Rules and Regulations. Final rule
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BILLING CODE 4160-01-S DEPARTMENT OF TRANSPORTATION Federal Highway Administration 23 CFR Part 635 [FHWA Docket No. FHWA-2006-23552] RIN 2125-AF18 Construction and Maintenance AGENCY: Federal Highway Administration (FHWA), DOT. ACTION: Final rule. SUMMARY: The FHWA is revising its regulations in 23 CFR part 635 subpart D to address Section 5514 of the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU). This law requires the FHWA to ensure that States provide for competition with respect to the specification of alternative types of culvert pipes.
These revisions will ensure that States provide for competition in the specification of alternative types of culvert pipes. DATES: *Effective Date:* December 15, 2006. FOR FURTHER INFORMATION CONTACT: For technical information: Mr. Gerald Yakowenko, Office of Program Administration (HIPA),
(202)366-1562. For legal information: Mr. Michael Harkins, Office of the Chief Counsel (HCC-30),
(202)366-4928, Federal Highway Administration, 400 Seventh Street, SW., Washington, DC 20590. Office hours are from 7:45 a.m. to 4:15 p.m., e.t., Monday through Friday, except Federal holidays. SUPPLEMENTARY INFORMATION: Electronic Access This document and all comments received by the U.S. DOT Dockets, Room PL-401, may be viewed through the Docket Management System
(DMS)at *http://dms.dot.gov* . It is available 24 hours each day, 365 days each year. Electronic submission and retrieval help and guidelines are available under the help section of this Web site. An electronic copy of this document may be downloaded from the **Federal Register** 's home page at *http://www.archives.gov* and the Government Printing Office's Web page at *http://www.access.gpo.gov/nara.* Background Section 5514 of the SAFETEA-LU (Pub. L. 109-59; Aug. 10, 2005), titled “Competition for Specification of Alternative Types of Culvert Pipes,” requires the Secretary of Transportation to ensure that States provide for competition with respect to the specification of alternative types of culvert pipes through requirements that are commensurate with competition requirements for other construction materials. The FHWA's policies in 23 CFR part 635 subpart D—General Material Requirements support the competitive bidding principles in Section 112 of Title 23 U.S. Code by providing for the broadest consideration of materials to encourage competition. Where alternative products are judged to be of satisfactory quality and equally acceptable on the basis of engineering and economic analysis, the FHWA requires equal consideration in the specification of materials. Notice of Proposed Rulemaking
(NPRM)The FHWA published a NPRM on April 17, 2006, at 71 FR 19667. We proposed to delete 23 CFR 635.411, paragraph
(d)and re-designate paragraphs
(e)and
(f)as
(d)and
(e)respectively. We also proposed to delete Appendix A to subpart D—“Summary of Acceptable Criteria for Specifying Types of Culvert Pipes” in its entirety. Appendix A to subpart D of 23 CFR part 635 was officially included in the FHWA's regulations on September 30, 1974. Appendix A contained the requirements concerning the specification, number and types of culvert pipes specified on Federal-aid highway construction projects. These requirements were intended to encourage competition and lower the cost of culvert pipes by encouraging the consideration of alternate culvert pipe materials in certain drainage installations. When Appendix A was codified in 1974, the universe of available culvert materials was very limited and the State DOT's experience with new culvert materials was equally limited. From a practical viewpoint, the culvert materials market consisted of two materials—reinforced concrete pipe and corrugated steel pipe (either plain galvanized or asphalt coated). At that time, the State DOTs were also limited by existing national materials specifications for these materials and it was difficult for new culvert manufacturers to enter the public transportation construction marketplace. Over the next thirty years, the competitive market changed significantly and American Association of State Highway and Transportation Officials (AASHTO) materials specifications are now available for various culvert materials such as: acrylonitrile butadiene styrene pipe, reinforced concrete pipe, corrugated aluminum pipe, corrugated steel pipe (with coatings of zinc, aluminum, asphalt or polymers), poly-vinyl chloride pipe and high-density polyethylene pipe. In order to implement the provisions of section 5514 of SAFETEA-LU and be consistent with the long-standing policy of ensuring the consideration of the largest number of appropriate alternatives that lead to the lowest overall life cycle cost, the FHWA proposed to delete Appendix A to subpart D of 23 CFR part 635. The deletion of Appendix A will eliminate the specific requirement for the consideration of alternative types of culverts for certain drainage installations. By doing so, the selection and specification of culvert types will be governed by the same regulatory policy for all other materials in 23 CFR 635.411, thus ensuring competition in the selection of pipes. Summary Discussion of Comments Received in Response to the NPRM The following discussion provides an overview of the comments received in response to the NPRM, and the FHWA's actions to resolve and address the issues raised by the respondents. Profile of Respondents We received responses from twenty-three entities. The respondents included: three State (DOTs), four associations, three consulting engineering firms, three firms involved with the manufacturing of culverts, and ten individuals. The four associations included: Uni-Bell PVC Pipe Association, the Plastic Pipe Institute, the American Concrete Pipe Association and the National Corrugated Steel Pipe Association. We classified the American Association of State Highway and Transportation Officials (AASHTO) as a State DOT because they represent State DOT interests. The AASHTO provided a consolidated response to the NPRM on behalf of its member States. Two State DOTs also provided their comments individually. Analysis of NPRM Comments and FHWA Response Fourteen commenters expressed support for the proposed changes in the NPRM. No commenter objected to the proposed changes in the NPRM. Nine commenters did not approve or disapprove of the proposed changes, but provided commentary for consideration in drafting the final rule. Supporting the Need for Change Nine commenters including: Chevron Philips Chemical Company LP, Advanced Drainage Systems, Inc., the Plastic Pipe Institute, ExxonMobil Chemical Company, Mr. Daniel J. Kuroter, Mr. Andrew P. Thomas, Clough Harbour & Associates LLP, Honorable Deborah Pryce and Jim Goddard stated that Appendix A to subpart D is outdated and does not reflect the realities in today's highly competitive culvert marketplace. We agree with this concern. The availability of different culvert materials and the State DOTs' experience with these materials has changed significantly since Appendix A was codified in 1974. This is one of the reasons why we elected to delete Appendix A. It is no longer necessary to have an FHWA requirement concerning the minimum number of alternative culvert specifications that are necessary for certain drainage installations. Many respondents expressed concerns regarding interpretations of Appendix A that have limited competition. The ADR and Associates and Mr. Andy Beard stated that some contracting agency interpretations of Appendix A led to non-competitive situations—exactly the opposite of what the FHWA intended. They indicated that such interpretations stifle competition by allowing highway project managers to ignore the wide range of culvert alternatives that currently exist. Mr. Daniel J. Kuroter, Mr. Andrew P. Thomas, and Clough Harbour & Associates LLP stated that the current regulations do not promote competition and are too frequently interpreted in ways that restrict competition. Advanced Drainage Systems, Inc. indicated that they have encountered certain States that routinely and arbitrarily restricted competition in the selection of drainage products. Mr. John Owen Hurd and Jim Goddard stated that Appendix A has allowed contracting agencies to circumvent the intent of the rules to encourage competition and specify only one pipe material if they so choose. We appreciate the concerns of these respondents in asserting that some contracting agencies may have used Appendix A as an excuse for not fully considering all reasonable culvert alternatives. With the deletion of Appendix A, contracting agencies will no longer be able to cite Appendix A as their basis for not considering other culvert alternatives. Other respondents suggested that the FHWA consider a revision, rather than a deletion of Appendix A. Honorable Deborah Pryce recommended that consideration be given to revising Appendix A to clarify the types and numbers of alternative products that are required for consideration in various drainage applications. Advanced Drainage Systems, Inc. and the Plastic Pipe Institute stated that a proper revision of Appendix A might have been more effective in requiring competition; however, they recognized that the proposed deletion of Appendix A could accomplish the same goal as long as it is properly enforced at the State level. We considered a revision rather than a deletion of Appendix A but elected not to do so for two reasons. First, Section 5514 requires the Secretary to “* * * ensure that States provide for competition with respect to the specification of alternative types of culvert pipes through requirements that are commensurate with competition requirements for other construction materials, as determined by the Secretary.” The FHWA does not have a specific policy requiring the specification, number and types of alternative materials for any other highway construction material. In all other areas of highway material specification, the contracting agency has the responsibility to consider all alternative products that are judged to be of satisfactory quality and equally acceptable on the basis of engineering and economic analyses. Thus, it is important to treat culvert materials the same as other materials by removing Appendix A. Second, the culvert materials industry is a highly competitive market and it would not be appropriate to limit the consideration of alternative materials through a revision of Appendix A. Many of the respondents recommended that the FHWA take additional enforcement and compliance actions to ensure real competition. The ADR and Associates and Mr. Andy Beard recommend that we take additional enforcement steps to ensure that the final rule results in the promotion of real competition. Advanced Drainage Systems, Inc. and the Plastic Pipe Institute recommended that the FHWA provide appropriate communications and enforcement actions if it is to meet the intent of Congress. Other commenters such as Chevron Philips Chemical Company LP, ADR and Associates, Mr. Andy Beard, ExxonMobil Chemical Company, Mr. Daniel J. Kuroter, Mr. Andrew P. Thomas, Clough Harbour & Associates LLP and Jim Goddard suggested that FHWA utilize appropriate incentives and penalties to ensure compliance. We recognize the concerns of these respondents who believe that culvert material competition has been limited in certain segments of the Federal-aid program. While the FHWA does not have the legal authority to utilize incentives to the States for enforcement purposes, the FHWA does have the authority to impose penalties if the FHWA determines that a State is not complying with Federal requirements. Pursuant to 23 CFR 1.36, the FHWA may withhold payment on a particular project, withhold approval of further projects, and take any other action the FHWA may deem appropriate. The FHWA will continue to exercise appropriate oversight over all Federal requirements and work with the States to ensure that these requirements are met. Maintaining the Status Quo Generally speaking, the AASHTO, two State DOT representatives and Ms. Lesly Tribelhorn were concerned that the final rule may require States to change their current State practices, thus limiting the flexibility they now have for culvert material selection. The AASHTO agreed that the proposed deletion of Appendix A will eliminate specific requirements for the consideration of alternative types of culverts for certain drainage installations, thus making the selection of culvert materials subject to the same FHWA regulations as the selection of all other materials. The AASHTO believed that this would provide flexibility and allow for the application of engineering judgment in selection and design of drainage facilities. However, AASHTO noted that the proposed change failed to recognize the complexities associated with the analysis, design, detailing and bidding of multiple culvert type specifications. The State of Rhode Island currently restricts the use of high-density polyethylene
(HDPE)pipe to a maximum culvert diameter of 24 inches. The Rhode Island representative was concerned that the proposed changes would require a revision of its culvert material selection policy to consider the use of HDPE pipes for culvert installations greater than 24 inches. Similarly, a representative from the Iowa DOT indicated that it was not opposed to the proposed rule, however, it did not want the final rule to limit or restrict the State's ability to specify certain pipe materials in specific drainage installations. Ms. Tribelhorn stated that there is a need to allow the States to use engineering judgment in the culvert selection process and contracting agencies should be allowed to use specific selection criteria without the FHWA requiring pipe alternatives in the bidding process. Ms. Tribelhorn questioned whether the deletion of Appendix A would allow for this flexibility. With the deletion of Appendix A, the FHWA's material selection policy will require the States to consider all available materials or products that are judged to be of satisfactory quality and equally acceptable on the basis of engineering and economic analyses. Where such products appear to be equal, alternative bidding practices must be used as required by 23 CFR 635.411(b). Where alternative products are determined to have different engineering and economic properties, contracting agencies may select a specific material or product based on life cycle cost criteria. In such cases, the contracting agency should document its material selection decision on a project or program basis as appropriate. The AASHTO further stated that it is often necessary to specify a certain type of culvert on higher functional classification roadways where major disruptions of traffic would occur if repairs or replacements were needed. The AASHTO stated that existing Appendix A to Subpart D provided the authority to do this. It raised the concern that the proposed deletion of Appendix A would result in the States having to justify and seek FHWA's approval for such installations. We disagree that the proposed change would result in additional work for the contracting agency (assuming that the agency is currently complying with the FHWA policy). The AASHTO recommended that the FHWA insert the following language in 23 CFR 635.411(b), at the end of the second sentence—“This provision is not intended to displace the owner's or their Professional Engineers responsibility to determine acceptable materials based on local performance history or owner's policies on material use.” It appears that the intent of this recommendation is to give the contracting agency the discretion to waive the requirement for alternate material bidding of equally acceptable products for various reasons. Mr. Jim