Unknown. Interim rule with request for comment

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

--- schema: federal-register doc_type: fedreg source_file: FR-2006-11-08.xml --- 71 216 Wednesday, November 8, 2006 Contents Agricultural Agricultural Marketing Service RULES Almonds grown in California, 65373-65376 06-9133 PROPOSED RULES Perishable Agricultural Commodities Act; implementation: Electronic data interchange; trust benefit preservation; clarification, 65426-65430 E6-18826 Agriculture Agriculture Department See Agricultural Marketing Service See Animal and Plant Health Inspection Service See Economic Research Service See Forest Service See Grain Inspection, Packers and Stockyards Administration See Natural Resources Conservation Service Alcohol Alcohol and Tobacco Tax and Trade Bureau RULES Alcohol; viticultural area designations:

Tracy Hills, San Joaquin and Stanislaus Counties, CA, 65409-65412 E6-18894 PROPOSED RULES Alcohol; viticultural area designations: Lehigh Valley; Lehigh, Northampton, Berks, Schuylkill, Carbon, and Monroe Counties, PA, 65437-65442 E6-18895 Tulocay, Napa County, CA, 65432-65437 E6-18891 NOTICES Agency information collection activities; proposals, submissions, and approvals, 65569-65570 E6-18878 Animal Animal and Plant Health Inspection Service NOTICES Agency information collection activities; proposals, submissions, and approvals, 65451-65454 E6-18855 E6-18857 E6-18859 Environmental statements; availability, etc.:

Hawaii garbage; interstate movement to Washington landfill, 65454 E6-19027 Centers Centers for Disease Control and Prevention NOTICES Agency information collection activities; proposals, submissions, and approvals, 65526-65527 E6-18825 Centers Centers for Medicare & Medicaid Services NOTICES Privacy Act; systems of records, 65527-65531 E6-18814 Children Children and Families Administration NOTICES Agency information collection activities; proposals, submissions, and approvals, 65531-65532 06-9111 Coast Guard Coast Guard RULES Drawbridge operations:

Florida, 65412-65414 E6-18801 PROPOSED RULES Drawbridge operations: Florida, 65443-65445 E6-18799 Pollution: Mandatory ballast water management reporting and recordkeeping requirements, 65445-65446 E6-18903 Commerce Commerce Department See Industry and Security Bureau See International Trade Administration See National Oceanic and Atmospheric Administration See National Telecommunications and Information Administration NOTICES Agency information collection activities; proposals, submissions, and approvals, E6-18864 65456-65457 E6-18902 Consumer Consumer Product Safety Commission NOTICES Agency information collection activities; proposals, submissions, and approvals, 65476-65477 E6-18858 Defense Defense Department NOTICES Federal Acquisition Regulation (FAR):

Agency information collection activities; proposals, submissions, and approvals, 65477-65478 06-9106 06-9119 Drug Drug Enforcement Administration NOTICES *Applications, hearings, determinations, etc.:* Johnson Matthey, Inc., 65544 E6-18844 Economic Economic Research Service NOTICES Agency information collection activities; proposals, submissions, and approvals, 65455 E6-18797 Employment Employment and Training Administration NOTICES Agency information collection activities; proposals, submissions, and approvals, 65545 E6-18861 Employment Employment Standards Administration NOTICES Agency information collection activities; proposals, submissions, and approvals, 65545-65546 E6-18780 Energy Energy Department See Federal Energy Regulatory Commission RULES Sales regulation:

Strategic Petroleum Reserve; petroleum acquisition procedures, 65376-65383 E6-18786 NOTICES Senior Executive Service Performance Review Board; membership, 65478-65480 E6-18831 E6-18832 EPA Environmental Protection Agency RULES Air quality implementation plans; approval and promulgation; various States: Iowa, 65414-65416 E6-18845 Ohio, 65417-65424 E6-18788 Water supply: National primary drinking water regulations— Ground water systems; waterborne pathogens from fecal contamination; public health risk reduction, 65574-65660 06-8763 PROPOSED RULES Air quality implementation plans; approval and promulgation; various States:

Iowa, 65446-65447 E6-18843 NOTICES Hazardous waste: Idaho and Argonne National Laboratories; Central Characterization Project's remote-handled waste characterization programs; proposed approvals, 65488-65493 E6-18847 Pesticide, food, and feed additive petitions: Interregional Research Project (No. 4) et al., 65504-65507 E6-18777 E6-18873 Pesticide registration, cancellation, etc.: Bayer CropScience et al., 65493-65496 E6-18757 Bonide Products, Inc., et al., 65496-65504 E6-18778 Pesticides; experimental use permits, etc.:

Syngenta Seeds, Inc., 65508-65509 E6-18941 Water pollution control: National Pollutant Discharge Elimination System— Michigan; partial sewage sludge management program, 65509-65511 E6-18850 Executive Executive Office of the President See Presidential Documents Farm Farm Credit Administration RULES Farm credit system: Regulatory burden reduction, 65383-65387 E6-18841 FAA Federal Aviation Administration RULES Airworthiness directives: Diamond Aircraft Industries GmbH, 65391-65393 E6-18732 Pilatus Aircraft Ltd., 65387-65389 E6-18734 Raytheon, 65389-65391 E6-18727 PROPOSED RULES Airworthiness directives:

Turbomecca S.A., 65430-65432 E6-18839 FCC Federal Communications Commission RULES Common carrier services: Interconnection— Incumbent local exchange carriers; reclassification from competitive local exchange carriers, 65424-65425 E6-18770 Radio stations; table of assignments: Texas, 65425 E6-18693 PROPOSED RULES Radio services, special: Maritime communications, 65447-65450 E6-18755 Radio stations; table of assignments: California, 65447 E6-18694 NOTICES Agency information collection activities; proposals, submissions, and approvals, 65511-65517 E6-18687 E6-18733 E6-18735 E6-18743 E6-18745 E6-18854 E6-18856 Grants and cooperative agreements; availability, etc.:

