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Code · REGISTER · 2006-12-18 · PROPOSED RULES · Unknown

Unknown. Final rule

30,146 words·~137 min read·/register/2006/12/18/06-55531

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

--- schema: federal-register doc_type: fedreg source_file: FR-2006-12-18.xml --- 71 242 Monday, December 18, 2006 Contents Agriculture Agriculture Department See Animal and Plant Health Inspection Service See Food Safety and Inspection Service NOTICES Agency information collection activities; proposals, submissions, and approvals, 75708 E6-21451 Animal Animal and Plant Health Inspection Service RULES Plant-related quarantine, foreign: Fruits and vegetables importation; list, 75649-75659 E6-21496 Centers Centers for Disease Control and Prevention NOTICES Agency information collection activities; proposals, submissions, and approvals, 75759-75760 E6-21527 Coast Guard Coast Guard RULES Ports and waterways safety; regulated navigation areas, safety zones, security zones, etc.:
Tacoma Narrows, WA, 75664-75669 E6-21456 E6-21457 E6-21459 Commerce Commerce Department See International Trade Administration See National Oceanic and Atmospheric Administration Defense Defense Department NOTICES Arms sales notification; transmittal letter, etc., 75717-75747 06-9742 06-9743 06-9744 06-9745 06-9746 06-9747 Meetings: Women in the Services Advisory Committee, 75747 06-9741 Education Education Department NOTICES Agency information collection activities; proposals, submissions, and approvals, 75747-75748 E6-21466 Grants and cooperative agreements; availability, etc.:
Statewide longitudinal data systems, 75848-75850 E6-21524 Energy Energy Department See Federal Energy Regulatory Commission EPA Environmental Protection Agency PROPOSED RULES Air pollution; standards of performance for new stationary sources: Solid waste incineration units; Federal plan requirements, 75816-75845 E6-21285 Air quality implementation plans; approval and promulgation; various States: Nevada, 75690-75694 E6-21500 North Dakota, 75687-75690 E6-21502 Wisconsin, 75694-75703 E6-21523 Toxic substances:
Hazardous substances priority list; chemical testing requirements, 75704-75705 E6-21494 Significant new uses— 2,3,5,6-tetrachloro-2,5-cyclohexadiene-1,4-dione, 75703-75704 E6-21495 NOTICES Agency information collection activities; proposals, submissions, and approvals, 75750-75751 E6-21501 Air pollution control: State operating permits programs— New Hampshire, 75751-75752 E6-21528 Reports and guidance documents; availability, etc.: Ecological Benefits Assessment Strategic Plan, 75752 E6-21543 Executive Executive Office of the President See Presidential Documents See Privacy and Civil Liberties Oversight Board FAA Federal Aviation Administration PROPOSED RULES Airworthiness directives:
Microturbo Saphir, 75684-75686 E6-21487 Class E airspace, 75686-75687 E6-21517 NOTICES Airport noise compatibility program: McClellan Palomar Airport, CA, 75800-75802 06-9740 Noise exposure maps— Spirit of St. Louis Airport, MO, 75802-75803 06-9752 Exemption petitions; summary and disposition, 75803 E6-21454 FCC Federal Communications Commission NOTICES Meetings; Sunshine Act, 75753-75754 06-9771 FDIC Federal Deposit Insurance Corporation RULES Practice and procedure: Corporate debt collection procedures, 75659-75662 E6-21470 Federal Energy Federal Energy Regulatory Commission RULES Public Utility Regulatory Policies Act:
Small power production and cogeneration facilities Correction, 75662 E6-21433 NOTICES Electric rate and corporate regulation combined filings, 75748-75750 E6-21430 Federal Motor Federal Motor Carrier Safety Administration NOTICES Agency information collection activities; proposals, submissions, and approvals, 75804 E6-21455 Grants and cooperative agreements; availability, etc.: Commercial Motor Vehicle Operator Safety Training Grant Opportunity, 75804-75805 E6-21458 FTC Federal Trade Commission NOTICES Agency information collection activities; proposals, submissions, and approvals, 75754-75755 E6-21514 Prohibited trade practices:
Johnson & Johnson and Pfizer Inc., 75756-75759 E6-21519 Food Food and Drug Administration NOTICES Agency information collection activities; proposals, submissions, and approvals, 75760-75764 E6-21472 E6-21486 Food Food Safety and Inspection Service NOTICES Meetings: Codex Alimentarius Commission— Fats and Oils Codex Committee, 75708-75709 E6-21371 Health Health and Human Services Department See Centers for Disease Control and Prevention See Food and Drug Administration Homeland Homeland Security Department See Coast Guard See National Communications System Interior Interior Department See Land Management Bureau See National Park Service See Reclamation Bureau International International Trade Administration NOTICES Antidumping:
Cut-to-length carbon steel plate from— China, 75710-75711 E6-21521 Steel concrete reinforcing bars from— Turkey, 75711-75712 E6-21520 Antidumping and countervailing duties: Administrative review requests; correction, 75709-75710 E6-21510 Justice Justice Department See Justice Programs Office Justice Justice Programs Office NOTICES Agency information collection activities; proposals, submissions, and approvals, 75770-75772 E6-21478 E6-21481 E6-21483 Land Land Management Bureau NOTICES Committees; establishment, renewal, termination, etc.:
Sonoran Desert National Monument Advisory Council, 75764-75765 E6-21482 Public land orders: Alaska, 75765-75766 E6-21467 Realty actions; sales, leases, etc.: Nevada, 75766-75768 E6-21469 National Communications National Communications System NOTICES Meetings: National Security Telecommunications Advisory Committee, 75764 06-9769 National Highway National Highway Traffic Safety Administration NOTICES Committees; establishment, renewal, termination, etc.: National Emergency Medical Services Advisory Council, 75805-75806 E6-21522 Meetings:
Human factors research necessary to support advanced vehicle safety technologies; forum; correction, 75806 06-9735 NOAA National Oceanic and Atmospheric Administration RULES Marine mammals: Commercial fishing authorizations— Atlantic Large Whale Take Reduction Plan, 75679-75683 06-9753 06-9754 PROPOSED RULES Fishery conservation and management: Atlantic coastal fisheries cooperative management— American lobster, 75705-75707 E6-21448 NOTICES Grants and cooperative agreements; availability, etc.:
National Estuarine Research Reserve System Social Science Fellowships, 75712-75714 E6-21450 Meetings: Atlantic shark identification and protected species safe handling, release, and identification; workshops, 75714-75716 06-9755 Climate Change Science Program Product Development Committee for Synthesis and Assessment Product 3.3, 75716-75717 06-9733 06-9734 Reports and guidance documents; availability, etc.: U.S. Climate Change Science Program Synthesis and Assessment Product Prospectus, 75717 E6-21446 National Park National Park Service NOTICES Environmental statements; availability, etc.:
Golden Gate National Recreation Area, CA, 75768-75769 06-9748 Nuclear Nuclear Regulatory Commission NOTICES Environmental statements; availability, etc.: Warner-Lambert, LLC, 75772-75774 E6-21463 Reports and guidance documents; availability, etc.: Inoperable control room air conditioning subsystems; model safety evaluation and model license amendment; comment request, 75774-75777 E6-21462 Personnel Personnel Management Office NOTICES Excepted service; positions placed or revoked, 75777-75779 E6-21541 Pipeline Pipeline and Hazardous Materials Safety Administration RULES Hazardous materials transportation:
Shippers; shipment and packaging requirements— Nonliquefied (permanent) compressed gases in specification cylinders; CFR correction, 75679 06-55531 Presidential Presidential Documents EXECUTIVE ORDERS Volunteers for Prosperity; amendment to Executive Order 13317 (EO 13418), 75647 06-9770 Privacy Privacy and Civil Liberties Oversight Board NOTICES Terrorism information and screening processes: Aviation and other security screening; watch list errors redress; comment request, 75752-75753 E6-21465 Reclamation Reclamation Bureau NOTICES Environmental statements; notice of intent:
New Melones Lake Project, CA; meetings, 75769-75770 E6-21471 Research Research and Innovative Technology Administration NOTICES Grants and cooperative agreements; availability, etc.: Intelligent Transportation Systems Operational Testing to Mitigate Congestion Program, 75806-75810 E6-21460 SEC Securities and Exchange Commission NOTICES Securities Exchange Act: Broker-dealers; financial statement requirements, 75779 E6-21475 Self-regulatory organizations; proposed rule changes:
Boston Stock Exchange, Inc., 75780-75781 E6-21477 Chicago Board Options Exchange, Inc., 75781-75788 E6-21480 National Association of Securities Dealers, Inc., 75788-75790 E6-21452 New York Stock Exchange LLC, 75790-75798 E6-21474 E6-21479 Philadelphia Stock Exchange, Inc., 75798-75800 E6-21449 Social Social Security Administration NOTICES Social security rulings and acquiescence rulings: Bowen v. Galbreath; rescission, 75800 E6-21484 State State Department RULES Visas; nonimigrant documentation:
Personal appearance waivers, 75662-75663 E6-21492 Surface Surface Transportation Board NOTICES Agency information collection activities; proposals, submissions, and approvals, 75811 E6-21473 Thrift Thrift Supervision Office NOTICES Agency information collection activities; proposals, submissions, and approvals, 75812-75813 E6-21464 Transportation Transportation Department See Federal Aviation Administration See Federal Motor Carrier Safety Administration See National Highway Traffic Safety Administration See Pipeline and Hazardous Materials Safety Administration See Research and Innovative Technology Administration See Surface Transportation Board Treasury Treasury Department See Thrift Supervision Office NOTICES Agency information collection activities; proposals, submissions, and approvals, 75811-75812 E6-21504 Veterans Veterans Affairs Department RULES Adjudication; pensions, compensation, dependency, etc.:
Persian Gulf War veterans; compensation for disabilities resulting from undiagnosed illnesses; presumptive period extension, 75669-75672 E6-21531 Vocational rehabilitation and education: Montgomery GI Bill-Active Duty entitlement; transfer to dependents option, 75672-75679 E6-21525 Separate Parts In This Issue Part II Environmental Protection Agency, 75816-75845 E6-21285 Part III Education Department, 75848-75850 E6-21524 Reader Aids Consult the Reader Aids section at the end of this issue for phone numbers, online resources, finding aids, reminders, and notice of recently enacted public laws.
To subscribe to the Federal Register Table of Contents LISTSERV electronic mailing list, go to http://listserv.access.gpo.gov and select Online mailing list archives, FEDREGTOC-L, Join or leave the list (or change settings); then follow the instructions. 71 242 Monday, December 18, 2006 Rules and Regulations DEPARTMENT OF AGRICULTURE Animal and Plant Health Inspection Service 7 CFR Part 319 [Docket No. 03-086-3] RIN 0579-AC23 Importation of Fruits and Vegetables AGENCY: Animal and Plant Health Inspection Service, USDA.
ACTION: Final rule. SUMMARY: We are amending the regulations to list a number of fruits and vegetables from certain parts of the world as eligible, under specified conditions, for importation into the United States. Some of the fruits and vegetables are already eligible for importation under permit, but are not specifically listed in the regulations. All of the fruits and vegetables, as a condition of entry, will be inspected and subject to treatment at the port of first arrival as may be required by an inspector.