Goddard commented that AASHTO's recommendation was written to permit those agencies still using single source, non-competitive standards to maintain the status quo. Mr. John Owen Hurd stated that AASHTO's recommendation would completely emasculate the intent of the proposed changes, permitting arbitrary selection of only one type of pipe material. We disagree with the recommendation proposed by AASHTO. The existing provisions in 23 CFR part 411 provides contracting agencies with sufficient flexibility to select materials or products that are of satisfactory quality and equally acceptable on the basis of engineering and economic analyses. Other Comments The National Corrugated Steel Pipe Association (NCSPA) noted its support for the intent of Section 5514 of SAFETEA-LU but provided specific recommendations regarding culvert type selection procedures. The NCSPA recommend that the FHWA require contracting agencies to set acceptable service life requirements and provide economic analyses of the alternates based on those requirements. The NCSPA believes that very few State DOT specifications have a service life requirement and the design methodology to adequately determine service life for all culvert alternatives in the varying environments. Furthermore, the NCSPA stated that under the current policy, the FHWA cannot be assured of proper life cycle cost analysis from each State DOT unless that State has specific service life requirements. We agree with the intent of the comment; however, this topic is not appropriate for inclusion in this regulation. It would be more appropriate to address this issue in an AASHTO guide specification or AASHTO guideline as is currently done for other highway materials. The American Concrete Pipe Association supported the proposed language in the NPRM, but recommended a revision to the first sentence in 23 CFR 635.411(b) to read as follows: “When there is available for purchase more than one nonpatented, nonproprietary material, semifinished or finished article or product that will fulfill the requirements for an item of work of a project and these available materials or products are proven to be of equal quality and material service life, perform the intended engineering function during the design life of the project, and equally acceptable on the basis of an engineering analysis and a present worth life cycle cost analysis, the PS&E for the project shall either contain or include by reference the specifications for each such material or product that is considered acceptable for incorporation in the work.” This revision would place more emphasis on life cycle costs rather than initial costs. We agree with the intent of this recommendation; however, we do not believe that the revision is necessary as contracting agencies already consider life cycle cost considerations in determining which materials are equally acceptable. Rulemaking Analyses and Notices Executive Order 12866 (Regulatory Planning and Review) and DOT Regulatory Policies and Procedures The FHWA has determined that this final rule is not a significant regulatory action within the meaning of Executive Order 12866 or significant within the meaning of Department of Transportation regulatory policies and procedures. We anticipate that the economic impact of this rulemaking will be minimal. These changes to the FHWA's Material or Product Selection policies are minor in nature. The deletion of Appendix A to subpart D of 23 CFR part 635 eliminates the specific requirement for the consideration of alternative types of culverts for certain drainage installations. Culvert pipes will be subject to the same selection policies as all other highway materials and products. This final rule will not adversely affect, in a material way, any sector of the economy. In addition, these changes will not interfere with any action taken or planned by another agency and will not materially alter the budgetary impact of any entitlements, grants, user fees, or loan programs. Regulatory Flexibility Act In compliance with the Regulatory Flexibility Act (Pub. L. 96-354, 5 U.S.C. 601-612) the FHWA has evaluated the effects of this final rule on small entities and has determined that the action will not have a significant economic impact on a substantial number of small entities. This final rule addresses material selection for States. As such, it affects only States and States are not included in the definition of small entity set forth in 5 U.S.C. 601. Therefore, the Regulatory Flexibility Act does not apply and the FHWA certifies that this action will not have a significant economic impact on a substantial number of small entities. Unfunded Mandates Reform Act of 1995 This final rule does not impose unfunded mandates as defined by the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, March 22, 1995, 109 Stat. 48). This rule will not result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $128.1 million or more in any one year. Additionally, the definition of “Federal Mandate” in the Unfunded Mandates Act excludes financial assistance of the type in which State, local, or tribal governments have authority to adjust their participation in the program in accordance with changes made in the program by the Federal government. The Federal-aid highway program permits this type of flexibility. Executive Order 13132 (Federalism) This final rule has been analyzed in accordance with the principles and criteria contained in Executive Order 13132, and the FHWA has determined that this action does not have sufficient federalism implications to warrant the preparation of a federalism assessment. The FHWA has also determined that this action does not preempt any State law or State regulation or affect the States' ability to discharge traditional State governmental functions. Executive Order 12372 (Intergovernmental Review) Catalog of Federal Domestic Assistance Program Number 20.205, Highway Planning and Construction. The regulations implementing Executive Order 12372 regarding intergovernmental consultation on Federal programs and activities apply to this program. Paperwork Reduction Act This action does not contain a collection of information requirement under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501-3520. National Environmental Policy Act The FHWA has analyzed this final rule for the purpose of the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4347) and has determined that this action will not have any effect on the quality of the environment. Executive Order 12630 (Taking of Private Property) This action will not affect the taking of private property or otherwise have taking implications under Executive Order 12630, Government Actions and Interface with Constitutionally Protected Property Rights. Executive Order 12988 (Civil Justice Reform) This action 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. Executive Order 13045 (Protection of Children) We have analyzed this final rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. The FHWA certifies that this action will not cause an environmental risk to health or safety that might disproportionately affect children. Executive Order 13175 (Tribal Consultation) The FHWA has analyzed this final rule under Executive Order 13175, dated November 6, 2000, and believes that this action will not have substantial direct effects on one or more Indian tribes; will not impose substantial direct compliance costs on Indian tribal governments; and will not preempt tribal laws. This final action addresses material selection by the States for Federal-aid highway projects and will not impose any direct compliance requirements on Indian tribal governments. Therefore, a tribal summary impact statement is not required. Executive Order 13211 (Energy Effects) We have analyzed this action under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use Dated May 18, 2001. 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 it is not likely to have a significant adverse effect on the supply, distribution, or use of energy. Therefore, a Statement of Energy Effects is not required. Regulation Identification Number A regulation identification number
(RIN)is assigned to each regulatory action listed in the Unified Agenda of Federal Regulations. The Regulatory Information Service Center publishes the Unified Agenda in April and October of each year. The RIN contained in the heading of this document can be used to cross-reference this action with the Unified Agenda. List of Subjects in 23 CFR Part 635 Grant programs—transportation, Highways and roads, Reporting and recordkeeping requirements. Issued on: November 7, 2006. J. Richard Capka, Federal Highway Administrator. In consideration of the foregoing, the FHWA proposes to amend part 635 of title 23, Code of Federal Regulations, as follows: PART 635—CONSTRUCTION AND MAINTENANCE 1. Revise the authority citation for part 635 to read as follows: Authority: Sec. 5514 of Pub. L. 109-59, 119 Stat. 1144; 23 U.S.C. 101 (note), 109, 112, 113, 114, 116, 119, 128, and 315; 31 U.S.C. 6505; 42 U.S.C. 3334, 4601 et seq.; Sec. 1041(a), Pub. L. 102-240, 105 Stat. 1914; 23 CFR 1.32; 49 CFR 1.48(b). § 635.411 [Amended] 2. Amend § 635.411 by removing paragraph
(d)and redesignating paragraphs
(e)and
(f)as
(d)and
(e)respectively. Appendix A to Subpart D [Removed] 3. Amend 23 CFR part 635, subpart D by removing Appendix A to Subpart D. [FR Doc. E6-19240 Filed 11-14-06; 8:45 am] BILLING CODE 4910-22-P DEPARTMENT OF THE TREASURY Alcohol and Tobacco Tax and Trade Bureau 27 CFR Part 9 [T.D. TTB-55] RIN 1513-AB32 Los Carneros Viticultural Area; Technical Amendment (2006R-224P) AGENCY: Alcohol and Tobacco Tax and Trade Bureau, Treasury. ACTION: Final rule; Treasury decision. SUMMARY: In this Treasury decision, the Alcohol and Tobacco Tax and Trade Bureau makes a technical amendment to its regulations to clarify the viticultural significance of the terms “Los Carneros” and “Carneros” in relation to the existing Los Carneros viticultural area. DATES: *Effective Date:* November 15, 2006. FOR FURTHER INFORMATION CONTACT: N. A. Sutton, Regulations and Rulings Division, Alcohol and Tobacco Tax and Trade Bureau, 925 Lakeville St., No. 158, Petaluma, CA 94952; phone 415-271-1254. SUPPLEMENTARY INFORMATION: Background on Viticultural Areas TTB Authority Section 105(e) of the Federal Alcohol Administration Act (the FAA Act, 27 U.S.C. 201 *et seq.* ) requires that alcohol beverage labels provide consumers with adequate information regarding product identity and prohibits the use of misleading information on those labels. The FAA Act also authorizes the Secretary of the Treasury to issue regulations to carry out its provisions. The Alcohol and Tobacco Tax and Trade Bureau
(TTB)administers these regulations. Part 4 of the TTB regulations (27 CFR part 4) allows the establishment of definitive viticultural areas and the use of their names as appellations of origin on wine labels and in wine advertisements. Part 9 of the TTB regulations (27 CFR part 9) contains the list of approved viticultural areas. Definition Section 4.25(e)(1)(i) of the TTB regulations (27 CFR 4.25(e)(1)(i)) defines a viticultural area for American wine as a delimited grape-growing region distinguishable by geographic features, the boundaries of which have been recognized and defined in part 9 of the regulations. These designations allow vintners and consumers to attribute a given quality, reputation, or other characteristic of a wine made from grapes grown in an area to its geographic origin. The establishment of viticultural areas allows vintners to describe more accurately the origin of their wines to consumers and helps consumers to identify wines they may purchase. Establishment of a viticultural area is neither an approval nor an endorsement by TTB of the wine produced in that area. Los Carneros Viticultural Area Background The Bureau of Alcohol, Tobacco and Firearms (ATF), the predecessor agency of TTB, established the Los Carneros viticultural area effective on September 19, 1983, in T.D. ATF-142, published in the **Federal Register** on August 18, 1983 (48 FR 37365). The establishment of the Los Carneros viticultural area is codified, and its boundary is described, in the TTB regulations at 27 CFR 9.32. The “Evidence of Name” discussion in the preamble of T.D. ATF-142 states that the names “Los Carneros” and “Carneros” are generally used interchangeably. The 1983 final rule document explains that ATF approved many labels over a period of more than ten years that simply used the name “Carneros.” Also, ATF noted that the Spanish word “los” translates to “the” in English. ATF therefore, in this specific case, determined that “Carneros” and “Los Carneros” are not different names, but rather are equivalent forms of the same name. Consequently, ATF concluded that either “Los Carneros” or “Carneros” should be allowed for use on labels and in advertising to refer to the Los Carneros viticultural area. Currently, paragraph
(a)of § 9.32, states, “The name of the viticultural area described in this section is ‘Los Carneros.’ ” To clarify that the “Los Carneros” and “Carneros” names both have the same and equal viticultural significance in the context of this viticultural area, TTB is amending paragraph
(a)of 27 CFR 9.32. This technical amendment clarifies the fact that either “Los Carneros” or “Carneros” standing alone may be used as the name of the viticultural area, and that both terms are viticulturally significant for the purposes of part 4 of the TTB regulations. Impact on Current Wine Labels This technical amendment to the Los Carneros viticultural area does not affect currently approved wine labels that use the “Los Carneros” or “Carneros” names. Part 4 of the TTB regulations prohibits any label reference on a wine that indicates or implies an origin other than the wine's true place of origin. For a wine to be eligible to use as an appellation of origin a viticultural area name or other term specified as being viticulturally significant in part 9 of the TTB regulations, at least 85 percent of the wine must be derived from grapes grown within the area represented by that name or other term, and the wine must meet the other conditions listed in 27 CFR 4.25(e)(3). Different rules apply if a wine has a brand name containing a viticultural area name or other viticulturally significant term that was used as a brand name on a label approved before July 7, 1986. See 27 CFR 4.39(i)(2) for details. Regulatory Flexibility Act Because no notice of proposed rulemaking is required, the provisions of the Regulatory Flexibility Act (5 U.S.C. chapter 6) do not apply. Inapplicability of Prior Notice and Comment and Delayed Effective Date Procedures Because this regulatory action merely codifies an existing policy adopted in 1983 as part of a prior rulemaking action that included a public notice and comment period, TTB has determined that no notice of proposed rulemaking and public comment period are required under 5 U.S.C. 553(b). For the same reason, this final rule is not subject to the delayed effective date requirement of 5 U.S.C. 553(d). Executive Order 12866 This final rule is not a significant regulatory action as defined by Executive Order 12866, 58 FR 51735. Therefore, it requires no regulatory assessment. Drafting Information N. A. Sutton of the Regulations and Rulings Division drafted this notice. List of Subjects in 27 CFR Part 9 Wine. The Regulatory Amendment For the reasons discussed in the preamble, we amend 27 CFR, chapter 1, part 9, as follows: PART 9—AMERICAN VITICULTURAL AREAS 1. The authority citation for part 9 continues to read as follows: Authority: 27 U.S.C. 205. Subpart C—Approved American Viticultural Areas 2. Section § 9.32 is amended by revising paragraph
(a)to read as follows: § 9.32 Los Carneros.