Rural Health Care Support Mechanism Pilot Program, 65517-65520 E6-18759 Meetings: North American Numbering Council, 65520-65521 E6-18852 Federal Emergency Federal Emergency Management Agency NOTICES Agency information collection activities; proposals, submissions, and approvals, 65538 E6-18834 Disaster and emergency areas: Alaska, 65539 E6-18835 Indiana, 65539 E6-18837 New York, 65539 E6-18838 Federal Energy Federal Energy Regulatory Commission NOTICES Electric rate and corporate regulation combined filings, 65483-65488 E6-18805 E6-18806 E6-18807 *Applications, hearings, determinations, etc.:* California Independent System Operator, Inc., et al., 65481 E6-18809 CalPeak Power LLC et al., 65481-65482 E6-18812 CenterPoint Energy Gas Transmission Co., 65482 E6-18808 Texas Eastern Transmission, LP, 65482 E6-18811 Williston Basin Interstate Pipeline Co., 65482-65483 E6-18810 FMC Federal Maritime Commission NOTICES Agreements, filed, etc., 65521-65523 E6-18889 Federal Mine Federal Mine Safety and Health Review Commission NOTICES Meetings;

Sunshine Act, 65546 06-9144 Federal Reserve Federal Reserve System NOTICES Banks and bank holding companies: Change in bank control, 65523 E6-18773 E6-18823 Formations, acquisitions, and mergers, 65523-65524 E6-18772 E6-18824 Federal Retirement Federal Retirement Thrift Investment Board NOTICES Meetings; Sunshine Act, 65524 06-9142 Financial Financial Management Service See Fiscal Service Fiscal Fiscal Service NOTICES Surety companies acceptable on Federal bonds: Munich Reinsurance America, Inc., 65570 06-9107 Fish Fish and Wildlife Service RULES Endangered and threatened species:

Critical habitat designations— Willowy monardella, 65662-65683 06-9095 NOTICES Environmental statements; availability, etc.: Incidental take permits— Brevard County, FL; Florida scrub-jay, 65540-65541 E6-18822 Survival enhancement permits— Orange County, FL; red cockaded woodpecker; safe harbor agreement, 65541-65542 E6-18827 Meetings: Sporting Conservation Council, 65542 E6-18913 Food Food and Drug Administration NOTICES Agency information collection activities; proposals, submissions, and approvals, 65532-65536 E6-18896 E6-18901 E6-18908 E6-18911 Foreign Foreign Claims Settlement Commission NOTICES Meetings;

Sunshine Act, 65544 06-9160 Forest Forest Service NOTICES Environmental statements; notice of intent: Allegheny National Forest, PA; canceled, 65456 06-9108 GSA General Services Administration NOTICES Federal Acquisition Regulation (FAR): Agency information collection activities; proposals, submissions, and approvals, 65477-65478 06-9106 06-9119 Meetings: National Federal Fleet Manager Workshop and Information Fair (FedFleet 2007), including Aviation and Motor Vehicle Workshops, 65524-65525 E6-18872 GAO Government Accountability Office NOTICES Reports and guidance documents; availability, etc.:

Federal antidiscrimination, whistleblower protection, and retaliation laws; No FEAR Act notice, 65525-65526 E6-18862 GIPSA Grain Inspection, Packers and Stockyards Administration RULES Barley protein testing; official fees and tolerances, 65371-65373 E6-18860 Health Health and Human Services Department See Centers for Disease Control and Prevention See Centers for Medicare & Medicaid Services See Children and Families Administration See Food and Drug Administration See National Institutes of Health NOTICES Reports and guidance documents; availability, etc.:

National Toxicology Program, Center for Evaluation of Risks to Human Reproduction— Genistein and soy formula expert panel reports, 65537-65538 E6-18796 Homeland Homeland Security Department See Coast Guard See Federal Emergency Management Agency Industry Industry and Security Bureau NOTICES Chemical Weapons Convention regulations: Schedule 1 chemicals; implementation impact on commercial activities, 65457-65458 E6-18904 Interior Interior Department See Fish and Wildlife Service See Land Management Bureau See National Park Service NOTICES Meetings:

Natural Resource Damage Assessment and Restoration Advisory Committee, 65540 E6-18871 IRS Internal Revenue Service NOTICES Privacy Act; systems of records, 65570-65571 E6-18851 International International Trade Administration NOTICES Antidumping: Hot-rolled carbon steel flat products from— Thailand, 65458-65465 E6-18884 Stainless steel bar from— Japan, 65465-65466 E6-18880 Countervailing duties: Pure magnesium and alloy magnesium from— Canada, 65468-65469 E6-18886 Meetings: Exporters’ Textile Advisory Committee, 65469 E6-18879 *Applications, hearings, determinations, etc.:* University of— Alabama et al., 65466-65468 E6-18915 International International Trade Commission NOTICES Import investigations:

U.S.-China trade; U.S.-Asia-Pacific trade and investment trends; implications, 65543-65544 E6-18846 Justice Justice Department See Drug Enforcement Administration See Foreign Claims Settlement Commission Labor Labor Department See Employment and Training Administration See Employment Standards Administration Land Land Management Bureau NOTICES Meetings: Resource Advisory Councils— Alaska, 65542-65543 E6-18836 Mine Mine Safety and Health Federal Review Commission See Federal Mine Safety and Health Review Commission NASA National Aeronautics and Space Administration NOTICES Federal Acquisition Regulation (FAR):

Agency information collection activities; proposals, submissions, and approvals, 65477-65478 06-9106 06-9119 National Archives National Archives and Records Administration NOTICES Agency information collection activities; proposals, submissions, and approvals, 65546 E6-18833 NIH National Institutes of Health NOTICES Inventions, Government-owned; availability for licensing, 65536-65537 E6-18885 NOAA National Oceanic and Atmospheric Administration NOTICES Agency information collection activities; proposals, submissions, and approvals, E6-18865 65469-65470 E6-18887 Committees; establishment, renewal, termination, etc.:

