objectives of the Javits-Wagner-O'Day Act (41 U.S.C. 46-48c) in connection with the products deleted from the Procurement List. End of Certification Accordingly, the following products are deleted from the Procurement List: Products Binder, Note Pad *NSN:* 7510-00-NIB-0195—Binder, Note Pad. *NSN:* 7510-00-NIB-0195—Binder, Note Pad. *NPA:* ForSight Vision, York, PA. *NPA:* New York City Industries for the Blind, Inc., Brooklyn, NY. *Contracting Activity:* Office Supplies & Paper Products Acquisition Ctr, New York, NY. Card Set, Guide, File *NSN:* 7530-01-175-1553—Card Set, Guide, File. *NPA:* Georgia Industries for the Blind, Bainbridge, GA. *Contracting Activity:* Office Supplies & Paper Products Acquisition Ctr, New York, NY. Case, Carrying *NSN:* 1220-00-765-5870—Case, Carrying. *NSN:* 1220-00-937-8286—Case, Carrying. *NPA:* Arizona Industries for the Blind, Phoenix, AZ. Chock Wheel *NSN:* 1730-00-NIB-001B—Chock Wheel (6″ x 8″ x 18″). *NSN:* 1730-00-NIB-001A—Chock Wheel (2″ x 4″ x 8″). *NSN:* 1730-00-NIB-001E—Chock Wheel (10″ x 20″). *NSN:* 1730-00-NIB-001D—Chock Wheel (8″ x 12″). *NSN:* 1730-00-NIB-001C—Chock Wheel (6″ x 8″ x 76″). *NPA:* The Oklahoma League for the Blind, Oklahoma City, OK. *Contracting Activity:* Defense Supply Center Richmond, Richmond, VA. Detergent, General Purpose *NSN:* 7930-01-055-6122—Detergent, General Purpose. *NPA:* Lighthouse for the Blind of Houston, Houston, TX. *Contracting Activity:* GSA, Southwest Supply Center, Fort Worth, TX. Inking Pad, Rubber Stamp *NSN:* 7510-01-431-6515—Inking Pad, Rubber Stamp. *NPA:* Cattaraugus County Chapter, NYSARC, Olean, NY. *Contracting Activity:* Office Supplies & Paper Products Acquisition Ctr, New York, NY. Insert, Foam, Laminated *NSN:* 8135-00-NSH-0004—Insert, Foam, Laminated. *NPA:* Goodwill Industries of the Columbia Willamette, Portland, OR. *Contracting Activity:* Bureau of the Mint, Department of the Treasury, Washington, DC. Splint, Pneumatic *NSN:* 6515-00-935-6593—Splint, Pneumatic. *NSN:* 6515-00-935-6592—Splint, Pneumatic. *NPA:* The Lighthouse for the Blind, Inc. (Seattle Lighthouse), Seattle, WA. *Contracting Activity:* Defense Supply Center Philadelphia, Philadelphia, PA. Sheryl D. Kennerly, Director, Information Management. [FR Doc. E6-18570 Filed 11-2-06; 8:45 am] BILLING CODE 6353-01-P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration [I.D. 102606D] Mid-Atlantic Fishery Management Council; Public Meetings AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Notice of public meetings. SUMMARY: The Mid-Atlantic Fishery Management Council's (MAFMC) Summer Flounder Monitoring Committee, Scup Monitoring Committee, Black Sea Bass Monitoring Committee, and the Mid-Atlantic Fishery Council's and the Atlantic States Marine Fisheries Commission's Summer Flounder, Scup, and Black Sea Bass Advisors will hold public meetings. DATES: The meetings will be held on Monday, November 20, 2006, beginning at 10 a.m. ADDRESSES: The meeting will be held at the Renaissance Philadelphia Airport, 500 Stevens Drive, Philadelphia, PA 19113, telephone:
(610)521-5900. *Council address* : Mid-Atlantic Fishery Management Council, Room 2115, 300 S. New Street, Dover, DE 19904, telephone:
(302)674-2331. FOR FURTHER INFORMATION CONTACT: Daniel T. Furlong, Executive Director, Mid-Atlantic Fishery Management Council; telephone:
(302)674-2331, extension 19. SUPPLEMENTARY INFORMATION: The purpose of these meetings is to recommend the 2007 recreational management measures for the summer flounder, scup, and black sea bass fisheries. Although non-emergency issues not contained in this agenda may come before this group for discussion, those issues may not be the subject of formal action during this meeting. Action will be restricted to those issues specifically identified in this notice and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Fishery Conservation and Management Act, provided the public has been notified of the MAFMC's intent to take final action to address the emergency. Special Accommodations The meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to M. Jan Saunders