(a)*Name* . The name of the viticultural area described in this section is “Los Carneros”. “Carneros” may also be used as the name of the viticultural area described in this section. For purposes of part 4 of this chapter, “Los Carneros” and “Carneros” are terms of viticultural significance. Signed: October 2, 2006. John J. Manfreda, Administrator. Approved: October 13, 2006. Timothy E. Skud, Deputy Assistant Secretary (Tax, Trade, and Tariff Policy). [FR Doc. E6-19231 Filed 11-14-06; 8:45 am] BILLING CODE 4810-31-P PENSION BENEFIT GUARANTY CORPORATION 29 CFR Parts 4022 and 4044 Benefits Payable in Terminated Single-Employer Plans; Allocation of Assets in Single-Employer Plans; Interest Assumptions for Valuing and Paying Benefits AGENCY: Pension Benefit Guaranty Corporation. ACTION: Final rule. SUMMARY: The Pension Benefit Guaranty Corporation's regulations on Benefits Payable in Terminated Single-Employer Plans and Allocation of Assets in Single-Employer Plans prescribe interest assumptions for valuing and paying benefits under terminating single-employer plans. This final rule amends the regulations to adopt interest assumptions for plans with valuation dates in December 2006. Interest assumptions are also published on the PBGC's Web site ( *http://www.pbgc.gov).* DATES: Effective December 1, 2006. FOR FURTHER INFORMATION CONTACT: Catherine B. Klion, Manager, Regulatory and Policy Division, Legislative and Regulatory Department, Pension Benefit Guaranty Corporation, 1200 K Street, NW., Washington, DC 20005, 202-326-4024. (TTY/TDD users may call the Federal relay service toll-free at 1-800-877-8339 and ask to be connected to 202-326-4024.) SUPPLEMENTARY INFORMATION: The PBGC's regulations prescribe actuarial assumptions—including interest assumptions—for valuing and paying plan benefits of terminating single-employer plans covered by title IV of the Employee Retirement Income Security Act of 1974. The interest assumptions are intended to reflect current conditions in the financial and annuity markets. Three sets of interest assumptions are prescribed:
(1)A set for the valuation of benefits for allocation purposes under section 4044 (found in Appendix B to Part 4044),
(2)a set for the PBGC to use to determine whether a benefit is payable as a lump sum and to determine lump-sum amounts to be paid by the PBGC (found in Appendix B to Part 4022), and
(3)a set for private-sector pension practitioners to refer to if they wish to use lump-sum interest rates determined using the PBGC's historical methodology (found in Appendix C to Part 4022). This amendment
(1)adds to Appendix B to Part 4044 the interest assumptions for valuing benefits for allocation purposes in plans with valuation dates during December 2006,
(2)adds to Appendix B to Part 4022 the interest assumptions for the PBGC to use for its own lump-sum payments in plans with valuation dates during December 2006, and
(3)adds to Appendix C to Part 4022 the interest assumptions for private-sector pension practitioners to refer to if they wish to use lump-sum interest rates determined using the PBGC's historical methodology for valuation dates during December 2006. For valuation of benefits for allocation purposes, the interest assumptions that the PBGC will use (set forth in Appendix B to part 4044) will be 5.80 percent for the first 20 years following the valuation date and 4.75 percent thereafter. These interest assumptions represent an increase (from those in effect for November 2006) of 0.10 percent for the first 20 years following the valuation date and are otherwise unchanged. These interest assumptions reflect the PBGC's recently updated mortality assumptions, which are effective for terminations on or after January 1, 2006. See the PBGC's final rule published December 2, 2005 (70 FR 72205), which is available at *http://www.pbgc.gov/docs/05-23554.pdf.* Because the updated mortality assumptions reflect improvements in mortality, these interest assumptions are higher than they would have been using the old mortality assumptions. The interest assumptions that the PBGC will use for its own lump-sum payments (set forth in Appendix B to part 4022) will be 3.00 percent for the period during which a benefit is in pay status and 4.00 percent during any years preceding the benefit's placement in pay status. These interest assumptions represent an increase (from those in effect for November 2006) of 0.25 percent in the immediate annuity rate and are otherwise unchanged. For private-sector payments, the interest assumptions (set forth in Appendix C to part 4022) will be the same as those used by the PBGC for determining and paying lump sums (set forth in Appendix B to part 4022). The PBGC has determined that notice and public comment on this amendment are impracticable and contrary to the public interest. This finding is based on the need to determine and issue new interest assumptions promptly so that the assumptions can reflect current market conditions as accurately as possible. Because of the need to provide immediate guidance for the valuation and payment of benefits in plans with valuation dates during December 2006, the PBGC finds that good cause exists for making the assumptions set forth in this amendment effective less than 30 days after publication. The PBGC has determined that this action is not a “significant regulatory action” under the criteria set forth in Executive Order 12866. Because no general notice of proposed rulemaking is required for this amendment, the Regulatory Flexibility Act of 1980 does not apply. See 5 U.S.C. 601(2). List of Subjects 29 CFR Part 4022 Employee benefit plans, Pension insurance, Pensions, Reporting and recordkeeping requirements. 29 CFR Part 4044 Employee benefit plans, Pension insurance, Pensions. In consideration of the foregoing, 29 CFR parts 4022 and 4044 are amended as follows: PART 4022—BENEFITS PAYABLE IN TERMINATED SINGLE-EMPLOYER PLANS 1. The authority citation for part 4022 continues to read as follows: Authority: 29 U.S.C. 1302, 1322, 1322b, 1341(c)(3)(D), and 1344. 2. In appendix B to part 4022, Rate Set 158, as set forth below, is added to the table. Appendix B to Part 4022—Lump Sum Interest Rates for PBGC Payments Rate set For plans with a valuation date On or after Before Immediate annuity rate (percent) Deferred annuities (percent) i 1 i 2 i 3 n 1 n 2 * * * * * * * 158 12-1-06 1-1-07 3.00 4.00 4.00 4.00 7 8 3. In appendix C to part 4022, Rate Set 158, as set forth below, is added to the table. Appendix C to Part 4022—Lump Sum Interest Rates for Private-Sector Payments Rate set For plans with a valuation date On or after Before Immediate annuity rate (percent) Deferred annuities (percent) i 1 i 2 i 3 n 1 n 2 * * * * * * * 158 12-1-06 1-1-07 3.00 4.00 4.00 4.00 7 8 PART 4044—ALLOCATION OF ASSETS IN SINGLE-EMPLOYER PLANS 4. The authority citation for part 4044 continues to read as follows: Authority: 29 U.S.C. 1301(a), 1302(b)(3), 1341, 1344, 1362. 5. In appendix B to part 4044, a new entry for December 2006, as set forth below, is added to the table. Appendix B to Part 4044—Interest Rates Used to Value Benefits For valuation dates occurring in the month— The values of i <sup>t</sup> are: i t for t = i t for t = i t for t = * * * * * * * December 2006 .0580 1-20 .0475 >20 N/A N/A Issued in Washington, DC, on this 8th day of November 2006. Vincent K. Snowbarger, Interim Director, Pension Benefit Guaranty Corporation. [FR Doc. E6-19257 Filed 11-14-06; 8:45 am] BILLING CODE 7709-01-P DEPARTMENT OF DEFENSE Office of the Secretary 32 CFR Part 235 [DOD-2005-OS-0149] RIN 0790-AH86 Sale or Rental of Sexually Explicit Material on DoD Property (DoD Instruction 4105.70) AGENCY: Department of Defense. ACTION: Final rule. SUMMARY: This rule prohibits the sale or rental of sexually explicit material on property under DoD jurisdiction. It establishes responsibilities for monitoring compliance, establishes a review board to determine whether a material offered for sale or rental is sexually explicit as consistent with the definition in 10 U.S.C. 2489a, and delineates review board procedures. This updated rule includes administrative changes and one new policy allowing materials which have been determined by the Board to be sexually explicit to be submitted for reconsideration every 5 years. DATES: *Effective Date:* December 15, 2006. FOR FURTHER INFORMATION CONTACT: Commander F. Stich, 703-602-4601. SUPPLEMENTARY INFORMATION: On December 19, 2005 (70 FR 75091) the Department of Defense published the proposed rule for public comment. Twenty-eight comments were posted, 14 of which merited a response: 1. Comment posted 1/12/06: *General Comment:* I don't think the DoD should be selling or renting sexually explicit material other than artistic publications such as Playboy. *DoD response:* The Part, which implements 10 U.S.C. 2489a, prohibits the sale or rental of sexually explicit material on property under DoD jurisdiction, as well as the sale or rental of sexually explicit material by DoD military and civilian personnel acting in an official capacity. 2. Comment posted 2/2/06: *General Comment:* In addition to appointing senior representative to the Resale Activities Board of Review, there should also be a consumer group composed of enlisted members and officers to help analyze material for decency. *DoD response:* Forming the suggested consumer group is unnecessary. The Resale Activities Board of Review includes civilian representatives from the Army, Navy, and Air Force who are capable of identifying sexually explicit material. 3. Comment posted 2/6/06: *General Comment:* I think that the proposed rule to prohibit sexually explicit material being sold on the property of the Department of Defense and by those employed by the Department of Defense is a bit too restricting. I can understand prohibiting it on government property, however, prohibiting those employed by the Department of Defense has gone too far. It is not the government's job to regulate what people do with their private lives. It's like telling people that they can't smoke if they want to work for that person. *DoD response:* The Part does not prohibit DoD personnel from possessing sexually explicit material. It prohibits the sale or rental of sexually explicit material on property under DoD jurisdiction, and it prohibits the sale or rental of sexually explicit material by DoD military and civilian personnel when acting in an official capacity. 4. Comment posted 2/6/06: *General Comment:* It seems that if magazines and videos containing sexually explicit materials are to be restricted but books containing sexually explicit materials are not, then a double standard is being created. In essence sexually explicit materials are acceptable in one format but not in another. Either all sexually explicit materials should be allowed or it all should be banned. *DoD response:* The Part is consistent with 10 U.S.C. 2489a, which does not include books in the definition of “sexually explicit material.” 5. Comment posted 2/6/06: *General Comment:* I think the military should be able to possess whatever types of media they choose, as long as it does not violate the law. *DoD response:* The Part does not regulate possession of sexually explicit material by DoD military and civilian employees. It prohibits the sale or rental of sexually explicit material on property under the DoD jurisdiction, and it prohibits the sale or rental of sexually explicit material by DoD military and civilian employees acting in an official capacity. 6. Comment posted 2/6/06: *General Comment:* I don't see how the barring of sale or rental of pornographic materials is going to help anything. If the issue is pornography on property owned by the Dept. of Defense, then possession of it should be banned entirely. *DoD response:* The Part does not regulate the possession of sexually explicit material by DoD military and civilian employees. It prohibits the sale or rental of sexually explicit material on property under DoD jurisdiction, and by DoD civilian and military employees when acting in an official capacity. 7. Comment posted 2/6/06: *General Comment:* I believe that this proposed rule is too restrictive based on the fact that all DoD property is included. While explicit materials should be restricted from certain areas under DoD's property, such as work areas, other property, such as personal living areas, should not be included. *DoD response:* The Part does not prohibit the possession of sexually explicit material by DoD military and civilian employees. It prohibits the sale or rental of sexually explicit material on property under DoD jurisdiction, and by DoD military and civilian employees when acting in an official capacity. 8. Comment posted 2/6/06: *General Comment:* I think this regulation needs some clarification. I would also like to know why the government has banned trade of sexually explicit material in the armed forces. *DoD response:* The Part implements 10 U.S.C. 2489a, which prohibits the sale or rental of sexually explicit material on property under DoD jurisdiction, and by DoD military and civilian employees when acting in an official capacity. 9. Comment posted 2/6/06: *General Comment:* The Department of Defense should not restrict the rights of military personnel more so than the general public. If military people want to look at pornographic material that is available in the open market, they should be allowed to do so. *DoD response:* The Part does not prohibit the possession of sexually explicit material by DoD civilian or military employees. It prohibits the sale or rental of sexually explicit material on property under DoD jurisdiction, and by DoD military and civilian employees when acting in an official capacity. 10. Comment posted 2/6/06: *General Comment:* What is rationale behind not allowing members of the armed forces to view these materials? *DoD response:* The Part does not prohibit the possession or viewing of sexually explicit material by DoD employees. It prohibits the sale or rental of sexually explicit material by the Department of Defense on property under its jurisdiction and by DoD military and civilian employees when acting in an official capacity. 11. Comment posted 2/6/06: *General Comment:* Although I think this regulation is a necessary one, I am curious as to why the definitional sections are just now being added years after the actual regulation was enacted. *DoD response:* The definitions section is not new. The previous Part contained definitions, as does the reissued Part. 12. Comment posted 2/6/06: *General Comment:* I don't want regulations on what I look at. *DoD response:* The Part does not prohibit the possession or viewing of sexually explicit material by DoD civilian and military personnel. It prohibits the sale or rental of sexually explicit material on property under its jurisdiction and by DoD military and civilian employees when acting in an official capacity. 13. Comment posted 2/6/06: *General Comment:* This seems to border on the side of the restriction of the freedom of press despite the fact that it is not regulating the actual production of the materials. Perhaps more along the lines of censorship? *DoD response:* The Part does not censor free speech, because it does not prohibit the possession of sexually explicit material by DoD military and civilian personnel. It prohibits the sale or rental of sexually explicit material by the Department of Defense on property under its jurisdiction, and by DoD civilian and military employees when acting in an official capacity. 14. Comment posted 2/23/06: I write because of my concern with proposed regulation 32 CFR 235. My primary concern is that the regulation violates, if not the First Amendment itself, at least the spirit of it. The first problem is that this regulation does discriminate based on viewpoint. It *only* applies to materials that contain nudity designed to elicit a sexual response, *i.e.* that represent nudity or sex as being pleasurable. That is a viewpoint. The second problem is that there is no reference to any serious artistic, literary, or political value that sexually explicit materials may have. Even if the “dominant theme” of such materials is the depiction of nudity designed to elicit a sexual response, those materials might still have eminent worth because of other important, but “lesser” themes. Such materials could easily also very intentionally represent nudity in a titillating way to explore the very reasons it is titillating. The reality is that if materials have nudity, no matter how tasteful or artistic, it will probably be found to be sexually explicit. The second problem is that “dominant theme” is unworkably ambiguous. One could easily apply this standard to a movie that has only ten minutes of nudity, because the “power” of this segment far outweighs the rest the film. The final problem is that this regulation is grossly paternalistic. The Department of Defense should ban the sale of sexually explicit material that is actually obscene. But members of the armed forces are adults, and should be treated as such. Even if these regulations do not reach serious, worthwhile but sexually explicit materials, they still reach some rather innocuous forms of pornography. I simply do not see the value in the government censoring such material from the men and women of the Armed Forces. If they are mature enough to serve our country, they are mature enough to decide whether to view these sorts of sexually explicit materials. Accordingly, I would urge that the regulations be revised and restricted to exclude materials with redeeming social value and to reach only “hard-core” pornography. *DoD response:* The Part does not censor free speech, because it does not prohibit the possession of sexually explicit material by DoD civilian and military employees. It prohibits the sale or rental of sexually explicit material on property under DoD jurisdiction, and by DoD military and civilian employees when acting in an official capacity. In *PMG International Division, L.L.C.* v. *Rumsfeld* , 303 F.3d 1163 (9th Cir. 2002), the U.S. Court of Appeals affirmed the decision of the U.S. District Court for the Northern District of California, and held that the Military Honor and Decency Act (the Act) , 10 U.S.C. 2489a, merely regulated government speech, and that plaintiffs had no right under the First Amendment to compel the government to offer sexually explicit materials at military exchanges. The Appellate court also concluded that military exchanges were nonpublic fora and that the Act was a viewpoint-neutral, reasonable regulation of speech. See also, *General Media Communication, Inc., el al* . v. *Perry* , 1997 U.S. App. LEXIS 40571. Certifications Executive Order 12866 This regulatory action is not a significant regulatory action, as defined by Executive Order 12866. Regulatory Flexibility Act of 1980 (5 U.S.C. 605(b)) This regulatory action will not have a significant adverse impact on a substantial number of small entities. Unfunded Mandates Act of 1995 (Sec. 202, Pub. L. 104-4) This regulatory action does not contain a Federal mandate that will result in the expenditure by State, local, and tribal governments, in aggregate, or by the private sector of $100 million or more in any one year. Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35) This regulatory action will not impose any additional reporting or recordkeeping requirements under the Paperwork Reduction Act. Federalism (Executive Order 13132) This regulatory action does not have Federalism implications, as set forth in Executive Order 13132. 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. Public Law 96-354, “Regulatory Flexibility Act” (5 U.S.C. Chapter 6) This rule is not subject to the Regulatory Flexibility Act because it would not, if promulgated, have a significant economic impact on a substantial number of small entities as defined by 5 U.S.C. 601. The production of sexually explicit material is not the typical product of small business concerns as defined under section 3 of the Small Business Act. Furthermore, military exchanges represent only a small segment of the retail sector since access is restricted to military personnel and other authorized patrons. Section 202, Public Law 104-4, “Unfunded Mandates Reform Act” This rule 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 such rulemaking will not significantly or uniquely affect small governments. List of Subjects in 32 CFR Part 235 Business and industry, Concessions, Government contracts, Military personnel. Accordingly, title 32 of the Code of Federal Regulations is amended by revising part 235 to read as follows: PART 235—SALE OR RENTAL OF SEXUALLY EXPLICIT MATERIAL ON DOD PROPERTY Sec. 235.1 Purpose. 235.2 Applicability and scope. 235.3 Definitions. 235.4 Policy. 235.5 Responsibilities. 235.6 Procedures. 235.7 Information requirements. Authority: 10 U.S.C. 2489a. § 235.1 Purpose. This part implements 10 U.S.C. 2489a, consistent with DoD Instruction 1330.09, 1 by providing guidance about restrictions on the sale or rental of sexually explicit materials on property under the jurisdiction of the Department of Defense or by members of the Armed Forces or DoD civilian officers or employees, acting in their official capacities. 1 Copies may be obtained at *http://www.dtic.mil/whs/directives/.* § 235.2 Applicability and scope. This part:
(a)Applies to the Office of the Secretary of Defense, the Military Departments, the Chairman of the Joint Chiefs of Staff, the Combatant Commands, the Office of the Inspector General of the Department of Defense, the Defense Agencies, the DoD Field Activities, and all other organizational entities within the Department of Defense (hereafter referred to as the “DoD Components”).