Olympic Coast National Marine Sanctuary Advisory Council, 65470 06-9115 Endangered and threatened species permit applications, determinations, etc., 65470-65471 E6-18868 E6-18881 Grants and cooperative agreements; availability, etc.: Sustainable Fisheries Leadership Awards Program, 65471-65472 06-9116 Meetings: Science Advisory Board, 65472-65473 E6-18869 Reports and guidance documents; availability, etc.: Sea turtle conservation strategy for Atlantic and Gulf of Mexico fisheries; state trawl fishery characterizations; comment request, 65473-65474 E6-18882 Scientific research permit applications, determinations, etc., 65474-65476 E6-18866 National Park National Park Service PROPOSED RULES Special regulations:

Golden Gate National Recreation Area Dog Management Negotiated Rulemaking Advisory Committee Meeting; canceled, 65446 06-9109 NOTICES Meetings: Boston Harbor Islands Advisory Council, 65543 E6-18898 National Telecommunications National Telecommunications and Information Administration NOTICES Meetings: Digital-to-analog converter box coupon program, 65476 E6-18828 NRCS Natural Resources Conservation Service NOTICES Environmental statements; record of decision: Rockhouse Creek Watershed, KY, 65456 E6-18893 Nuclear Nuclear Regulatory Commission RULES National Source Tracking System; manufacture, transfer, receipt, or disposal of nationally tracked sealed sources; reporting requirements, 65686-65709 E6-18713 Personnel Personnel Management Office NOTICES Senior Executive Service Performance Review Board; membership, 65546-65547 E6-18789 Postal Postal Service NOTICES Meetings;

Sunshine Act, 65547 06-9131 Presidential Presidential Documents EXECUTIVE ORDERS Committees; establishment, renewal, termination, etc.: Identity Theft Task Force; amendment to Executive order 13402 (EO 13414), 65365 06-9148 ADMINISTRATIVE ORDERS Brazil; drug interdiction assistance (Presidential Determination) No. 2007-3 of October 16, 2006, 65369 06-9158 International Criminal Court; waiving prohibition on United States military assistance to parties to the Rome Statute (Presidential Determination) No. 2006-27 of September 29, 2006, 65367 06-9157 Public Public Debt Bureau See Fiscal Service SEC Securities and Exchange Commission RULES Securities:

Tender-offer best-price rules; amendments, 65393-65409 E6-18815 NOTICES Agency information collection activities; proposals, submissions, and approvals, 65547-65552 E6-18790 E6-18792 E6-18794 E6-18795 E6-18803 E6-18830 Investment Company Act of 1940: Fidelity Management & Research Co., et al., 65552-65554 E6-18890 Self-regulatory organizations; proposed rule changes: Chicago Board Options Exchange, Inc., 65554-65555 E6-18793 National Association of Securities Dealers, Inc., 65555-65559 E6-18798 New York Stock Exchange LLC, 65559-65561 E6-18791 NYSE Arca, Inc., 65561-65562 E6-18829 SBA Small Business Administration NOTICES Agency information collection activities; proposals, submissions, and approvals, 65562 E6-18920 State State Department NOTICES Agency information collection activities; proposals, submissions, and approvals, 65562-65563 E6-18870 Culturally significant objects imported for exhibition:

Jasper Johns: An Allegory of Painting (1955-1965), 65563 E6-18876 Grants and cooperative agreements; availability, etc.: World Expo 2010, U.S. pavilion/exhibition; fundraising, construction, development, organization, and management, 65563-65566 E6-18877 Surface Surface Transportation Board NOTICES Railroad operation, acquisition, construction, etc.: BNSF Railway Co., 65568 E6-18899 Rail services abandonment: BNSF Railway Co., 65567-65568 E6-18647 TVA Tennessee Valley Authority NOTICES Agency information collection activities; proposals, submissions, and approvals, 65566-65567 E6-18820 E6-18867 Transportation Transportation Department See Federal Aviation Administration See Surface Transportation Board Treasury Treasury Department See Alcohol and Tobacco Tax and Trade Bureau See Fiscal Service See Internal Revenue Service NOTICES Agency information collection activities; proposals, submissions, and approvals, 65568-65569 E6-18848 E6-18849 Separate Parts In This Issue Part II Environmental Protection Agency, 65574-65660 06-8763 Part III Interior Department, Fish and Wildlife Service, 65662-65683 06-9095 Part IV Nuclear Regulatory Commission, 65686-65709 E6-18713 Reader Aids Consult the Reader Aids section at the end of this issue for phone numbers, online resources, finding aids, reminders, and notice of recently enacted public laws.

To subscribe to the Federal Register Table of Contents LISTSERV electronic mailing list, go to http://listserv.access.gpo.gov and select Online mailing list archives, FEDREGTOC-L, Join or leave the list (or change settings); then follow the instructions. 71 216 Wednesday, November 8, 2006 Rules and Regulations DEPARTMENT OF AGRICULTURE Grain Inspection, Packers and Stockyards Administration 7 CFR Parts 800 and 801 RIN 0580-AA95 Official Fees and Tolerances for Barley Protein Testing AGENCY:

Grain Inspection, Packers and Stockyards Administration, USDA. ACTION: Interim rule with request for comment. SUMMARY: The Grain Inspection, Packers and Stockyards Administration (GIPSA) previously extended its official inspection program to include testing of barley protein. Testing is provided using near-infrared spectroscopy analyzers that were previously approved for different grains. GIPSA is establishing in the fee schedule a generic fee for all near-infrared measurements