(302)674-2331 extension 18 at the Council Office at least 5 days prior to the meeting date. Dated: October 31, 2006. Tracey L. Thompson, Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service. [FR Doc. E6-18548 Filed 11-2-06; 8:45 am] BILLING CODE 3510-22-S DEPARTMENT OF COMMERCE United States Patent and Trademark Office [Docket No. PTO-C-2006-0052] No FEAR Act Notice AGENCY: United States Patent and Trademark Office, Department of Commerce. ACTION: Notice. SUMMARY: The United States Patent and Trademark Office is providing notice to its employees, former employees, and applicants for employment of rights and remedies available under the Federal antidiscrimination and whistleblower protection laws as required by the Notification and Federal Employees Antidiscrimination and Retaliation Act of 2002 (No FEAR Act), and the regulations of the Office of Personnel Management found at 5 CFR part 724. ADDRESSES: The United States Patent and Trademark Office, Office of Civil Rights is located at 600 Dulany Street, Madison East, 7th Floor, Alexandria, VA 22313. The telephone number is
(571)272-8292 and the facsimile number is
(571)273-0154. FOR FURTHER INFORMATION CONTACT: Bismarck Myrick by telephone at
(571)272-8292; by mail at United States Patent and Trademark Office, Office of Civil Rights, 600 Dulany Street, Madison East, 7th Floor, Alexandria, VA 22313; facsimile number at
(571)273-0154; or electronic mail at *OCR@uspto.gov.* Background On May 15, 2002, Congress enacted the “Notification and Federal Employee Antidiscrimination and Retaliation Act of 2002,” which is now known as the No FEAR Act. One purpose of the Act is to “require that Federal agencies be accountable for violations of antidiscrimination and whistleblower protection laws.” Public Law 107-174, Summary. In support of this purpose, Congress found that “agencies cannot be run effectively if those agencies practice or tolerate discrimination.” Public Law 107-174, Title I, General Provisions, section 101(1). The Act also requires this agency to provide this notice to Federal employees, former Federal employees and applicants for Federal employment to inform them of the rights and protections available to them under Federal antidiscrimination and whistleblower protection laws. Antidiscrimination Laws A Federal agency may not discriminate against an employee or applicant with respect to the terms, conditions or privileges of employment on the basis of race, color, religion, sex, national origin, age, disability, marital status or political affiliation. Discrimination on these bases is prohibited by one or more of the following statutes: 5 U.S.C. 2302(b)(1), 29 U.S.C. 206(d), 29 U.S.C. 631, 29 U.S.C. 633a, 29 U.S.C. 791 and 42 U.S.C. 2000e-16. If you believe that you have been the victim of unlawful discrimination on the basis of race, color, religion, sex, national origin or disability, you must contact an Equal Employment Opportunity
(EEO)counselor within 45 calendar days of the alleged discriminatory action, or in the case of a personnel action, within 45 calendar days of the effective date of the action, before you can file a formal complaint of discrimination with your agency. *See, e.g.* 29 CFR 1614. If you believe that you have been the victim of unlawful discrimination on the basis of age, you must either contact an EEO counselor as noted above or give notice of intent to sue to the Equal Employment Opportunity Commission
(EEOC)within 180 calendar days of the alleged discriminatory action. If you are alleging discrimination based on marital status or political affiliation, you may file a written complaint with the U.S. Office of Special Counsel
(OSC)(see contact information below). In the alternative (or in some cases, in addition), you may pursue a discrimination complaint by filing a grievance through your agency's administrative or negotiated grievance procedures, if such procedures apply and are available. Whistleblower Protection Laws A Federal employee with authority to take, direct others to take, recommend or approve any personnel action must not use that authority to take or fail to take, or threaten to take or fail to take, a personnel action against an employee or applicant because of disclosure of information by that individual that is reasonably believed to evidence violations of law, rule or regulation; gross mismanagement; gross waste of funds; an abuse of authority; or a substantial and specific danger to public health or safety, unless disclosure of such information is specifically prohibited by law and such information is specifically required by Executive Order to be kept secret in the interest of national defense or the conduct of foreign affairs. Retaliation against an employee or applicant for making a protected disclosure is prohibited by 5 U.S.C. 2302(b)(8). If you believe that you have been the victim of whistleblower retaliation, you may file a written complaint (Form OSC-11) with the U.S. Office of Special Counsel at 1730 M Street, NW., Suite 218, Washington, DC 20036-4505 or on-line through the OSC Web site— *http://www.osc.gov.