In addition, some of the fruits and vegetables will be required to meet other special conditions. In one case, we are adding a systems approach that will provide an alternative to methyl bromide fumigation. These actions will provide the United States with additional types and sources of fruits and vegetables while continuing to protect against the introduction of quarantine pests through imported fruits and vegetables. EFFECTIVE DATE: December 18, 2006. FOR FURTHER INFORMATION CONTACT:
Ms. Donna L. West, Senior Import Specialist, Commodity Import Analysis and Operations, PPQ, APHIS, 4700 River Road Unit 133, Riverdale, MD 20737-1231;
(301)734-8758. SUPPLEMENTARY INFORMATION: Background The regulations in “Subpart-Fruits and Vegetables” (7 CFR 319.56 through 319.56-8, referred to below as the regulations) prohibit or restrict the importation of fruits and vegetables into the United States from certain parts of the world to prevent the introduction and spread of plant pests that are new to or not widely distributed within the United States. On December 22, 2005, we published in the **Federal Register** (70 FR 75967-75981, Docket No. 03-086-1) a proposal 1 to amend the regulations by listing a number of fruits and vegetables from certain parts of the world as eligible, under specified conditions, for importation into the United States. We solicited comments on the proposed rule for 60 days ending on February 21, 2006. 1 To view the proposed rule and comments we received, go to *http://www.regulations.gov,* click on the “Advanced Search” tab, and select “Docket Search.” In the Docket ID field, enter APHIS-2005-0107, then click on “Submit.” Clicking on the Docket ID link in the search results page will produce a list of all documents in the docket. On March 3, 2006, we published in the **Federal Register** (71 FR 10924, Docket No. 03-086-2) a notice in which we reopened the comment period for our proposed rule until March 10, 2006. We received 11 comments by that date. The comments were from representatives of State and foreign governments, industry organizations, importers and exporters, distributors, farmers, and individuals. Seven of these commenters wrote to support the proposed provisions regarding citrus from New Zealand, and another commenter wrote to support the proposed provisions regarding the importation of tomatoes from Chile. The remaining commenters raised specific issues which are discussed below. General Comments In our proposal, we stated that citrus fruit from the Bahamas would be allowed importation into the United States provided that each shipment was accompanied by a phytosanitary certificate stating that the fruit originated from an area of the Bahamas that is free from citrus canker disease, *Xanthomonas citri* (Hasse) Dowson. We also stated that the island of Abaco is the only island in the Bahamas where citrus canker is known to exist. One commenter stated that the existence of citrus canker should be based on periodic and systematic surveys and the importation of citrus fruit from the Bahamas ultimately should meet the same standards developed by the U.S. Department of Agriculture for the movement of domestic fruit from Florida. The Bahamas is currently conducting ongoing surveillance for citrus canker and there have been no other reports of the disease. With regard to requiring Bahamian citrus to meet the same standards as domestic fruit moved from Florida, we presume the commenter is referring to the restrictions on the interstate movement of citrus from areas quarantined for citrus canker. The current domestic citrus canker regulations in 7 CFR part 301 allow fruit from citrus canker quarantined areas in Florida to move interstate provided they are not destined for a commercial citrus-producing area. This rule will allow citrus from the Bahamas to enter the United States only if it is grown in an area where citrus canker does not exist. Under those circumstances, we believe it is unnecessary to limit the movement of Bahamian citrus fruit to non-citrus-producing States. In our proposal, we proposed to amend § 319.56-2t by removing the common names provided for *Cichorium* spp. articles ( *e.g.* , endive, chicory, and radicchio) from several Central and South American countries and replacing those common name entries with the more general term “cichorium.” This was proposed in order to make our regulations more clear and consistent and to allow additional varieties of *Cichorium* entry from those countries. In our proposed regulatory text, we listed leaves, stems, and roots as the enterable plant parts for cichorium from the listed Central and South American countries. One commenter stated that chicory root poses different pest problems than stems and leaves and should be addressed separately. As stated in the proposed rule, we prepared a pest risk assessment which examined the risks posed by roots, stems, and leaves of all *Cichorium* spp. from Central America and South America and found that no pests would follow the pathway. Therefore, we believe that the general requirements listed in § 319.56-6 are adequate for roots, stems, and leaves of *Cichorium* spp. We proposed to list eggplant from Belize, Costa Rica, and Honduras in § 319.56-2t as eligible for importation into the United States, but only in commercial shipments. One commenter stated that the distinction we drew between commercial and noncommercial shipments is not clear and that the distinguishing characteristics mentioned in the proposed rule ( *i.e.