(b)Shall not confer rights on any person. § 235.3 Definitions. For the purpose of this part, the following definitions apply: *Dominant theme* . A theme of any material that is superior in power, influence, and importance to all other themes in the material combined. *Lascivious* . Lewd and intended or designed to elicit a sexual response. *Material* . An audio recording, a film or video recording, or a periodical with visual depictions, produced in any medium. *Property under the jurisdiction of the Department of Defense* . Commissaries, facilities operated by the Army and Air Force Exchange Service, the Navy Exchange Service Command, the Navy Resale and Services Support Office, Marine Corps Exchanges, and ship stores. *Sexually explicit material* . Material, the dominant theme of which is the depiction or description of nudity, including sexual or excretory activities or organs, in a lascivious way. § 235.4 Policy. It is DoD policy that:
(a)No sexually explicit material may be offered for sale or rental on property under the DoD jurisdiction, and no member of the Armed Forces or DoD civilian officer or employee, acting in his or her official capacity, shall offer for sale or rental any sexually explicit material.
(b)Material shall not be deemed sexually explicit because of any message or point of view expressed therein. § 235.5 Responsibilities.
(a)The Principal Deputy Under Secretary of Defense for Personnel and Readiness (PDUSD((P&R)), under the Under Secretary of Defense for Personnel and Readiness, shall:
(1)Monitor and ensure compliance with this part.
(2)Establish a Resale Activities Board of Review (the “Board”) and approve senior representatives from the Army and Air Force Exchange Service, the Navy Exchange Service Command, and the Marine Corps Exchange Service; and approve a senior representative from each of the Military Departments, if designated by the Military Department concerned, to serve as board members on the Resale Activities Board.
(3)Appoint a Chair of the Board.
(4)Monitor the activities of the Board and ensure that the Board discharges its responsibilities as set forth in § 235.6.
(b)The Secretaries of the Military Departments shall ensure that their respective component DoD resale activities comply with this Part and may designate a senior representative to serve on the Board.
(c)The Secretary of the Army and the Secretary of the Air Force shall each appoint one senior representative from the Army and Air Force Exchange Service to serve on the Board.
(d)The Secretary of the Navy shall appoint a senior representative from the Navy Exchange Service Command and a senior representative from the Marine Corps Exchange Service to serve on the Board. § 235.6 Procedures.
(a)The Board shall periodically review material offered or to be offered for sale or rental on property under DoD jurisdiction and determine whether any such material is sexually explicit in accordance with this part.
(b)If the Board determines that any material offered for sale or rental on property under DoD jurisdiction is sexually explicit, such material shall be withdrawn from all retail outlets where it is sold or rented and returned to distributors or suppliers, and shall not be purchased absent further action by the Board.
(c)The Board shall convene as necessary to determine whether any material offered or to be offered for sale or rental on property under DoD jurisdiction is sexually explicit. The Board members shall, to the extent practicable, maintain and update relevant information about material offered or to be offered for sale or rental on property under DoD jurisdiction.
(d)If any purchasing agent or manager of a retail outlet has reason to believe that material offered or to be offered for sale or rental on property under DoD jurisdiction may be sexually explicit as defined herein, and such material is not addressed by the Board's guidance issued pursuant to paragraph
(e)of this section, he or she shall request a determination from the Board about such material prior to purchase or as soon as possible.
(e)At the conclusion of each review and, as necessary, the Board shall issue guidance to purchasing agents and managers of retail outlets about the purchase, withdrawal, and return of sexually explicit material. The Board may also provide guidance to purchasing agents and managers of retail outlets about material that it has determined is not sexually explicit. Purchasing agents and managers of retail outlets shall continue to follow their usual purchasing and stocking practices unless instructed otherwise by the Board.
(f)Material which has been determined by the Board to be sexually explicit may be submitted for reconsideration every 5 years. If substantive changes in the publication standards occur earlier, the purchasing agent or manager of a retail outlet under DoD jurisdiction may request a review. § 235.7 Information requirements. The Chair of the Board shall submit to the PDUSD(P&R) an annual report documenting the activities, decisions, and membership of the Board. Negative reports are required. The annual report shall be due on October 1st of each year and is not subject to the licensing internal information requirements of DoD 8910.1-M. 2 2 Copies may be obtained at *http://www.dtic.mil/whs/directives/* . Dated: November 8, 2006. L.M. Bynum, Alternate OSD Federal Register Liaison Officer, DoD. [FR Doc. E6-19268 Filed 11-14-06; 8:45 am] BILLING CODE 5001-06-P FEDERAL COMMUNICATIONS COMMISSION 47 CFR Parts 1, 2, and 97 [WT Docket No. 04-140; FCC 06-149] Amateur Service Rules AGENCY: Federal Communications Commission. ACTION: Final rule. SUMMARY: In this document, the Commission amends its Amateur Radio Service rules to revise the frequency segments of the 80 meter and 40 meter amateur service High Frequency
(HF)bands on which amateur stations are authorized to transmit voice communications; authorize amateur stations to transmit certain emission types on additional amateur service bands or frequency segments; revise the procedures for the amateur service vanity call sign system; eliminate unnecessary restrictions imposed on manufacturers of certain types of equipment that may be used at amateur stations; and make other conforming amendments to the amateur service rules. DATES: Effective December 15, 2006. FOR FURTHER INFORMATION CONTACT: William T. Cross, Wireless Telecommunications Bureau at
(202)418-0620, or TTY
(202)418-7233. SUPPLEMENTARY INFORMATION: This is a summary of the Commission's *Report and Order,* in WT Docket No. 04-140; FCC 06-149, adopted October 4, 2006, and released October 10, 2006. The complete text of this document is available for inspection and copying during normal business hours in the FCC's Reference Information Center, 445 12th Street, SW., Room CY-A257, Washington, DC. Alternative formats (Braille, large print, electronic files, audio format) are available for people with disabilities by sending an e-mail to *FCC504@fcc.gov* or, calling the Consumer and Government Affairs Bureau at
(202)418-0530 (voice),
(202)418-0432 (TTY). The Order also may be downloaded from the Commission's Web site at *http://www.fcc.gov/* . 1. In this *Report and Order* the Commission adopts changes to its part 97 rules to conform the amateur service rules to the international Radio Regulations. The overall effect of this action is to further the public interest by allowing amateur service licensees to use the spectrum more efficiently, and by allowing amateur service stations to operate with fewer restrictions. The changes adopted in this *Report and Order* were proposed in the *Notice of Proposed Rulemaking* at 69 FR 51028, August 17, 2004. Over 150 comments on the proposed rule changes were received and changes to the proposed rules based on these comments are included in this *Report and Order* . 2. Specifically, the Commission
(1)revises the operating privileges of amateur radio operators to allow more spectrum in four currently-authorized amateur service HF bands to be used for voice communications;
(2)permits auxiliary stations to transmit on additional amateur service bands;
(3)permits amateur stations to transmit spread spectrum communications on the 1.25 meter
(m)band;
(4)permits amateur stations to retransmit communications from the International Space Station;
(5)permits amateur service licensees to designate the amateur radio club to receive their call sign in memoriam;
(6)prohibits an applicant from filing more than one application for a specific vanity call sign;
(7)eliminates certain restrictions on equipment manufacturers that are no longer necessary;
(8)permits amateur radio stations operating in Alaska and surrounding waters more flexibility in providing emergency communications; and
(9)removes certain restrictions in the amateur service license examination system that are no longer necessary. The effect of these revisions are to provide licensees with greater flexibility in the utilization of amateur service frequencies, promote efficient use of the Amateur Radio Service spectrum by authorizing communications that include both analog and digital emission types to be transmitted on currently-authorized amateur service spectrum, and eliminate unnecessary requirements that may limit the flexibility of the amateur service license examination system. I. Procedural Matters A. Paperwork Reduction Act Analysis 3. This document does not contain any new or modified information collection requirements subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. Therefore, it does not contain any new or modified “information collection burden for small business concerns with fewer than 25 employees,” pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, *see* 44 U.S.C. 3506(c)(4). B. Report to Congress 4. The Commission will send a copy of the *Report and Order* , including this Final Regulatory Flexibility Certification, in a report to be sent to Congress and the Congressional Budget Office pursuant to the Congressional Review Act. In addition, the Commission will send a copy of the *Report and Order* , including the Final Regulatory Flexibility Certification, to the Chief Counsel for Advocacy of the SBA and the Final Regulatory Flexibility Certification will also be published in the **Federal Register** . C. Final Regulatory Flexibility Certification 5. In this *Report and Order* , we amend the rules that specify how an individual who has qualified for an amateur service operator license can use an amateur radio station consistent with the basis and furthering the purpose of the amateur service. The amended rules apply exclusively to individuals who are licensees in the amateur radio service. Given the definition of a “small entity,” none of these individuals are small entities as the term is used in the RFA. In addition, the amended rules reflected in this *Report and Order* potentially could affect manufactures of amateur radio equipment. Based on requests that the Commission has received for certification of amplifiers under part 97 of the Rules, we estimate that there are between five and ten manufactures of amateur radio amplifiers and that by the relevant SBA standard none of these manufactures are small entities. We also note that the rule changes will apply to amateur radio licensees and control operators of amateur radio stations and will not have a necessary impact on manufactures of amplifiers that may be used at amateur radio stations. Therefore, we certify that the rules reflected in this *Report and Order* will not have a significant economic impact on a substantial number of small entities. D. Ordering Clauses 6. Pursuant to sections 4(i), 303(f), 303(r), and 332 of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 303(f), 303(r) and 332, that parts 1, 2, and 97 of the Commission's Rules *are amended* as specified below. List of Subjects 47 CFR Part 1 Administrative practice and procedure. 47 CFR Part 2 Communications equipment, Telecommunications. 47 CFR Part 97 Radio. Federal Communications Commission. Marlene H. Dortch, Secretary. Rule Changes For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR parts 1, 2, and 97 as follows: PART 1—APPLICATION REQUIREMENTS AND PROCEDURES 1. The authority citation for part 1 continues to read as follows: Authority: 47 U.S.C. 151, 154(i), 154(j), 155, 225, 303(r), 309 and 325(e). 2. Amend § 1.934 by adding paragraph (d)(5) to read as follows: § 1.934 Defective applications and dismissal.
(d)* * *
(5)It requests a vanity call sign and the applicant has pending another vanity call sign application with the same receipt date. PART 2—FREQUENCY ALLOCATIONS AND RADIO TREATY MATTERS; GENERAL RULES AND REGULATIONS 3. The authority citation for part 2 continues to read as follows: Authority: 47 U.S.C. 154, 302a, 303, and 336, unless otherwise noted. 4. Amend § 2.106 by revising United States footnotes US212 and US267 to read as follows: § 2.106 Table of Frequency Allocation. US212 In, or within 92.6 km (50 nautical miles) of, the State of Alaska, the carrier frequency 5167.5 kHz (assigned frequency 5168.9 kHz) is designated for emergency communications. This frequency may also be used in the Alaska-Private Fixed Service for calling and listening, but only for establishing communications before switching to another frequency. The maximum power is limited to 150 watts peak envelope power (PEP). US267 In the band 902-928 MHz, amateur radio stations shall transmit only on the frequency segments 902.0-902.4, 902.6-904.3, 904.7-925.3, 925.7-927.3, and 927.7-928.0 MHz within the States of Colorado and Wyoming, bounded by the area of latitude 39°N. to 42°N. and longitude 103°W. to 108°W. 5. Amend § 2.815 by revising paragraph (b), and removing paragraphs (c), (d), and
(e)to read as follows: § 2.815 External radio frequency power amplifiers.