* Retaliation for Engaging in Protected Activity A Federal agency cannot retaliate against an employee or applicant because that individual exercises his or her rights under any of the Federal antidiscrimination or whistleblower protection laws listed above. If you believe that you are the victim of retaliation for engaging in protected activity, you must follow, as appropriate, the procedures described in the Antidiscrimination Laws and Whistleblower Protection Laws sections or, if applicable, the administrative or negotiated grievance procedures in order to pursue any legal remedy. Disciplinary Actions Under the existing laws, each agency retains the right, where appropriate, to discipline a Federal employee for conduct that is inconsistent with Federal Antidiscrimination and Whistleblower Protection Laws up to and including removal. If OSC has initiated an investigation under 5 U.S.C. 1214, however, according to 5 U.S.C. 1214(f), agencies must seek approval from the Special Counsel to discipline employees for, among other activities, engaging in prohibited retaliation. Nothing in the No FEAR Act alters existing laws or permits an agency to take unfounded disciplinary action against a Federal employee or to violate the procedural rights of a Federal employee who has been accused of discrimination. Additional Information For further information regarding the No FEAR Act regulations, refer to 5 CFR part 724, as well as the appropriate offices within your agency ( *e.g.* , EEO/Civil Rights Office, Human Resources Office or Office of General Counsel). Additional information regarding Federal antidiscrimination, whistleblower protection and retaliation laws can be found at the EEOC Web site— *http://www.eeoc.gov* and the OSC Web site— *http://www.osc.gov.* Existing Rights Unchanged Pursuant to section 205 of the No FEAR Act, neither the Act nor this notice creates, expands or reduces any rights otherwise available to any employee, former employee or applicant under the laws of the United States, including the provisions of law specified in 5 U.S.C. 2302(d). Dated: October 27, 2006. Jon W. Dudas, Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office. [FR Doc. E6-18609 Filed 11-2-06; 8:45 am] BILLING CODE 3510-16-P COMMISSION OF FINE ARTS Notice of Meeting The next meeting of the U.S. Commission of Fine Arts is scheduled for 16 November 2006, at 10 a.m. in the Commission's offices at the National Building Museum, Suite 312, Judiciary Square, 401 F Street, NW., Washington, DC 20001-2728. Items of discussion affecting the appearance of Washington, DC, may include buildings, parks and memorials. Draft agendas and additional information regarding the Commission are available on our Web site: *www.cfa.gov.* Inquiries regarding the agenda and requests to submit written or oral statements should be addressed to Thomas Luebke, Secretary, U.S. Commission of Fine Arts, at the above address or call 202-504-2200. Individuals requiring sign language interpretation for the hearing impaired should contact the Secretary at least 10 days before the meeting date. Dated in Washington, DC, 26 October 2006. Thomas Luebke, AIA, Secretary. [FR Doc. 06-9053 Filed 11-2-06; 8:45 am]
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  • 32 CFR 312
  • Pub. L. 96-354
  • Pub. L. 96-511
  • Pub. L. 104-4
  • Pub. L. 93-579
  • 88 Stat. 1896
  • 32 CFR 318
  • 32 CFR 323
  • 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
  • 37 CFR 1
  • Pub. L. 105-304
  • 112 Stat. 2860
  • Pub. L. 108-419
  • 118 Stat. 2341
  • Pub. L. 94-553
  • Pub. L. 104-39
  • 109 Stat. 336
  • Pub. L. 105-80
  • Pub. L. 103-198
  • 107 Stat. 2304
  • 63 FR 25
  • 68 FR 4744
  • 68 FR 39
  • 49 FR 14
  • 734 F.2d 1329
  • 925 F.2d 1486
  • 101 F.3d 772
  • 542 U.S. 692
  • 464 U.S. 16
  • 534 U.S. 438
  • 520 U.S. 751
  • 70 FR 30
  • 357 F.2d 713
  • 39 CFR 3
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F. App'x734 F.2d 1329
F. App'x925 F.2d 1486
F. App'x101 F.3d 772
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