* , quantity of product, type of packaging, identification of grower and packinghouse, and consigning documents) are not enough to discourage determined shippers of substandard products. The commenter was concerned that distinguishing between commercial and noncommercial shipments would not offer any broad ranging pest protection to the United States. In addition to the distinction that we drew between noncommercial and commercial shipments in the proposed rule, noncommercial shipments can also refer to articles carried in passenger baggage, while commercial shipments refer to commodities that are imported under the condition that specific phytosanitary measures were applied. We continue to believe, based on the considerations discussed in the proposed rule, that noncommercial shipments pose a greater risk of pest introduction because they were not subject to the same mitigation measures as commercial shipments and that the criteria we apply in distinguishing between commercial and noncommercial shipments are effective. One commenter was concerned that allowing pineapples and apples from South Africa to be imported without treatment into the United States could result in the introduction of the oriental red mite ( *Eutetranychus orientalis* ). The commenter stated that oriental red mite occurs in South Africa and is a serious pest on more than 180 plants, both crops and ornamentals, many of which are grown in Florida. While oriental red mite occurs in South Africa, our research indicates that neither pineapples nor apples are a preferred host of that pest. If the commenter has additional research that is contrary to this assertion, we invite him to submit it. Further, pineapples and apples have both been authorized for importation into the United States from South Africa for several years, so they were not being proposed for entry for the first time. With regard to pineapples, the regulations have indicated that pineapples from South Africa are approved for entry into all States, but our risk analysis only evaluated the risks of allowing pineapple entry into the continental United States. As explained in our proposal, we intended to correct that oversight by amending § 319.56-2t to limit their distribution to the continental United States. With regard to apples, we have been allowing apples from South Africa entry under permit with a prescribed treatment, and we were simply proposing to add them to § 319.56-2x to improve the transparency of our regulations. Leeks From Canada One commenter stated that the proposed import restrictions for leeks from Canada should apply only to Quebec and Ontario, because they are the only two Provinces where the leek moth is known to exist. We would be willing to consider limiting the applicability of our import restrictions if the Canadian Food Inspection Agency submits to APHIS, field surveys or other documentation that demonstrates that Quebec and Ontario are the only areas within Canada where the leek moth exists and describes the measures that are being used to prevent the spread of the pest within Canada. One commenter stated that ornamental *Allium* represent a negligible host for the leek moth and should not be subject to the proposed mitigation measures. Ornamental *Allium* products are not covered under the fruits and vegetables regulations and therefore would not be subject to the mitigation measures in this rule. One commenter stated that some *Allium* products are being produced in Mexico, imported into Canada, and then re-exported to the United States. The commenter stated that those products of non-Canadian origin should not be impacted by the new regulations. It would be difficult to determine if a commodity had originated in Mexico if it is re-exported from Canada because it would be unlikely that the original packaging would be preserved. Further, it would be difficult to ensure and verify that there was no commingling between *Allium* spp. of Canadian and Mexican origin. If the packaging of *Allium* products from Mexico (or another country eligible to export such products to the United States) remains intact and the shipment is accompanied by a re-export certificate, then we would not require a phytosanitary certificate for the shipment. Under any other circumstances, *Allium* spp. whole plants or above ground parts imported in the United States from Canada will be subject to the restrictions set forth in this final rule. One commenter stated that the proposed mitigation measures for the leek moth should not apply to vacuum-packed *Allium* spp. because vacuum packing is a mitigation measure itself. The commenter did not provide, nor do we have, any research regarding the efficacy of vacuum packing as a mitigation measure for leek moth. Therefore, we will not add an exemption for vacuum-packed *Allium* spp. in this final rule. We proposed to amend § 319.56-2t allow grapes from Argentina to be imported into the United States if they are grown in a fruit-fly free area. For grapes that are grown outside a fruit-fly free area, we also proposed to amend § 319.56-2x to add grapes