(b)No person shall manufacture, sell or lease, offer for sale or lease (including advertising for sale or lease) or import, ship or distribute for the purpose of selling or leasing or offering for sale or lease, any external radio frequency power amplifier capable of operation on any frequency or frequencies below 144 MHz unless the amplifier has received a grant of certification in accordance with subpart J of this part and other relevant parts of this chapter. These amplifiers shall comply with the following:
(1)The external radio frequency power amplifier shall not be capable of amplification in the frequency band 26-28 MHz.
(2)The amplifier shall not be capable of easy modification to permit its use as an amplifier in the frequency band 26-28 MHz.
(3)No more than 10 external radio frequency power amplifiers may be constructed for evaluation purposes in preparation for the submission of an application for a grant of certification.
(4)If the external radio frequency power amplifier is intended for operation in the Amateur Radio Service under part 97 of this chapter, the requirements of §§ 97.315 and 97.317 of this chapter shall be met. 6. Amend § 2.1060 by removing paragraph (c), redesignating paragraph
(d)as paragraph
(c)and revising newly designated paragraph
(c)to read as follows: § 2.1060 Equipment for use in the amateur radio service.
(c)Certification of external radio frequency power amplifiers may be denied when denial would prevent the use of these amplifiers in services other than the Amateur Radio Service. PART 97—AMATEUR RADIO SERVICE 7. The authority citation for part 97 continues to read as follows: Authority: 48 Stat. 1066, 1082, as amended; 47 U.S.C. 154, 303. Interpret or apply 48 Stat. 1064-1068, 1081-1105, as amended; 47 U.S.C. 151-155, 301-609, unless otherwise noted. 8. Amend § 97.3 by removing and reserving paragraph (a)(19) and revising paragraph (c)(2) to read as follows: § 97.3 Definitions.
(c)* * *
(2)*Data* . Telemetry, telecommand and computer communications emissions having designators with A, C, D, F, G, H, J or R as the first symbol; 1 as the second symbol; D as the third symbol, and emissions A1C, F1C, F2C, J2C, J3C, and J2D having an occupied bandwidth of 500 Hz or less when transmitted on an amateur service frequency below 30 MHz. Only a digital code of a type specifically authorized in this part may be transmitted. 9. Amend § 97.19 by revising paragraphs (c)(3) and (d)(1) to read as follows: § 97.19 Application for a vanity call sign.
(c)* * *
(3)Except for an applicant who is the spouse, child, grandchild, stepchild, parent, grandparent, step-parent, brother, sister, stepbrother, stepsister, aunt, uncle, niece, nephew, or in-law, and except for an applicant who is a club station license trustee acting with a written statement of consent signed by either the licensee *ante mortem* but who is now deceased or by at least one relative, as listed above, of the person now deceased, the call sign shown on the license of the person now deceased is not available to the vanity call sign system for 2 years following the person's death, or for 2 years following the expiration of the license grant, whichever is sooner.
(d)* * *
(1)The applicant must request that the call sign shown on the license grant be vacated and provide a list of up to 25 call signs in order of preference. In the event that the Commission receives more than one application requesting a vanity call sign from an applicant on the same receipt day, the Commission will process only the first such application entered into the Universal Licensing System. Subsequent vanity call sign applications from that applicant with the same receipt date will not be accepted. 10. Amend § 97.103 by revising paragraph
(c)to read as follows: § 97.103 Station licensee responsibilities.
(c)The station licensee must make the station and the station records available for inspection upon request by an FCC representative. When deemed necessary by a District Director to assure compliance with the FCC Rules, the station licensee must maintain a record of station operations containing such items of information as the District Director may require in accord with § 0.314(x) of the FCC Rules. 11. Amend § 97.111 by redesignating paragraphs (a)(2) through (a)(4) as (a)(3) through (a)(5) and adding a new paragraph (a)(2) to read as follows: § 97.111 Authorized transmissions.
(a)* * *
(2)Transmissions necessary to meet essential communication needs and to facilitate relief actions. 12. Amend § 97.113 by revising paragraph
(e)to read as follows: § 97.113 Prohibited transmissions.
(e)No station shall retransmit programs or signals emanating from any type of radio station other than an amateur station, except propagation and weather forecast information intended for use by the general public and originated from United States Government stations, and communications, including incidental music, originating on United States Government frequencies between a manned spacecraft and its associated Earth stations. Prior approval for manned spacecraft communications retransmissions must be obtained from the National Aeronautics and Space Administration. Such retransmissions must be for the exclusive use of amateur radio operators. Propagation, weather forecasts, and manned spacecraft communications retransmissions may not be conducted on a regular basis, but only occasionally, as an incident of normal amateur radio communications. 13. Amend § 97.115 by revising paragraph (b)(2), redesignating paragraph
(c)as paragraph (d), and adding a new paragraph
(c)to read as follows: § 97.115 Third party communications.
(b)* * *
(2)The third party is not a prior amateur service licensee whose license was revoked or not renewed after hearing and re-licensing has not taken place; suspended for less than the balance of the license term and the suspension is still in effect; suspended for the balance of the license term and re-licensing has not taken place; or surrendered for cancellation following notice of revocation, suspension or monetary forfeiture proceedings. The third party may not be the subject of a cease and desist order which relates to amateur service operation and which is still in effect.
(c)No station may transmit third party communications while being automatically controlled except a station transmitting a RTTY or data emission. 14. Amend § 97.201 by revising paragraph
(b)to read as follows: § 97.201 Auxiliary station.
(b)An auxiliary station may transmit only on the 2 m and shorter wavelength bands, except the 144.0-144.5 MHz, 145.8-146.0 MHz, 219-220 MHz, 222.00-222.15 MHz, 431-433 MHz, and 435-438 MHz segments. 15. Amend § 97.203 by revising paragraph
(f)to read as follows: § 97.203 Beacon station.
(f)A beacon must cease transmissions upon notification by a District Director that the station is operating improperly or causing undue interference to other operations. The beacon may not resume transmitting without prior approval of the District Director. 16. Amend § 97.207 by revising paragraph
(g)and removing paragraphs
(h)and
(i)to read as follows: § 97.207 Space station.
(g)The license grantee of each space station must make the following written notifications to the International Bureau, FCC, Washington, DC 20554.
(1)A pre-space notification within 30 days after the date of launch vehicle determination, but no later than 90 days before integration of the space station into the launch vehicle. The notification must be in accordance with the provisions of Articles 9 and 11 of the International Telecommunication Union
(ITU)Radio Regulations and must specify the information required by Appendix 4 and Resolution No. 642 of the ITU Radio Regulations. The notification must also include a description of the design and operational strategies that the space station will use to mitigate orbital debris, including the following information:
(i)A statement that the space station licensee has assessed and limited the amount of debris released in a planned manner during normal operations, and has assessed and limited the probability of the space station becoming a source of debris by collisions with small debris or meteoroids that could cause loss of control and prevent post-mission disposal;
(ii)A statement that the space station licensee has assessed and limited the probability of accidental explosions during and after completion of mission operations. This statement must include a demonstration that debris generation will not result from the conversion of energy sources on board the spacecraft into energy that fragments the spacecraft. Energy sources include chemical, pressure, and kinetic energy. This demonstration should address whether stored energy will be removed at the spacecraft's end of life, by depleting residual fuel and leaving all fuel line valves open, venting any pressurized system, leaving all batteries in a permanent discharge state, and removing any remaining source of stored energy, or through other equivalent procedures specifically disclosed in the application;
(iii)A statement that the space station licensee has assessed and limited the probability of the space station becoming a source of debris by collisions with large debris or other operational space stations. Where a space station will be launched into a low-Earth orbit that is identical, or very similar, to an orbit used by other space stations, the statement must include an analysis of the potential risk of collision and a description of what measures the space station operator plans to take to avoid in-orbit collisions. If the space station licensee is relying on coordination with another system, the statement must indicate what steps have been taken to contact, and ascertain the likelihood of successful coordination of physical operations with, the other system. The statement must disclose the accuracy—if any—with which orbital parameters of non-geostationary satellite orbit space stations will be maintained, including apogee, perigee, inclination, and the right ascension of the ascending node(s). In the event that a system is not able to maintain orbital tolerances, *i.e.* , it lacks a propulsion system for orbital maintenance, that fact should be included in the debris mitigation disclosure. Such systems must also indicate the anticipated evolution over time of the orbit of the proposed satellite or satellites. Where a space station requests the assignment of a geostationary-Earth orbit location, it must assess whether there are any known satellites located at, or reasonably expected to be located at, the requested orbital location, or assigned in the vicinity of that location, such that the station keeping volumes of the respective satellites might overlap. If so, the statement must include a statement as to the identities of those parties and the measures that will be taken to prevent collisions;
(iv)A statement detailing the post-mission disposal plans for the space station at end of life, including the quantity of fuel—if any—that will be reserved for post-mission disposal maneuvers. For geostationary-Earth orbit space stations, the statement must disclose the altitude selected for a post-mission disposal orbit and the calculations that are used in deriving the disposal altitude. The statement must also include a casualty risk assessment if planned post-mission disposal involves atmospheric re-entry of the space station. In general, an assessment should include an estimate as to whether portions of the spacecraft will survive re-entry and reach the surface of the Earth, as well as an estimate of the resulting probability of human casualty.
(v)If any material item described in this notification changes before launch, a replacement pre-space notification shall be filed with the International Bureau no later than 90 days before integration of the space station into the launch vehicle.
(2)An in-space station notification is required no later than 7 days following initiation of space station transmissions. This notification must update the information contained in the pre-space notification.
(3)A post-space station notification is required no later than 3 months after termination of the space station transmissions. When termination of transmissions is ordered by the FCC, the notification is required no later than 24 hours after termination of transmissions. 17. Amend § 97.301 as follows:
(a)Revise entries 80 and 75 in the HF frequency band of the table following paragraph (b);
(b)Revise entries 80, 75, 15, and -Do- in the HF frequency of the table following paragraph (c);
(c)Revise entries 80, 75, 40, and -Do- in the HF frequency of the table following paragraph (d); and
(d)Revise entries 80, 40, 15, and 10 in the HF frequency band of the table following paragraph (e). The revisions read as follows: § 97.301 Authorized frequency bands.
(b)* * * Wavelength band ITU region 1 ITU region 2 ITU region 3 Sharing requirements see § 97.303, (paragraph) * * * * * * * *HF* *MHz* *MHz* *MHz* 80 m 3.50-3.60 3.50-3.60 3.50-3.60
(a)75 m 3.60-3.80 3.60-4.00 3.60-3.90
(a)* * * * * * *
(c)* * * Wavelength band ITU region 1 ITU region 2 ITU region 3 Sharing requirements see § 97.303, (paragraph) * * * * * * * *HF* *MHz* *MHz* *MHz* 80 m 3.525-3.60 3.525-3.60 3.525-3.60
(a)75 m 3.70-3.80 3.70-4.00 3.700-3.90
(a)* * * * * * * 15 m 21.025-21.20 21.025-21.20 21.025-21.20 Do 21.225-21.45 21.225-21.45 21.225-21.45 * * * * * * *
(d)* * * Wavelength band ITU region 1 ITU region 2 ITU region 3 Sharing requirements see § 97.303, (paragraph) * * * * * * * *HF* *MHz* *MHz* *MHz* 80 m 3.525-3.60 3.525-3.60 3.525-3.60
(a)75 m 3.80-4.00 3.80-3.90
(a)40 m 7.025-7.125 7.025-7.125 7.025-7.125
(a)Do 7.175-7.300
(a)* * * * * * * 15 m 21.025-21.20 21.025-21.20 21.025-21.20 Do 21.275-21.45 21.275-21.45 21.275-21.45 * * * * * * *
(e)* * * Wavelength band ITU region 1 ITU region 2 ITU region 3 Sharing requirements see § 97.303, (paragraph) * * * * * * * *HF* *MHz* *MHz* *MHz* 80 m 3.525-3.60 3.525-3.60 3.525-3.60
(a)40 m 7.025-7.075 7.025-7.125 7.025-7.075
(a)15 m 21.025-21.20 21.025-21.20 21.025-21.20 10 m 28.0-28.5 28.0-28.5 28.0-28.5 * * * * * * * 18. Amend § 97.303 by revising paragraph (g)(1) to read as follows: § 97.303 Frequency sharing requirements.
(g)* * *
(1)In the States of Colorado and Wyoming, bounded by the area of latitude 396° N. to 42° N. and longitude 103° W. to 108° W., an amateur station may transmit in the 902 MHz to 928 MHz band only on the frequency segments 902.0-902.4, 902.6-904.3, 904.7-925.3, 925.7-927.3, and 927.7-928.0 MHz. This band is allocated on a secondary basis to the amateur service subject to not causing harmful interference to, and not receiving any interference protection from, the operation of industrial, scientific and medical devices, automatic vehicle monitoring systems, or Government stations authorized in this band. 19. Amend § 97.305 by revising paragraph
(a)and the entries for 40 in the HF frequency band, and entries 1.25, and -Do- in the VHF frequency band to the table following paragraph
(c)to read as follows: § 97.305 Authorized emission types.
(a)Except as specified elsewhere in this part, an amateur station may transmit a CW emission on any frequency authorized to the control operator.