(NIR)and nuclear magnetic resonance

(NMR)analyses, which is identical to existing fees. The fee for barley protein testing is included in this fee and is identical to the fees already established for other measurements (wheat protein; soybean oil and protein; and corn oil, protein, and starch). Also, GIPSA is amending regulations under the United States Grain Standards Act (USGSA) to establish performance tolerances for protein analyzers used to predict the percentage of protein in barley. DATES: *Effective Date:* November 9, 2006. *Comment Date:* Comments must be received on or before January 8, 2007. ADDRESSES: We invite you to submit comments on this interim rule. You may submit comments by any of the following methods: • *E-mail:* Send comments via electronic mail to *comments.gipsa@usda.gov.* • *Mail:* Send hardcopy written comments to Tess Butler, GIPSA, USDA, 1400 Independence Avenue, SW., Room 1647-S, Washington, DC 20250-3604. • *Fax:* Send comments by facsimile transmission to

(202)690-2755. • *Hand Deliver or Courier:* Deliver comments to: Tess Butler, GIPSA, USDA, 1400 Independence Avenue, SW., Room 1647-S, Washington, DC 20250-3604. • *Federal eRulemaking Portal:* Go to *http://www.regulations.gov.* Follow the online instructions for submitting comments. *Instructions:* All comments should make reference to the date and page number of this issue of the **Federal Register** . *Read Comments:* All comments will be available for public inspection in the above office during regular business hours (7 CFR 1.27(b)). FOR FURTHER INFORMATION CONTACT: John C. Giler, Acting Director, Field Management Division, at his e-mail address: *John.C.Giler@usda.gov* or telephone him at

(202)720-0228. SUPPLEMENTARY INFORMATION: Executive Order 12866 and Regulatory Flexibility Act This interim rule has been determined to be not significant for purposes of Executive Order 12866 and, therefore, has not been reviewed by the Office of Management and Budget (OMB). The Administrator of GIPSA has determined that this rule will not have a significant impact on a substantial number of small entities as defined in the Regulatory Flexibility Act (5 U.S.C. 601 *et seq.* ). Currently, near-infrared spectroscopy analyzers are being used to determine wheat protein; soybean oil and protein; and corn oil, protein, and starch in both domestic and export markets. This rule establishes tolerances to expand the use of currently approved near-infrared spectroscopy analyzers to test barley protein and establishes a generic fee for all NIR and NMR testing that is identical to current fees. Testing for barley protein is included in this fee. There are 58 official agencies (46 private entities, 12 States) that are designated and/or delegated by GIPSA to perform official grain inspection services. Most of the agencies could be considered small entities under Small Business Administration criteria. The extent to which these agencies will choose to provide this service is difficult to quantify because GIPSA is offering this service on a request basis, and locations where service is requested infrequently may make arrangements with neighboring agencies to provide the service (7 CFR 800.196(g)(1)). GIPSA believes that offering this service would have a beneficial effect on those agencies electing to provide the service. For the 2006/2007 Market Year (June to May), USDA's Economic Research Service estimated the U.S. Barley Supply to be 303,000,000 bushels. Between June 2006 and September 2006 (the months for which we have data), 20,010,000 bushels of barley were tested for protein. Of the Official Agencies, 10 performed barley protein tests in the first 11 months of fiscal year 2006. There were 5,176 barley protein tests performed; of those 2,624 were tests performed for trucks and rail cars, 2,546 were tests performed on submitted samples, and 6 were performed locally, such as within a grain elevator. According to USDA's National Agricultural Statistics Service, there are 24,747 farms (producers) in the barley for grain category. We do not have estimates for the number of grain handlers, exporters, and feedlot operators that may be involved in submitting barley for protein testing. In general, many producers, grain handlers, exporters, and feedlot operators may be considered small entities under Small Business Administration criteria. Further, grain handlers and exporters often use testing results to determine value and premiums. The extent to which these entities will request the official barley protein or the impact of offering this service is difficult to quantify. GIPSA believes that barley producers, feedlot operators, grain handlers, and exporters will rely on the official system to provide reliable testing procedures and accurate results that the market can rely on to negotiate price, value, and premiums. Fees currently are charged for NIR testing. The fees charged by GIPSA are $2.25 per test when the service is performed at an applicant's facility in an onsite FGIS laboratory, and when an inspection service is performed at a location other than an applicant's facility in an FGIS laboratory the fees are $10.00 per test for an original inspection service and $17.70 for an appeal inspection service. The generic fee is the same as fees charged for current individual tests and their impact on applicants for services will vary depending upon usage since these tests are on a request basis. Executive Order 12988 Executive Order 12988, Civil Justice Reform, instructs each executive agency to adhere to certain requirements in the development of new and revised regulations in order to avoid unduly burdening the court system. This interim rule has been reviewed under this Executive Order. This interim rule is not intended to have a retroactive effect. The United States Grain Standards Act provides in Section 87g that no State or subdivision may require or impose any requirements or restrictions concerning the inspection, weighing, or description of grain under the Act. Otherwise, this interim rule will not preempt any State or local laws, regulations, or policies unless they present irreconcilable conflict with this rule. There are no administrative procedures which must be exhausted prior to any judicial challenge to the provisions of this interim rule. Paperwork Reduction Act In accordance with the Paperwork Reduction Act of 1995, the recordkeeping and reporting burden imposed by Parts 800 and 801 were previously approved by OMB under control number 0580-0013 and will not be affected by this rule. GIPSA is committed to compliance with the Government Paperwork Elimination Act, which requires Government agencies, in general, to provide the public the option of submitting information or transacting business electronically to the maximum extent possible. Background On November 4, 2004, GIPSA issued a **Federal Register** notice (69 FR 64269-64270), announcing an intent to implement barley protein measurement as official criteria under the United States Grain Standards Act (USGSA) effective July 1, 2005. The **Federal Register** notice is available on the GIPSA Web site at *http://www.gipsa.usda.gov.* This provides the barley industry with accurate results for protein that the market can rely on to negotiate price, value, and premium. Fees GIPSA collects fees for providing official testing services to cover, as nearly as practicable, GIPSA's costs for performing the service, including related administrative and supervisory costs. Testing procedures and time necessary to determine protein in barley using the approved near-infrared transmittance