from Argentina to the list of fruits and vegetables that may be imported into the United States provided that they are treated in accordance with 7 CFR part 305. The regulations in part 305 prescribe cold treatment for fruit flies and methyl bromide for other pests of grapes from Argentina. The regulations in part 305 also provide that irradiation may be substituted for other approved treatments for any of the pests listed in § 305.31(a). So, while part 305 does allow irradiation to be substituted for the cold treatment and fumigation prescribed for grapes from Argentina, one commenter appeared to believe that irradiation was the sole treatment we were prescribing, which is not the case, and presented several questions about irradiation. While we believe it would be unlikely that irradiation would be used for grapes from Argentina, a summary of the commenter's questions and our responses are presented below. The commenter asked specific questions about research on how the quality of grapes was affected by irradiation and whether or not such research has been conducted over a time period that approximates shipping time to match what the end consumer would find in stores. Those questions are commercial considerations and are not relevant to the regulatory process. As cautioned in § 305.31(n) of the regulations, irradiation is approved to assure quarantine security against listed pests, but the facility operator and shipper are responsible for determination of tolerance. The commenter also asked about whether we have conducted any research on the efficacy of irradiation on table grapes. The required irradiation doses are specific to plant pests, rather than the commodities they are associated with. Specific characteristics of the fruits or vegetables being treated, which may need to be considered in developing other phytosanitary treatments, are irrelevant to the effectiveness of irradiation as long as the required minimum dose is absorbed. The commenter also asked if there has been any work done to determine the cumulative risk factors of allowing fruit and vegetables from multiple countries into the United States under various protocols and if so, what is the risk. We receive requests to authorize the importation of specific fruits or vegetables from specific countries, so it is in that context ( *i.e.* , case-by-case, not cumulative) that we evaluate risks and make decisions. The commenter asked if irradiation would take place pre-shipment or post, under what conditions, and if USDA would be approving irradiation facilities and inspecting the fruit. As provided in § 305.31, irradiation may take place either in the United States or outside of the United States prior to shipment. In either case, the operator of an irradiation facility must sign a compliance agreement with the Administrator and all irradiation facilities must be certified by the Administrator. When the treatment occurs outside the United States, the plant protection organization of the country where irradiation is to take place must enter into a facility preclearance workplan and a framework equivalency work plan with APHIS. The equivalency workplan is a document in which both APHIS and the foreign plant protection organizations specify the following information for their respective countries: • Citations for any requirements that apply to the importation of irradiated articles; • The type and amount of inspection, monitoring, or other activities that will be required in connection with allowing the importation of irradiated articles into that country; and • Any other conditions that must be met to allow the importation of irradiated articles into that country. The commenter asked what level of inspection would take place. There is no pre-set level of inspection for grapes or any other article. The level of inspection applied will vary from commodity to commodity and shipment to shipment. Inspectors take into account factors such as pest conditions in the exporting region, the types of pests and past interceptions associated with the article, whether and what type of treatment has been applied, the type of packaging (bulk or loose), the bill of lading and number of containers by each shipper, and specific targeting activities based on continuing analysis of pest conditions worldwide. The commenter asked if fruit flies do not die under irradiation but are rendered sterile, what is the protocol for determining whether the irradiation has been effective pre-shipment. Irradiation is considered effective if flies are killed or if they are rendered unable to reproduce or emerge from the host as an adult. Based on research conducted by the USDA's Agricultural Research Service (ARS), we have determined the necessary irradiation doses, which vary from pest to pest, to achieve that result. We will ensure that the commodity received the prescribed dose through dosimetry systems at the facility and certification of the treatment. Therefore, for the reasons given in the proposed rule and in this document, we are adopting the proposed rule as a final rule, without change. Effective Date This is a substantive rule that relieves restrictions and, pursuant to the provisions of 5 U.S.C. 553, may be made effective less than 30 days after publication in the **Federal Register** . This