(b)* * *
(c)* * * Wavelength Frequencies band Emission types authorized Standards *see* § 97.307(f), (paragraph) * * * * * * * HF * * * * * * * 40 m 7.000-7.100 MHz RTTY, data (3),
(9)40 m 7.075-7.100 MHz Phone, image (1), (2), (9),
(11)40 m 7.100-7.125 MHz RTTY, data (3),
(9)40 m 7.125-7.300 MHz Phone, image (1),
(2)* * * * * * * VHF * * * * * * * 1.25 m 219-220 MHz Data
(13)Do 222-225 MHz RTTY, data, test MCW, phone, SS, image (2), (6),
(8)* * * * * * * 20. Amend § 97.309 by revising paragraph
(b)introductory text to read as follows: § 97.309 RTTY and data emission codes.
(b)Where authorized by §§ 97.305(c) and 97.307(f) of this part, a station may transmit a RTTY or data emission using an unspecified digital code, except to a station in a country with which the United States does not have an agreement permitting the code to be used. RTTY and data emissions using unspecified digital codes must not be transmitted for the purpose of obscuring the meaning of any communication. When deemed necessary by a District Director to assure compliance with the FCC Rules, a station must: 21. Amend § 97.313 by revising paragraph
(c)introductory text, (c)(1) and (c)(2) to read as follows: § 97.313 Transmitter power standards.
(c)No station may transmit with a transmitter power exceeding 200 W PEP:
(1)On the 10.10-10.15 MHz segment;
(2)When the control operator is a Novice Class operator or a Technician Class operator who has received credit for proficiency in telegraphy in accordance with the international requirements; or 22. Revise § 97.315 to read as follows: § 97.315 Certification of external RF power amplifiers.
(a)Any external RF power amplifier (see § 2.815 of the FCC Rules) manufactured or imported for use at an amateur radio station must be certificated for use in the amateur service in accordance with subpart J of part 2 of the FCC Rules. No amplifier capable of operation below 144 MHz may be constructed or modified by a non-amateur service licensee without a grant of certification from the FCC.
(b)The requirement of paragraph
(a)does not apply if one or more of the following conditions are met:
(1)The amplifier is constructed or modified by an amateur radio operator for use at an amateur station.
(2)The amplifier was manufactured before April 28, 1978, and has been issued a marketing waiver by the FCC, or the amplifier was purchased before April 28, 1978, by an amateur radio operator for use at that operator's station.
(3)The amplifier is sold to an amateur radio operator or to a dealer, the amplifier is purchased in used condition by a dealer, or the amplifier is sold to an amateur radio operator for use at that operator's station.
(c)Any external RF power amplifier appearing in the Commission's database as certificated for use in the amateur service may be marketed for use in the amateur service. 23. Revise § 97.317 to read as follows: § 97.317 Standards for certification of external RF power amplifiers.
(a)To receive a grant of certification, the amplifier must:
(1)Satisfy the spurious emission standards of § 97.307
(d)or
(e)of this part, as applicable, when the amplifier is operated at the lesser of 1.5 kW PEP or its full output power and when the amplifier is placed in the “standby” or “off” positions while connected to the transmitter.
(2)Not be capable of amplifying the input RF power (driving signal) by more than 15 dB gain. Gain is defined as the ratio of the input RF power to the output RF power of the amplifier where both power measurements are expressed in peak envelope power or mean power.
(3)Exhibit no amplification (0 dB gain) between 26 MHz and 28 MHz.
(b)Certification shall be denied when:
(1)The Commission determines the amplifier can be used in services other than the Amateur Radio Service, or
(2)The amplifier can be easily modified to operate on frequencies between 26 MHz and 28 MHz. 24. Revise § 97.401 to read as follows: § 97.401 Operation during a disaster. A station in, or within 92.6 km (50 nautical miles) of, Alaska may transmit emissions J3E and R3E on the channel at 5.1675 MHz (assigned frequency 5.1689 MHz) for emergency communications. The channel must be shared with stations licensed in the Alaska-Private Fixed Service. The transmitter power must not exceed 150 W PEP. A station in, or within 92.6 km of, Alaska may transmit communications for tests and training drills necessary to ensure the establishment, operation, and maintenance of emergency communication systems. 25. Amend § 97.407 by revising paragraph
(b)to read as follows: § 97.407 Radio amateur civil emergency service.
(b)The frequency bands and segments and emissions authorized to the control operator are available to stations transmitting communications in RACES on a shared basis with the amateur service. In the event of an emergency which necessitates invoking the President's War Emergency Powers under the provisions of section 706 of the Communications Act of 1934, as amended, 47 U.S.C. 606, RACES stations and amateur stations participating in RACES may only transmit on the frequency segments authorized pursuant to part 214 of this chapter. 26. Amend § 97.505 by revising paragraph (a)(9) to read as follows: § 97.505 Element credit.
(a)* * *
(9)An expired FCC-granted Technician Class operator license document granted before February 14, 1991; an expired FCC-granted Technician Class operator license document granted after February 14, 1991 accompanied by documentation showing the examinee has passed a telegraphy examination; or an expired FCC-granted General, Advanced, or Amateur Extra Class operator license document: Element 1. 27. Amend § 97.509 by revising paragraphs
(a)and
(m)to read as follows: § 97.509 Administering VE requirements.
(a)Each examination for an amateur operator license must be administered by a team of at least 3 VEs at an examination session coordinated by a VEC. The number of examinees at the session may be limited.
(m)After the administration of a successful examination for an amateur operator license, the administering VEs must submit the application document to the coordinating VEC according to the coordinating VEC's instructions. 28. Amend § 97.519 by revising paragraph
(b)introductory text to read as follows: § 97.519 Coordinating examination sessions.
(b)At the completion of each examination session, the coordinating VEC must collect applicant information and test results from the administering VEs. The coordinating VEC must: [FR Doc. E6-19189 Filed 11-14-06; 8:45 am] BILLING CODE 6712-01-P FEDERAL COMMUNICATIONS COMMISSION 47 CFR Part 73 [FCC No. 06-160: MB Docket No. 02-136; RM-10458, RM-10663, RM-10667, RM-10668] Radio Broadcasting Services; Aberdeen, WA; Arlington and Astoria, OR; Bellingham and College Place, WA; Coos Bay, OR; Covington, Forks, and Fossil, WA; Gladstone, OR; Hermiston, OR; Hoquiam, WA; Ilwaco, Kent, and Long Beach, WA; Manzanita, Moro and Portland, OR; Shoreline, WA; Springfield-Eugene, OR; The Dalles and Tillamook, OR; Trout Lake and Walla Walla, WA AGENCY: Federal Communications Commission. ACTION: Final rule; denial of application for review. SUMMARY: This document denies an Application for Review filed by Triple Bogey, LLC,MCC Radio, LLC and KDUX Acquisition directed to the *Report and Order* in this proceeding. With this action, the proceeding is terminated. FOR FURTHER INFORMATION CONTACT: Robert Hayne, Media Bureau,
(202)418-2177. SUPPLEMENTARY INFORMATION: This is a synopsis of the *Memorandum Opinion and Order* in MB Docket No. 02-136, adopted October 25, 2006, and released October 31, 2006. The full text of this decision is available for inspection and copying during normal business hours in the FCC Reference Information Center at Portals II, CY-A257, 445 12th Street, SW., Washington, DC 20554. The complete text of this decision may also be purchased from the Commission's copy contractor, Best Copy and Printing, Inc., Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC 20554, telephone 1-800-378-3160, or *http://www.BCPIWEB.com.* This document is not subject to the Congressional Review Act. (The Commission is, therefore, not required to submit a copy of this *Memorandum Opinion and Order* to GAO, pursuant to the Congressional Review Act, *see* 5 U.S.C. 801(a)(1)(A), because the application for review was denied.) List of Subjects in 47 CFR Part 73 Radio, Radio broadcasting. Federal Communications Commission. Marlene H. Dortch, Secretary. [FR Doc. E6-19252 Filed 11-14-06; 8:45 am] BILLING CODE 6712-01-P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 223 [Docket No. 061030282-6282-01; I.D. 102506A] RIN 0648-AU97 Endangered and Threatened Wildlife; Sea Turtle Conservation; Correction AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Emergency final rule; correction. SUMMARY: On August 25, 2006, NMFS issued a final rule to require the use of chain mats on sea scallop dredges in the mid-Atlantic sea scallop fishery in order to help protect sea turtles. The regulation became effective on September 25, 2006. Shortly after the rule's effective date, NMFS became aware of a discrepancy between the two options in the regulation for configuring the chain mat. This emergency final rule corrects the existing regulation to ensure that the protection to sea turtles expected from the August 25, 2006 rule is achieved. This emergency final rule requires that any vessel with a sea scallop dredge and required to have a Federal Atlantic sea scallop fishery permit, regardless of dredge size or vessel permit category, present in waters south of 41° 9.0′ N. lat., from the shoreline to the outer boundary of the Exclusive Economic Zone must have on each dredge a chain mat composed of horizontal (tickler) and vertical (“up-and-down”) chains for the duration of the trip. The chains must be configured such that the length of each side of the square or rectangle formed by the intersecting chains is less than or equal to 14 inches (35.5 cm). Any incidental take of threatened sea turtles in sea scallop dredge gear in compliance with this gear modification requirement and all other applicable requirements will be exempted from the Endangered Species Act's prohibition against takes. DATES: Effective November 18, 2006. ADDRESSES: Ellen Keane, NMFS, Northeast Region, One Blackburn Drive, Gloucester, MA 01930. FOR FURTHER INFORMATION CONTACT: Ellen Keane (ph. 978-281-9300 x6526, fax 978-281-9394, email *ellen.keane@noaa.gov* ) or Barbara Schroeder (ph. 301-713-2322, fax 301-427-2522, email *barbara.schroeder@noaa.gov* ). SUPPLEMENTARY INFORMATION: Background On August 25, 2006, NMFS issued a final rule to require sea turtle conservation measures for all sea scallop dredge vessels fishing south of 41° 9.0′ N. latitude from May 1 through November 30 each year (71 FR 50361, “chain mat regulation”). The chain mat regulation is in effect now and the requirement to use chain mats applies each year from May 1 through November 30. All vessels with a sea scallop dredge required to have a Federal Atlantic sea scallop fishery permit, regardless of dredge size or vessel permit category, are required to modify their dredge(s) when present in waters south of 41° 9.0′ N. latitude, from the shoreline to the outer boundary of the Exclusive Economic Zone (EEZ). Vessels that harvest sea scallops from these waters are required to have the chain mat installed on their dredge(s) for the duration of the trip. This action was necessary to help reduce mortality and injury to endangered and threatened sea turtles in scallop dredge gear and to conserve sea turtles listed under the Endangered Species Act (ESA). For background information and justification for these measures, please refer to the May 25, 2005 proposed rule (70 FR 30660), the August 2006 final rule and the Environmental Assessment
(EA)prepared for that action. The chain mat regulation provides fishermen with two options for configuring the gear. Under the first option, fishermen are required to use a specified number of vertical and horizontal chains depending on the width of the dredge. The second option requires that the gear be configured such that no opening was greater than 14 inches (35.5 cm) on a side. The spacing of the chains under the first option was intended to be based on the experimental fishery (July 17, 2003 - October 9, 2004) to test the chain mat gear. The August 2006 final rule and EA include details of the study. During the experimental fishery, 11 vertical and 6 horizontal chains were used for the 14 and 15 ft (4.27 and 4.57 m) dredges, while 9 vertical and 6 horizontal chains were used for the 11 ft (3.35 m) dredge. Spaced on a normal sweep arrangement, this configuration resulted in a square or rectangle that was less than or equal to 14 inches (35.5 cm) on each side. The study showed that the use of a chain mat of this size prevented sea turtles from entering the dredge bag and injuries that resulted from such capture. NMFS believed that the two options for configuring the chains produced the same result, namely rectangles or squares with sides measuring 14 inches (35.5 cm) or less. Based on the results of the experimental fishery to test the chain mat, the life history of sea turtles, and the size of sea turtles observed taken in the sea scallop dredge fishery, a spacing of 14 inches (35.5 cm) or less is expected to prevent most, if not all, sea turtles from entering the dredge bag. Shortly after the rule's effective date, NMFS became aware of a discrepancy between the two options in the regulation for configuring the chain mat. Fishermen reported that gear configured according to the number of chains specified by dredge width could result in openings of 16.5 inches (42.9 cm). NMFS investigated these reports and found that, depending on the dredge width and configuration, using the number of chains specified for the dredge width does result in openings greater than 14 inches (35.5 cm) in certain cases. The larger-than-expected openings may reduce the chain mat's effectiveness in reducing sea turtle injuries because sea turtles may slip through the chain mat and enter the dredge bag. Once in the dredge bag, sea turtles are at risk of