(NIRT)analyzers are the same as those required for NIRT wheat protein; soybean oil and protein; and corn oil, protein, and starch determinations. Accordingly, the fee to test barley is the same as for tests for the above cited commodities. The fee is $2.25 per test when the service is performed at an applicant's facility in an onsite FGIS laboratory, and for services performed at a location other than an applicant's facility in an FGIS laboratory the fees will be $10.00 per test for an original inspection service and $17.70 per test for an appeal inspection service. Further, since the fees for near-infrared

(NIR)analysis are the same as the fees for nuclear magnetic resonance

(NMR)analysis, these fees are included in a generic NIR and NMR analysis fee. This should simplify the fee schedule and will not require a regulatory fee change when new NIR and NMR analysis are available for other grain products. Specifically, in 7 CFR 800.71, in tables 1 and 2, we will add a single new fee for “NIR and NMR analysis (protein, oil, starch, etc.)” to replace the individual fees currently listed for the following 4 categories:

(1)Corn oil, protein, and starch (one of any combination),

(2)soybean protein and oil (one or both),

(3)wheat protein (per test), and

(4)sunflower (per test). We will renumber the remaining fees listed in table 1, section 2 and table 2, sections 1 and 2. We are not making any other changes to the remaining fee amounts or categories at this time. Tolerances We run standard reference samples through the equipment to evaluate the accuracy of the equipment; for barley, the standard reference samples sets typically weigh between 650 and 750 grams. Due to the natural variation in individual kernels of barley and other sources of variability, each time we test the barley the testing equipment is likely to produce slightly different results. Therefore, we determine the allowable amount of differences between the test results from the standard reference sample and the expected outcome. We refer to this amount as the tolerance, which is the variation we allow for the equipment to produce accurate results. We determined that, based upon the performance of the instruments and calibration, the maintenance tolerance will be 0.20 percent mean deviation from the national standard NIRS instruments for the NIRS analyzers used in performing official inspections. We determined that this level of accuracy will provide reliable testing procedures and accurate results to meet prospective official customer needs and that the market can rely on to negotiate price, value, and premium. We will apply this tolerance according to testing instructions found in the GIPSA Near-Infrared Transmittance

(NIRT)Handbook. We are adding this tolerance as a new paragraph (b)(4) in 9 CFR 801.7. Currently, 7 CFR 801.7 includes tolerances for

(1)NIRS wheat protein analyzers,

(2)NIRS soybean oil and protein analyzers, and

(3)NIRS corn oil, protein, and starch analyzers. As with other commodities for which NIRS analyzers are used, we will use the chemical reference protein determinations to reference and calibrate official NIRS instruments in accordance with the Combustion Method, AOAC International Method 992.23, which we previously incorporated by reference into 7 CFR 801.7. No change to the incorporation is required for barley protein testing. Immediate Action Immediate action is necessary for good cause under 5 U.S.C. 553. The Administrator has determined that it is impracticable, unnecessary, and contrary to the public interest to give preliminary notice prior to putting this rule in effect and good cause exists for not postponing the effective date of this rule until 30 days after publication in the **Federal Register** because

(1)the rule simplifies the current fee schedule by establishing a generic fee for all NIR and NMR testing that is the same as fee charged for individual tests and

(2)includes in Part 801 maintenance tolerances for NIRS barley protein analyzers. We will consider all comments we receive during the comment period for this interim rule (see DATES above). After the comment period closes, we will publish another document in the **Federal Register** . The document will include a discussion of any comments we received and any amendments we are making to the rule. List of Subjects 7 CFR Part 800 Administrative practice and procedure, Conflict of interests, Exports, Freedom of information, Grains, Intergovernmental relations, Penalties, Reporting and recordkeeping requirements. 7 CFR Part 801 Exports, Grains, Scientific equipment. For the reasons set out in the preamble, we are amending 7 CFR parts 800 and 801 as follows: PART 800—GENERAL REGULATIONS 1. Revise the authority citation for part 800 to read as follows: Authority: 7 U.S.C. 71-87k. 2. Amend § 800.71 by revising Table 1(2) (i through xi) and revising Table 2(1)(v) and (2)(ii) in Schedule A of paragraph

(a)to read as follows: § 800.71 Fees Assessed by the Service.

(a)* * * Table 1.—Fees for Official Services Performed at an Applicant's Facility in an Onsite FGIS Laboratory 1 Schedule A.—Fees for Official Inspection and Weighing Services Performed in the United States * * * * * * *

(2)Additional Tests (cost per test, assessed in addition to the hourly rate): 3

(i)Aflatoxin (rapid test kit method) $10.00

(ii)NIR or NMR Analysis (protein, oil, starch, etc.) 2.25

(iii)Vomitoxin (qualitative) 12.50

(iv)Vomitoxin (quantitative) 18.50

(v)Waxy corn (per test) 2.25

(vi)Fees for other tests not listed above will be based on the lowest noncontract hourly rate

(vii)Other services

(a)Class Y Weighing (per carrier)

(1)Truck/container 0.30

(2)Railcar 1.25

(3)Barge 2.50 * * * * * * * Table 2.—Services Performed at Other Than an Applicant's Facility in an FGIS Laboratory 1 2

(1)Original Inspection and Weighing (Class X) Services * * *

(v)Additional tests (excludes sampling):

(a)Aflatoxin (rapid test kit method) $30.00

(b)NIR or NMR Analysis (protein, oil, starch, etc.) 10.00

(c)Vomitoxin (qualitative) 31.00

(d)Vomitoxin (quantitative) 38.50

(e)Waxy corn (per test) 10.00

(f)Canola (per test_00 dip test) 10.00

(g)Pesticide Residue Testing: 3

(1)Routine Compounds (per sample) 216.00

(2)Special Compounds (per hour per service representative) 115.00

(h)Fees for other tests not listed above will be based on the lowest noncontract hourly rate from Table 1.