serious injury and mortality as they may be struck by its contents, forcibly submerged, and/or dumped on the vessel's deck and crushed by the gear. The August 2006 final rule was issued in order to prevent these sources of serious injury and mortality. Therefore, NMFS is issuing this emergency final rule to correct the mistake in the chain mat regulation in order to ensure it achieves its intended purpose to help protect sea turtles listed under the ESA during the time when the distribution of sea turtles overlaps with that of the scallp fishery, namely from May through November. This rule is issued pursuant to sections 4(d) and 11(f) of the ESA. It requires that all sea scallop vessels present in mid-Atlantic waters from May 1 through November 30 configure their dredges such that no opening in the chain mat is greater than 14 inches (35.5 cm) on a side. The area affected by the regulation remains waters south of 41° 9.0′ N. latitude, from the shoreline to the outer boundary of the EEZ. The temporal extent of the regulation remains May 1 through November 30 each year. The EA for Sea Turtle Conservation Measures for the mid-Atlantic Sea Scallop Dredge Fishery analyzed the biological, physical, economic, and social impacts that would result from the chain mat regulation, as well as a number of other alternatives. The analysis presented in the EA for the biological and physical consequences of the chain mat regulation evaluated the impacts resulting from the expected opening of 14 inches (35.5 cm) or less. Therefore, the impacts of the chain mat configuration required by this emergency rule have been analyzed in the previous EA. This action is categorically excluded from the requirement to prepare either an EA or an Environmental Impact Statement under the National Environmental Policy Act. The categorical exclusion prepared for this emergency rule discusses the minor impacts that may result from this action. The EA also analyzed the economic and social impacts of the August 2006 chain mat regulation. The cost of the gear modification is composed of the potential revenue loss due to a reduction in sea scallop dredge catch and the cost of the material and labor to configure the dredge. The potential reduction in catch was based on the results of the experimental fishery to test the chain mat modified gear. The experimental fishery used three dredge widths (11-, 14-, and 15-ft dredge widths (3.35, 4.27, and 4.57 m)) with chain mat openings less than or equal to 14 inches (35.5 cm). During the experimental fishery, an average reduction of approximately 6.7 percent was observed. This average loss was used to estimate the cost due to a reduction in scallop catch. As this analysis was based on openings of less than or equal to 14 inches (35.5 cm) per side used in the experimental fishery, this emergency final rule is not expected to result in any additional costs due to scallop catch reduction that have not already been evaluated in the EA for the chain mat regulation. The second cost is the cost to modify the gear, namely, the costs to purchase and install the chains. Since many vessels have already installed the chain mat, there will be a slight additional cost to reconfigure the gear to comply with the new regulation. However, this cost is expected to be minimal. First, as described above, vessels could choose one of two options for configuring the gear. Some vessels have chosen to configure it such that the openings are less than 14 inches (35.5 cm) and, therefore, will not have to reconfigure the gear. Additionally, openings greater than 14 inches (35.5 cm) only result from using the specified number of chains in certain cases, depending on dredge width and configuration. Therefore, some vessels following the specified number of chains will also not have to reconfigure their gear. However, an unknown number of vessels will need to reconfigure the gear. For these vessels, the cost is expected to be minimal. NMFS does not anticipate that this emergency rule will result in any loss of fishing time for vessels that need to reconfigure the gear. There are two costs in reconfiguring the gear, the cost of materials and the cost of labor. These vessels will have already purchased the majority of the chain needed to configure the chain mat. There will be a slight additional cost for the purchase of additional chain in order to achieve openings equal to or less than 14 inches (35.5 cm). However, the amount of additional chain needed will be less than that already purchased. The EA estimated a labor cost of approximately 50 dollars per dredge if the vessel were to use a welder to attach the chain mat. This emergency final rule will require some additional welding, but this cost is minimal. Therefore, this emergency final rule does not significantly change the economic impacts anticipated in the EA. Classification This final rule has been determined to be not significant by the Office of Management and Budget for the purposes of Executive Order 12866. Because the rulemaking requirements of 5 U.S.C. 553 are not required by the Administrative Procedure Act or any other law, the analytical requirements of the Regulatory Flexibility Act are not applicable. The Assistant Administrator for Fisheries
(AA)finds good cause under 5 U.S.C. 553(b)(B) to waive the requirement for prior notice and opportunity for public comment on this rule as it would be impracticable and contrary to the public interest. On August 25, 2006, NMFS issued a final rule requiring chain mats to be used under certain conditions on scallop dredges in order to help protect sea turtles (71 FR 50361). The August 25, 2006, final rule became effective on September 25, 2006. Shortly after the rule's effective date, NMFS was made aware of a discrepancy between the two options in the regulation for configuring the chain mat. One option was to use the specified number of horizontal and vertical chains based on width of dredge frame; the other option was to use as many horizontal and vertical chains that would produce rectangles or squares with sides equaling 14 inches (35.5 cm) or less. NMFS believed that the two options would produce the same result, namely rectangles or squares with sides measuring 14 inches (35.5 cm) or less. Based on the results of the experiment to test the chain mat modification, the life history of loggerhead sea turtles-- the predominant species observed caught in dredges-- and the size of sea turtles observed taken in the sea scallop dredge fishery, a spacing of 14 inches (35.5 cm) or less is expected to prevent most, if not all sea turtles, from entering the dredge bag. However, upon implementation of the August 25, 2006, final rule, NMFS discovered that, at least for some dredge widths, using the specified number of vertical and horizontal chains produces rectangles or squares that are greater than 14 inches (35.5 cm). This emergency final rule must be implemented immediately because the variance in chain mat configurations may reduce the effectiveness of the regulation in reducing sea turtle injuries. Under the current regulations, for some chain mat configurations based on dredge width and the specified number of horizontal and vertical chains, some sea turtles may slip through the openings in the chain mat and enter the dredge bag. As explained in the preambles to the proposed (70 FR 30660, May 27, 2005) and final (71 FR 50361, August 25, 2006) rules regarding the chain mat requirement, sea turtles that enter the dredge bag are at risk of injury and mortality as they may be struck by the contents of the dredge bag, forcibly submerged, and/or dumped on the vessel's deck and crushed by the gear. The best available information indicates that a large number of sea turtles are injured and killed in the scallop dredge fishery when it overlaps with sea turtles in the mid-Atlantic (NMFS, 2006). Loggerhead, Kemp's ridley, and green sea turtles undergo temperature dependent seasonal migrations along the mid-Atlantic coast (Morreale and Standora, 1998; Plotkin and Spotila, 2002). In general, these sea turtles occur in waters from Virginia to New York from May through November and in waters off North Carolina year-round (NMFS, 1994), although they are considered rare north of Cape Hatteras in the winter (Mitchell *et al.* , 2003). NMFS does not anticipate any fishing south of Cape Hatteras due to the lack of scallop resources there. When the sea temperature drops in the Mid-Atlantic, sea turtles migrate away from the area and are at less risk of getting caught in the dredge bag. Data show that sea turtle distribution overlaps with that of the scallop dredge fishery in the Mid-Atlantic during the period from May 1 through November 30. Therefore, the potential for interactions between the scallop dredge fishery and sea turtles exists this year through November, and sea turtles remain at risk of injury or mortality due to capture in the dredge bag unless this rule is implemented immediately. It would be impracticable and contrary to the public interest to allow for prior notice and an opportunity for public comment on this final rule as the delay would prevent the agency from executing its function of conserving sea turtles listed as threatened or endangered under the Endangered Species Act. The overlap between the sea scallop dredge fishery and sea turtle distribution in the Mid-Atlantic lasts from May 1 through November 30. During this period, sea turtles are at the greatest risk of injury and mortality due to interactions with scallop dredge gear. If this regulation were delayed to allow for prior notice and opportunity for public comment, sea turtles would remain exposed to the risk of slipping through chain mats configured with openings greater than 14 inches (35.5 cm) and of being injured or killed as a result. To ensure the chain mat requirement provides the intended conservation benefit to listed sea turtles, NMFS must correct the chain mat regulation as soon as possible given that the distribution of sea turtles overlaps with the scallop fishery through November. Therefore, good cause exists under 5 U.S.C. 553(b)(B) to waive the requirement for prior notice and opportunity for public comment. The AA also finds good cause under 5 U.S.C. 553(d)(3) to waive part of the 30-day delay in effective date of this final rule. Such a delay would reduce the level of protection afforded to sea turtles during the period their distribution overlaps with the scallop dredge fishery. The overlap between the sea scallop dredge fishery and sea turtle distribution in the Mid-Atlantic lasts from May 1 through November 30. During this period, sea turtles are at the greatest risk of injury and mortality due to interactions with the dredge gear. If the effective date of this regulation were delayed, sea turtles would remain exposed to the risk of slipping through chain mats configured with openings greater than 14 inches (35.5 cm) and of being injured or killed as a result. In addition, allowing for a 30-day delay in effectiveness would prevent the agency from executing its function of conserving sea turtles listed as threatened or endangered under the Endangered Species Act. However, because some fishermen may need some time to modify their chain mats to attach extra chains, NMFS will delay the effective date of this rule until November 20, 2006. Literature Cited Mitchell, G. H., R. D. Kenney, A. M. Farak, R. J. Campbell. 2003. Evaluation of occurrence of endangered and threatened marine species in naval ship trial areas and transit lanes in the Gulf of Maine and offshore of Georges Bank. Naval Undersea Warfare Center Division Newport, Rhode Island. NUWC-NPT Technical Memo 0-121A. 113 pp. Morreale, S. J. and E. A. Standora. 1998. Early life stage econlogy of sea turtles in northeastern U.S. waters. U.S. Dep. Commer. NOAA Tech. Mem. NMFS-SEFSC-413. 49pp. NMFS (National Marine Fisheries Service). 1994. State and federal fishery interactions with sea turtles in the mid-Atlantic area. NOAA/NMFS, Silver Spring, MD. 13 pp. NMFS (National Marine Fisheries Service). 2006. Endangered Species Act Section 7 Consultation on the Atlantic Sea Scallop Fishery Management Plan. NMFS, Northeast Regional Office. 106 pp. Plotkin P. T. and J. R. Spotila. 2002. Post nesting migrations of loggerhead turtles, *Caretta caretta* , from Georgia, USA: conservation implications for a genetically distinct subpopulation. Oryx. 36(4):396-399. List of Subjects in 50 CFR Part 223 Exports, Imports, Transportation. Dated: November 8, 2006. Samuel D. Rauch III, Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service. For the reasons set forth in the preamble, 50 CFR part 223 is amended as follows: PART 223—THREATENED MARINE AND ANADROMOUS SPECIES 1. The authority citation for part 223 continues to read as follows: Authority: 16 U.S.C. 1531-1543; subpart B, § 223.12 also issued under 16 U.S.C. 1361 et. seq.; 16 U.S.C. 5503(d) for § 223.206(d)(9). 2. In § 223.206, paragraph (d)(11) is revised to read as follows: § 223.206 Exemptions to prohibitions relating to sea turtles.
(11)*Restrictions applicable to sea scallop dredges in the mid-Atlantic* —(i) Gear Modification. During the time period of May 1 through November 30, any vessel with a sea scallop dredge and required to have a Federal Atlantic sea scallop fishery permit, regardless of dredge size or vessel permit category, present in waters south of 41° 9.0′ N. latitude, from the shoreline to the outer boundary of the Exclusive Economic Zone must have on each dredge a chain mat described as follows. The chain mat must be composed of horizontal (“tickler”) chains and vertical chains that are configured such that the length of each side of the square or rectangle formed by the intersecting chains is less than or equal to 14 inches (35.5 cm). The chains must be connected to each other with a shackle or link at each intersection point. The measurement must be taken along the chain, with the chain held taut, and include one shackle or link at the intersection point and all links in the chain up to, but excluding, the shackle or link at the other intersection point.