(2)Appeal inspection and review of weighing service. 4 * * *

(ii)Additional tests (assessed in addition to all other applicable tests):

(a)Aflatoxin (rapid test kit method) $30.00

(b)NIR or NMR Analysis (protein, oil, starch, etc.) 17.70

(c)Vomitoxin (per test-qualitative) 41.00

(d)Vomitoxin (per test-quantitative) 47.00

(e)Vomitoxin (per test-HPLC Board Appeal) 141.00

(f)Pesticide Residue Testing: 3

(1)Routine Compounds (per sample) 216.00

(2)Special Compounds (per hour per service representative) 115.00

(g)Fees for other tests not listed above will be based on the lowest noncontract hourly rate from Table 1. * * * * * * * PART 801—[AMENDED] 3. Revise the authority for part 801 to read as follows: Authority: 7 U.S.C. 71-87k 4. Amend § 801.7 by adding a new paragraph (b)(4) to read as follows: § 801.7 Reference methods and tolerances for near-infrared spectroscopy

(NIRS)analyzers.

(b)* * *

(4)NIRS barley protein analyzers. The maintenance tolerances for the NIRS analyzers used in performing official inspections for determination of barley protein content are 0.20 percent mean deviation from the national standard NIRS instruments, which are referenced and calibrated to the Combustion method, AOAC International Method 992.23. Pat Donohue-Galvin, Acting Administrator, Grain Inspection, Packers and Stockyards Administration. [FR Doc. E6-18860 Filed 11-7-06; 8:45 am] BILLING CODE 3410-KD-P DEPARTMENT OF AGRICULTURE Agricultural Marketing Service 7 CFR Part 981 [Docket No. FV06-981-2 FR] Almonds Grown in California; Changes to Incoming Quality Control Requirements AGENCY: Agricultural Marketing Service, USDA. ACTION: Final rule. SUMMARY: This rule changes the incoming quality control requirements under the administrative rules and regulations of the California almond marketing order (order). The order regulates the handling of almonds grown in California and is administered locally by the Almond Board of California (Board). These changes will help minimize the risk of aflatoxin in almonds by removing inedible kernels from human consumption. Inedible almonds are poor quality kernels or pieces of defective kernels that may be contaminated with aflatoxin. This action is intended to improve the overall quality of almonds placed into consumer channels. EFFECTIVE DATE: This final rule becomes effective on November 9, 2006. FOR FURTHER INFORMATION CONTACT: Maureen T. Pello, Assistant Regional Manager, or Kurt Kimmel, Regional Manager, California Marketing Field Office, Marketing Order Administration Branch, Fruit and Vegetable Programs, AMS, USDA, telephone:

(559)487-5901, Fax:

(559)487-5906, or E-mail: *Maureen.Pello@usda.gov,* or *Kurt.Kimmel@usda.gov. * Small businesses may request information on complying with this regulation by contacting Jay Guerber, Marketing Order Administration Branch, Fruit and Vegetable Programs, AMS, USDA, 1400 Independence Avenue, SW., STOP 0237, Washington, DC 20250-0237; telephone:

(202)720-2491, Fax:

(202)720-8938, or E-mail: *Jay.Guerber@usda.gov.* SUPPLEMENTARY INFORMATION: This rule is issued under Marketing Order No. 981, as amended (7 CFR part 981), regulating the handling of almonds grown in California, hereinafter referred to as the “order.” The order is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.” The Department of Agriculture

(USDA)is issuing this rule in conformance with Executive Order 12866. This rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule is not intended to have retroactive effect. This rule will not preempt any State or local laws, regulations, or policies, unless they present an irreconcilable conflict with this rule. The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 608c(15)(A) of the Act, any handler subject to an order may file with USDA a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with law and request a modification of the order or to be exempted therefrom. Such handler is afforded the opportunity for a hearing on the petition. After the hearing USDA would rule on the petition. The Act provides that the district court of the United States in any district in which the handler is an inhabitant, or has his or her principal place of business, has jurisdiction to review USDA's ruling on the petition, provided an action is filed not later than 20 days after the date of the entry of the ruling. This rule changes the incoming quality control requirements under the administrative rules and regulations of the order. These changes will help minimize the risk of aflatoxin in almonds by removing inedible almonds from human consumption. Inedible almonds are poor quality kernels or pieces of defective kernels that may be contaminated with aflatoxin. These changes are intended to improve the overall quality of almonds placed into consumer channels, and were recommended by the Board at a meeting on May 18, 2006. Section 981.42 of the order provides authority for a quality control program. Paragraph

(a)of that section requires handlers to obtain incoming inspections on almonds received from growers to determine the percent of inedible kernels in each lot of any variety. Based on these inspections, handlers incur an inedible disposition obligation. They must satisfy their obligation by disposing of inedible almonds in outlets such as oil and animal feed. Section 981.442(a)(4) of the order's administrative rules and regulations specifies that the weight of inedible kernels in excess of 1 percent of kernel weight shall constitute that handler's disposition obligation. Handlers must satisfy the disposition obligation by delivering packer pickouts, kernels rejected in blanching, pieces of kernels, meal accumulated in manufacturing, or other material, to crushers, feed manufacturers, feeders, or dealers in nut wastes on record with the Board as accepted users of such product. Accepted users dispose of this material through non-human consumption outlets. Paragraph (a)(5) of § 981.442 specifies further that at least 25 percent of a handler's total annual disposition obligation be satisfied with inedible kernels as defined under § 981.408 (hereinafter referred to as “true inedibles”). Handlers with total annual inedible obligations of less than 1,000 pounds are exempt from the 25 percent requirement. Board research has shown that aflatoxin in almonds is directly related to insect damage in inedible kernels. In order to help minimize the risk of aflatoxin in almonds, the Board recommended reducing the tolerance for inedible kernels from 1 to 0.50 percent, and increasing the percent of a handler's total annual inedible obligation that must be true inedibles from 25 to 50 percent. Such revisions are intended to improve the overall quality of almonds placed into consumer channels. All of the Board's members supported the change regarding true inedibles, but three of the Board's 10 members opposed the change to reduce the incoming tolerance for inedible kernels (the Board's chairperson abstained). Those opposed pointed to the existing 2 percent voluntary outgoing tolerance and expressed concern about additional costs that handlers may incur to separate out inedible kernels. The majority of Board members supported both changes. Paragraphs (a)(4) and (a)(5) of § 981.442 are revised accordingly. Final Regulatory Flexibility Analysis Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA), the Agricultural Marketing Service

(AMS)has considered the economic impact of this rule on small entities. Accordingly, AMS has prepared this final regulatory flexibility analysis. The purpose of the RFA is to fit regulatory actions to the scale of business subject to such actions in order that small businesses will not be unduly or disproportionately burdened. Marketing orders issued pursuant to the Act, and the rules issued thereunder, are unique in that they are brought about through group action of essentially small entities acting on their own behalf. Thus, both statutes have small entity orientation and compatibility. There are approximately 6,000 producers of almonds in the production area and approximately 115 handlers subject to regulation under the marketing order. Small agricultural producers are defined by the Small Business Administration (13 CFR 121.201) as those having annual receipts of less than $750,000, and small agricultural service firms are defined as those whose annual receipts are less than $6,500,000. Data for the most recently completed crop year indicate that about 52 percent of the handlers shipped under $6,500,000 worth of almonds. Dividing average almond crop value for 2003-2005 reported by the National Agricultural Statistics Service ($2.171 billion) by the number of producers (6,000) yields an average annual producer revenue estimate of about $362,000. Based on the foregoing, about half of the handlers and a majority of almond producers may be classified as small entities. This rule revises paragraphs (a)(4) and (a)(5) of § 981.442 of the order's administrative rules and regulations regarding inedible almonds. These changes will help minimize the risk of aflatoxin in almonds by removing inedible kernels from human consumption. Inedible almonds are poor quality kernels or pieces of defective kernels that may be contaminated with aflatoxin. Specifically, this action reduces the tolerance for inedible kernels in each variety of almonds received by a handler from 1 to 0.50 percent, and increases the percent of a handler's annual inedible obligation that must be satisfied with dispositions containing inedible almonds from 25 to 50 percent. Authority for these changes is provided in § 981.42(a) of the order. Regarding the impact of this action on affected entities, this action is intended to improve the overall quality of almonds placed into consumer channels and therefore should be beneficial to the industry. In addition, this rule is not expected to change handler inspection costs. Handlers must currently have an incoming inspection done on each lot of almonds received to determine the percent of inedible kernels. Additionally, inedible almond dispositions must be inspected to determine the percent of inedible kernels in such dispositions. Such inspections are performed by the inspection agency, which means the Federal-State Inspection Service. The inspection agency charges a fee of $40 per hour, plus $0.75 per ton, with a minimum total fee of $55, to perform an inedible disposition inspection. The Board considered various alternatives and options before making its recommendation on inedible almonds. It was decided that a 0.50 percent tolerance was appropriate rather than 0 percent. As previously stated, Board members opposed pointed to the existing 2 percent voluntary outgoing tolerance and expressed concern about additional costs that handlers may incur to separate out inedible kernels. Ultimately, the majority of Board members supported both changes. The Board's Food Quality and Safety

(FQS)Committee met again via teleconference on June 13, 2006, and concurred with the Board's recommendation. This action imposes no additional reporting and recordkeeping burden on California almonds handlers. In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the information collection requirements in this rule have been approved by the Office of Management and Budget