(ii)Any vessel that harvests sea scallops in or from the waters described in (d)(11)(i) and that is required to have a Federal Atlantic sea scallop fishery permit must have the chain mat configuration installed on all dredges for the duration of the trip. [FR Doc. E6-19304 Filed 11-14-06; 8:45 am] BILLING CODE 3510-22-S DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 229 [Docket No. 061107293-6293-01; I.D. 103006B] RIN 0648-AU95 Right Whale Protection; Southeast U.S. Gillnet Closure AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Emergency rule. SUMMARY: NMFS is prohibiting gillnet fishing or gillnet possession in Atlantic Ocean waters west of 80°00′ W. long. between 29°00′ N. lat. (just south of New Smyrna Beach, Fla.) and 32°00′ N. lat. (the approximate state boundary between Georgia and South Carolina) and within 35 nautical miles of the South Carolina coast. An exemption to the prohibition on the possession of gillnet gear is provided for transiting through this area if gear is stowed in accordance with this rule. NMFS is taking this action to prevent a significant risk to the well being of endangered right whales from entanglement in gillnet gear in the core right whale calving area during the calving season. DATES: This action is effective November 15, 2006 through April 15, 2007. ADDRESSES: Copies of the Environmental Assessment
(EA)prepared in association with this emergency rule may be obtained from the persons listed below under the FOR FURTHER INFORMATION CONTACT section. FOR FURTHER INFORMATION CONTACT: Laura Engleby, 727-551-5791, Barb Zoodsma, 904-321-2806, or Nancy Young, 727-551-5607. Electronic Access: Background documents, including the EA may be downloaded at *http://sero.nmfs.noaa.gov/* SUPPLEMENTARY INFORMATION: Background The northern right whale ( *Eubalaena glacialis* ) was severely depleted by commercial whaling, and despite protection from commercial harvest since 1935 has not recovered. The North Atlantic population is believed to be as few as 300 individuals, making it one of the most imperiled of the endangered large whale populations in the world (NMFS 2005). Deaths from human related activities are believed to be the principal reason for a declining adult survival rate (Caswell *et al.* , 1999) and the lack of recovery in the species. From 1999 to 2003, human-caused mortality and serious injury to northern right whales in the North Atlantic from fishery entanglements and ship strikes were estimated as an average of 2.6 whales per year (Waring *et al.* , 2006). Fraus *et al.*
(2005)indicated that the overall mortality rate for North Atlantic right whales increased between 1980 and 1998 to a level of at least four percent per year, a rate that is not sustainable. From 1999-2003, Waring *et al.*
(2006)documented 31 reports of entanglements in commercial fishing gear that resulted in 5 serious injuries and 3 mortalities, for an average of 1.6 mortalities and serious injuries per year over that time period. The northern right whale has been listed as endangered under the Endangered Species Act
(ESA)since the ESA's passage in 1973 (35 FR 8495, June 2, 1970). In June 1994, NMFS designated three areas of the right whale's Atlantic range in the United States as critical habitat:
(1)Great South Channel,
(2)Cape Cod Bay, and
(3)the southeastern U.S. (59 FR 28793, June 3, 1994). The southeastern U.S. critical habitat includes coastal waters between 31°15′ N. lat. and 30°15′ N. lat. from the coast out 15 nautical miles (27.8 km), and the coastal waters between 30°15′ N. lat. and 28°00′ N. lat. from the coast out 5 nautical miles (9.3 km) (§ 226.203 of this chaper). Coastal Atlantic waters off the southeastern U.S. are the North Atlantic right whale's only known and likely only calving grounds. During the winter calving season, these waters support the entire population's calving females and their calves, plus, in some years, a large proportion of the remainder of the population. As required by ESA section 4(f)(1), NMFS developed a recovery plan for the northern right whale in 1991, which was revised and updated in 2001 and 2005. The current recovery plan states, “the most immediate need for the North Atlantic right whale is to reduce or eliminate human-related deaths and injuries” and that “direct and indirect impacts from human activities -mostly in the form of vessel collisions and entanglement in fishing gear -almost certainly have contributed to a lack of recovery in the North Atlantic. Action is urgently needed to reduce the frequency of collisions with ships and fishing gear entanglements, and thus to improve the survival of right whales” (NMFS 2005). Therefore, the development and implementation of strategies to modify fishing operations and gear to reduce the likelihood of entanglement, mitigate the effect of entanglements, enhance the possibility of disentanglement, and assess the effectiveness of such strategies is a priority one recovery task, i.e., an action that must be taken to prevent extinction or to prevent the species from declining irreversibly (NMFS 2005). To date, NMFS has been working to address right whale serious injury and mortality in commercial fishing gear primarily through its authority under the Marine Mammal Protection Act (MMPA). Pursuant to MMPA section 118, NMFS has developed an Atlantic Large Whale Take Reduction Plan (ALWTRP) and implementing regulations (§ 229.32 of this chapter) to reduce serious injury and mortality of right whales resulting from commercial fisheries including gillnet fisheries. The ESA provides authority to NMFS for multiple mechanisms to achieve the Act's overall purpose of conserving threatened and endangered species. Section 4(b)(7) of the ESA (16 U.S.C. 1533(b)(7)) authorizes NMFS to issue regulations, not subject to notice and comment, regarding emergencies posing a significant risk to the well-being of listed species. Such regulations may take effect immediately upon publication in the **Federal Register** and may be effective up to 240 days. Recent Events On January 22, 2006, a dead right whale calf was found floating off Jacksonville Beach, Florida. The calf was necropsied by a specialized large whale necropsy team and evidence of recent entanglement in gillnet gear was clearly documented. NMFS determined, based on best available information and discussions with scientific investigators, that the right whale's entanglement in gillnet gear ultimately led to the death of the animal. As a result of these findings, NMFS enacted temporary restrictions on gillnet fishing from February 15, 2006, through March 31, 2006 (71 FR 8223, February 16, 2006), in accordance with the ALWTRP's implementing regulations at 50 CFR 229.32(g)(1). The emergency regulation was necessary to protect right whales from further serious injury or mortality due to entanglement in gillnet gear. NMFS then collected and analyzed additional information to determine the scope of permanent protective measures as required by the regulations. As part of this process, NMFS convened a meeting of the Atlantic Large Whale Take Reduction Team's Mid-Atlantic/Southeast Subgroup to seek input regarding future management options to protect right whales from additional serious injury and mortality from gillnetting. As a result, NMFS has prepared and published a Notice of Proposed Rulemaking (RIN 0648-AU90) pertaining to gillnet fishing and right whale protection in the southeast U.S. in the “Proposed Rules” section of today's **Federal Register** and is seeking public comment. Significant Risk to the Right Whales' Well-Being A review of the Right Whale Sightings Database, curated by the University of Rhode Island, indicates that the vast majority of right whale mother/calf pairs have been observed along Florida, Georgia, and South Carolina. Right whale mother/calf pairs off Florida and Georgia have been typically observed in waters west of 80°00′ W long. Right whales have been visually (McLellan *et al.* , 2001, Glass *et al.* , 2005) and acoustically (Clark, 2006) detected in waters up to 30 miles offshore of South Carolina. Predictive models, based on aerial survey data collected off Florida and Georgia, suggest a strong relationship between the spatial distribution of calving right whales and water temperature and bathymetry. Suitable environmental conditions for calving right whales are typically found off South Carolina during winter months to distances of 35 nautical miles (64.8 km). Right whales occur in the area from South Carolina to Florida, north of 29°00′ N lat., from mid-November through mid-April. Right whale mother/calf pairs have been observed south of 29°00′ N lat., but in this area are often found close to shore, in Florida state waters, where state regulations prohibit gillnet fishing. In 2004, a small group of gillnet fishermen targeting whiting began using the area off Jacksonville, Florida, near the location where the entangled, dead right whale calf was first reported in January 2006. These fishermen use large amounts of net with long soak times, and individual nets are left untended, either overnight or while other nets are being fished. Recently, NMFS has learned of the expressed intent of fishermen to target whiting with gillnets off Jacksonville, Florida, until such activity is prohibited. NMFS has also been alerted to the presence of additional shark gillnet fishermen that are working out of Fernandina Beach, Florida, and Daytona, Florida. Because of this expansion of effort and new method of gillnet fishing in the Southeast Atlantic, the new information on shark gillnetting effort, and the documented mortality of a right whale calf as a result of entanglement in gillnet fishing gear, NMFS is concerned that there is substantial risk of additional gillnet entanglements and resultant serious injury or mortality when right whales return to their southeast calving grounds this year. Because of the critical status of endangered right whales, the vulnerability of mothers and calves, and the negative impact any additional human-caused mortality would have on the species' ability to survive and recover, NMFS believes that continued gillnet fishing as currently practiced in the southeast calving grounds constitutes a significant risk to the well-being of endangered right whales. NMFS is publishing a proposed rule in this **Federal Register** , which would address, on a long-term basis, the risk to right whales from the increase in gillnet effort in the right whale's only known calving area. NMFS intends to ensure full public participation, seek comments, and evaluate possible exemptions to a complete gillnet closure, before finalizing any permanent rule. Because of this process, a permanent rule is not likely to be in effect until early 2007. However, right whales are expected to begin arriving in the core calving area November 15. Therefore, to ensure adequate protection for right whales, particularly mothers and calves during the calving season, from gillnet fishing in the calving area that NMFS believes poses a significant risk to the well-being of right whales, NMFS is implementing this emergency rule. Prohibition on Gillnet Fishing and Possession Pursuant to 16 U.S.C. 1533(4)(b)(7), NMFS has determined that continued gillnet fishing activity in the core right whale calving area during the calving season constitutes a significant risk to the well-being of endangered right whales. NMFS has determined that this emergency rule prohibiting gillnet fishing and possession in the core calving area is necessary to prevent additional takes of right whales until a final, permanent rule can be implemented. NMFS has determined that the core right whale calving area requiring emergency gillnet prohibitions is the Atlantic Ocean waters west of 80°00′ W. longitude between 29°00′ N. lat. (just south of New Smyrna Beach, Fla.) and 32°00′ N. lat. (the area of the state boundary between Georgia and South Carolina) and the Atlantic Ocean waters within 35 nautical miles of the South Carolina coast. This area is specifically defined as the area bounded by straight lines connecting the following points in the order stated from south to north. Point N. Lat. W. Long. SE1 29°00′ ( 1 ) SE2 29°00′ 80°00′ SE3 32°00′ 80°00′ SE4 32°36′ 78°52′ SE5 32°51′ 78°36′ SE6 33°15′ 78°24′ SE7 33°27′ 78°04′ SE8 ( 2 ) ( 2 ) 1 Florida shoreline 2 Shoreline at South Carolina/North Carolina state border. Specifically, this emergency rule prohibits fishing with or possessing gillnet in the core right whale calving area as defined above from November 15, 2006, through April 15, 2007; the Right Whale Sightings Database, curated by the University of Rhode Island, indicates that the vast majority of right whale sightings in their core calving area occur between November 15 and April 15. Possession of gillnet aboard a vessel in transit through this core area is exempt from the restrictions if: All nets are covered with canvas or other similar material and lashed or otherwise securely fastened to the deck, rail, or drum; and all buoys, high flyers, and anchors are disconnected from all gillnets. No fish may be possessed aboard such a vessel in transit. This emergency rule is in effect from 0001, hours November 15, 2006, through 2400, hours April 15, 2007, or until the proposed rule pertaining to gillnet fishing and right whale protection becomes effective through the publication of a final rule or is withdrawn. Fisheries expected to be affected by this rulemaking include the Southeastern U.S. Atlantic shark gillnet fishery and the Southeast Atlantic gillnet fishery as described in the current MMPA List of Fisheries (71 FR 48802, August 22, 2006). NMFS believes there are approximately six to eight active vessels in the Southeastern U.S. Atlantic shark gillnet fishery. The effects of the emergency rule on this fishery are anticipated to be small because during the period covered by the emergency rule, most of the fishing activity typically occurs south of 29°00′ N lat., where the fishery will continue to operate under existing regulations, unaffected by this emergency rule. The Southeast Atlantic gillnet fishery targets coastal migratory finfish species such as Spanish mackerel, whiting, and bluefish, but also lands species such as King mackerel, that are caught incidentally to fishing operations. NMFS believes that up to 56 vessels participate in the Southeast Atlantic gillnet fishery, annually. The primary species targeted is Spanish mackerel; however, these landings primarily occur south of 29°00′ N lat., where the fishery will continue to operate under existing regulations, unaffected by this emergency rule. Fishers targeting whiting will be most affected by this rulemaking. During the ALWTRT's SE Subgroup meeting, fishers reported that in late February 2004, approximately 8 vessels began fishing for whiting using sink gillnet gear off Northeast Florida and that in 2004 and 2005, 15 vessels are estimated to have participated in this activity. In 2005, whiting catch in the affected area was 356,604 pounds (161,753 kg) with a dockside value of $276,824. This restriction has been announced on the NOAA weather channel, in newspapers, and other media. Gillnet fishermen may also call (727)824-5312 for updated information on gillnet restrictions along the Atlantic Coast of the Southeast U.S. Literature Cited Caswell, H., M. Fujiwara, and S. Brault. 1999. Declining survival probability threatens the North Atlantic right whale. Proc. Nat. Acad. Sci. 96:3308 3313. Clark, Christopher W. 2006. Application of passive acoustic methods to detect migrating right whales in New England and Mid-Atlantic waters. Final Report to NMFS under Contract Number WC133F-04-CN-0060. 71 pp. Glass, Allison H., Cynthia R. Taylor, and David M. Cupka. 2005. Monitoring North Atlantic right whales off the coasts of South Carolina and Georgia 2004-2005. Final report to National Fish and Wildlife Foundation. 16 pp. Kraus, S.D., M. W. Brown, H. Caswell, C.W. Clark, M. Fujiwara, P. K. Hamilton, R.D. Kenney, A.R. Knowlton, S. Landry, C.A. Mayo, W.A. McLellan, M.J. Moore, D.P. Nowacek, D.A. Pabst, A.J. Read, R.M. Rolland. 2005. North Atlantic Right Whales in Crisis. Science 22 July 2005: Vol. 309. no. 5734, pp. 561 562. McLellan, William A., Kim Marks Lefler, Guen Jones, Kirk Hardcastle, and D. Ann Pabst. 2001. Winter right whale surveys from Savannah, Georgia to Chesapeake Bay, Virginia February-March 2001. Final Report to NMFS under Contract Number 40WCNF1A0249. 36 pp. NMFS. 2005. Recovery Plan for the North Atlantic Right Whale ( *Eubalaena glacialis* ). National Marine Fisheries Service, Silver Spring, MD. Waring, G.T., E. Josephson, C.P. Fairfield, and K. Maze-Foley (Eds.). 2006. U.S. Atlantic and Gulf of Mexico marine mammal stock assessments 2005. U.S. Dept. Commerce., NOAA Tech. Mem. NMFS-NE-194, 346 pp. Classification Pursuant to section 4(b)(7) of the ESA, NMFS has determined that this action is necessary to prevent a significant risk to the well-being of endangered right whales. An Environmental Assessment for this action was prepared and is available from the agency upon request. As prior notice and an opportunity for public comment are not required to be provided for this rule pursuant to 16 U.S.C. 1533(4)(b)(7), the analytical requirements of 5 U.S.C. 601 *et seq.* , are not applicable. As required by 16 U.S.C. 1533(4)(b)(7)(B), NMFS has notified marine fisheries officials in Florida, Georgia, and South Carolina of this emergency rulemaking. NMFS determined that this action is consistent to the maximum extent practicable with the enforceable policies of the approved coastal management programs of Florida, Georgia, and South Carolina. This determination was submitted on October 20, 2006, for review by the responsible state agencies under section 307 of the CZMA. However, NMFS will follow the provisions at 15 CFR 930.32(b) authorizing a deviation from full consistency for emergencies, if the state concurrences are not received before the effective date of this rule. This action has been determined to be not significant under Executive Order 12866. This action does not contain a collection-of-information requirement for purposes of the Paperwork Reduction Act. Authority: 16 U.S.C 1533(b)(7). Dated: November 8, 2006. Samuel D. Rauch III, Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service. [FR Doc. 06-9205 Filed 11-9-06; 2:35 pm]
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31 references not yet in our index
- 23 CFR 635
- Pub. L. 109-59
- 23 CFR 411
- Pub. L. 96-354
- 5 USC 601-612
- Pub. L. 104-4
- 109 Stat. 48
- 44 USC 3501-3520
- 42 USC 4321-4347
- 119 Stat. 1144
- Pub. L. 102-240
- 105 Stat. 1914
- 49 CFR 1.48(b)
- 27 CFR 9
- 27 CFR 4
- 29 CFR 4022
- 29 CFR 4044
- 32 CFR 235
- 10 USC 2489a
- 303 F.3d 1163
- Pub. L. 104-13
- Pub. L. 107-198
- 47 CFR 1
- 47 CFR 2
- 47 CFR 97
- 47 USC 151-155
- 47 CFR 73
- 50 CFR 223
- 16 USC 1531-1543
- 50 CFR 229
- 50 CFR 229.32(g)(1)
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