(OMB)under OMB Control No. 0581-0178, Vegetable and Specialty Crops. As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies. The AMS is committed to complying with the E-Government Act, to promote the use of the Internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes. USDA has not identified any relevant Federal rules that duplicate, overlap, or conflict with this rule. There are U.S. Standards for Grades of Shelled Almonds (7 CFR 51.2105 through 51.2131) and U.S. Standards for Grades of Almonds in the Shell (7 CFR 51.2075 through 51.2091) issued under the Agricultural Marketing Act of 1946 (7 U.S.C. 1621 through 1627). However, these standards are voluntary for the almond industry. Additionally, the meetings were widely publicized throughout the California almond industry and all interested persons were invited to attend the meetings and participate in deliberations on all issues. Like all Board meetings, the task force meetings on March 23 and April 26, 2006, the FQS Committee meetings on April 11, May 8, and June 13, 2006, and the Board meeting on May 18, 2006, were public meetings and all entities, both large and small, were able to express views on this issue. A proposed rule concerning this action was published in the **Federal Register** on August 16, 2006 (71 FR 47152). Copies of the proposed rule were also mailed or sent via facsimile to all almond handlers. Finally, the proposal was made available through the Internet by USDA and the Office of the Federal Register. A 7-day comment period ending August 23, 2006, was provided for interested persons to respond to the proposal. Five comments were received from industry handlers opposed to the proposed reduced tolerance for inedible kernels from 1 to 0.50 percent. All the points raised in these five comments were previously discussed by the almond industry at the meetings cited earlier in this rule. Two of the commenters believe that reducing the incoming tolerance for inedible kernels will not remove additional inedible almonds from the market. They pointed to the existing voluntary outgoing tolerances for seriously damaged kernels in the U.S. Standards for Grades of Shelled Almonds (1 percent tolerance for U.S. Fancy and 2 percent tolerance for U.S. Select Sheller run). One commenter also pointed to the Board's voluntary aflatoxin sampling plan that recommends that loads of almonds with over 2 percent serious damage be tested for aflatoxin. The commenters contend that reducing the incoming tolerance will not cause handlers to ship almonds at a lower outgoing tolerance into the market. We disagree with these comments. Reducing the incoming tolerance for inedible kernels will remove more inedible almonds from channels of commerce. Let us assume that the annual almond production is 1 billion pounds, of which 3 percent or 30 million pounds (.03 × 1 billion pounds) are inedible. The current inedible program provides for a 1 percent tolerance, or 10 million pounds (.01 × 1 billion pounds) of almonds that can be inedible and sold into normal market channels. Thus, 20 million pounds (.02 × 1 billion pounds) must be disposed of into specified outlets for inedible almonds. Of the 20 million pounds, only 25 percent, or 5 million pounds, must be true inedibles, and the remaining 15 million pounds can be edible, inedible, or meal. In comparison, the revised inedible program provides for a tolerance of 0.50 percent, or 5 million pounds (.005 × 1 billion pounds) of almonds that can be inedible and sold into normal market channels. Thus, 25 million pounds (.025 × 1 billion pounds) must be disposed of into specified outlets for inedible almonds. Of the 25 million pounds, 50 percent, or 12.5 million pounds, must be true inedibles, and the remaining 12.5 million pounds can be edible, inedible, or meal. In summary, a total of 5 million pounds of true inedible almonds are removed from the market annually under the current program, and 12.5 million pounds of almonds will be removed annually under the revised program. Thus, the revised program will remove an additional 7.5 million pounds of inedible almonds from the market. A commenter also stated that reducing the incoming tolerance from 1 to 0.50 percent may provide an unfair advantage for larger processors that have blanching facilities. We disagree. The process of blanching involves scalding the almonds with hot water to remove the skins, and then running the almonds through a series of rollers to remove any remaining skin and smooth the almond surface. Handlers with blanching equipment may clean up inedible almonds for market. However, increasing the percent of a handler's total annual obligation that must be true inedible from 25 to 50 percent will reduce the amount of inedible almonds that are available to be cleaned up with blanching equipment. Additionally, the revised tolerances apply to all handlers throughout the industry, regardless of size or processing capabilities. Another commenter expressed concern that the reduced incoming tolerance is only being applied to the California almond industry, and that other producing countries like Spain and Australia would not be impacted by the change. The commenter added that the real concern to the California industry is aflatoxin, and suggested that the industry focus more on testing almonds prior to shipment rather than tightening up the inedible almond program under the order. The comment correctly points out that the revised tolerances are applied under the California almond marketing order, and are only applicable to domestic California production. However, concerning the issue of aflatoxin, a number of initiatives have been recommended by the Board. For example, the Board has endorsed a voluntary aflatoxin sampling plan that recommends that loads of almonds with over 2 percent serious damage be tested for aflatoxin. Additionally, Board research has shown that aflatoxin in almonds is directly related to insect damage in inedible kernels. In order to help minimize the risk of aflatoxin, the Board recommended reducing the tolerance for inedible kernels from 1 to 0.50 percent, and increasing the percent of a handler's total annual inedible obligation that must be true inedibles from 25 to 50 percent. This rule implements the Board's recommendation. Two commenters expressed concern that this issue was not fully deliberated by the Board and/or its committees. However, the Board formed a task force to address the industry's concerns regarding aflatoxin. The task force met on March 23 and April 26, 2006, and recommended reducing the incoming tolerance from 1 to 0 percent, and increasing the percent of a handler's total annual inedible obligation that must be true inedibles from 25 to 50 percent. The FQS Committee reviewed the task force's proposal on April 11 and again on May 8, 2006. After much discussion, the FQS Committee reached a compromise and recommended that the incoming tolerance be reduced from 1 to 0.50 percent. The FQS Committee concurred with the proposal regarding true inedibles. The Board considered the issue on May 18, 2006. Ultimately, the majority of Board members concurred with the FQS Committee's proposal. The FQS Committee met again via teleconference on June 13, 2006, revisited the issue, and reaffirmed its previous recommendation that was ultimately approved by the Board and submitted to USDA. Thus, the issue was fully deliberated at several meetings, and interested persons had ample opportunity to express their views and participate in the discussions. Accordingly, no changes will be made to the rule as proposed, based on the comments received. A small business guide on complying with fruit, vegetable, and specialty crop marketing agreements and orders may be viewed at: *http://www.ams.usda.gov/fv/moab.html* . Any questions about the compliance guide should be sent to Jay Guerber at the previously mentioned address in the FOR FURTHER INFORMATION CONTACT section. After consideration of all relevant material presented, including the information and recommendation submitted by the Board and other available information, it is hereby found that this rule, as hereinafter set forth, will tend to effectuate the declared policy of the Act. Pursuant to 5 U.S.C. 553, it is also found and determined that good cause exists for not postponing the effective date of this rule until 30 days after publication in the **Federal Register** because the 2006-07 crop year began on August 1, 2006, and handlers are disposing of inedible almonds. These changes should be in effect for as much of the crop year as possible. Handlers are aware of this action which was recommended at a public meeting. Additionally, a 7-day comment period was provided for in the proposed rule. List of Subjects in 7 CFR Part 981 Almonds, Marketing agreements, Nuts, Reporting and recordkeeping requirements. For the reasons set forth in the preamble, 7 CFR part 981 is amended as follows: PART 981—ALMONDS GROWN IN CALIFORNIA 1. The authority citation for 7 CFR part 981 continues to read as follows: Authority: 7 U.S.C. 601-674. 2. Section 981.442 is amended by revising the first sentence of paragraph (a)(4)(i) and the eleventh sentence in paragraph (a)(5) to read as follows: § 981.442 Quality control.

(a)* * *

(4)*Disposition obligation.*

(i)The weight of inedible kernels in excess of 0.50 percent of kernel weight reported to the Board of any variety received by a handler shall constitute that handler's disposition obligation. * * *

(5)*Meeting the disposition obligation.* * * * At least 50 percent of a handler's total crop year inedible disposition obligation shall be satisfied with dispositions consisting of inedible kernels as defined in § 981.408: *Provided,* That this 50 percent requirement shall not apply to handlers with total annual obligations of less than 1,000 pounds. * * * Dated: November 3, 2006. Lloyd C. Day, Administrator, Agricultural Marketing Service. [FR Doc. 06-9133 Filed 11-3-06; 4:34 pm]

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