rule relieves restrictions on the importation of certain fruits and vegetables from certain countries while continuing to protect against the introduction of plant pests into the United States. Immediate implementation of this rule is necessary to provide relief to those persons who are adversely affected by restrictions we no longer find warranted. Making this rule effective immediately will allow interested producers, importers, shippers, and others to benefit immediately from the relieved restrictions. Therefore, the Administrator of the Animal and Plant Health Inspection Service has determined that this rule should be effective upon publication in the **Federal Register** . Executive Order 12866 and Regulatory Flexibility Act This rule has been reviewed under Executive Order 12866. The rule has been determined to be not significant for the purposes of Executive Order 12866 and, therefore, has not been reviewed by the Office of Management and Budget. In accordance with 5 U.S.C. 604, we have performed a final regulatory flexibility analysis, which is set out below, regarding the economic effects of this rule on small entities. Under the Plant Protection Act (7 U.S.C. 7701 *et seq.* ), the Secretary of Agriculture is authorized to regulate the importation of plants, plant products, and other articles to prevent the introduction of plant pests into the United States or the dissemination of plant pests within the United States. We are amending the regulations to list a number of fruits and vegetables from certain parts of the world as eligible, under specified conditions, for importation into the United States. Many of these fruits and vegetables are already being imported under permit, but are not specifically listed in the regulations. All of the fruits and vegetables, as a condition of entry, will be inspected and subject to treatment at the port of first arrival as may be required by an inspector. In addition, we will require that some of the fruits and vegetables be treated or meet other special conditions. We are also eliminating or modifying existing treatment requirements for specified commodities and making other miscellaneous changes. These actions will improve the transparency of our regulations while continuing to protect against the introduction of quarantine pests through imported fruits and vegetables. Impact on Small Entities The Regulatory Flexibility Act requires agencies to consider the economic impact of their regulations on small entities and to use flexibility to provide regulatory relief when regulations create economic disparities between differently sized entities. Data on the number and size of U.S. producers of the various commodities addressed in this rule are not available. However, since most fruit and vegetable farms are small by Small Business Administration standards, it is likely that the majority of U.S. farms producing the commodities listed below are small entities. As previously stated, many of the commodities listed in this document may currently enter the United States under permit. Therefore, we do not expect the amount of many commodities submitted for importation to increase beyond current levels. Additionally, in many cases, importation of certain commodities is necessary given that the commodities are not grown extensively in the United States (e.g., chicory, kiwis, and mangoes). In other instances, importation augments domestic supplies that are not sufficient to meet consumer demand ( *e.g.* , apples, garlic, and onions). Grapes and Cichorium From Argentina Grapes from Argentina are already admissible under permit into the United States. The United States imports an average of 490,000 tons of grapes (7 percent of its domestic supply) per year to satisfy its domestic demand for consumption. 2 However, less than 1 percent of these imports originates in Argentina. The growing season for grapes in Argentina is opposite of that in the United States, thereby complementing rather than competing with U.S. grape production. Therefore, even if we assume that Argentina greatly increases its exports of grapes to the United States, it is more likely to displace other countries' share of U.S. imports than to affect the level of U.S. consumption of domestic grapes. The economic impact on the level of U.S. grape consumption and production resulting from this change is expected to be small. 2 FAOSTAT for production data. USDA/FAS Global Agricultural Trade System using data from the U.N. Statistical Office. *Trade Data:* Harmonized Tariff Schedule for trade data. With respect to cichorium, no official production data are available in either the United States or Argentina. Therefore, we assume that both the United States and Argentina are small commercial producers of cichorium. Between 2000 and 2003, U.S. imports of fresh cichorium averaged 3.8 thousand tons of a non-witloof variety and 2.5 thousand tons of a witloof variety; none of these imports originated in Argentina. 3 Between 2000 and 2003, Argentina's exports of cichorium to the world as a whole averaged 7 metric tons annually. Even if all of these exports were directed to the United States, they would only represent 0.11 percent of U.S. demand for imported cichorium. The economic impact resulting from this change is not expected to be substantial. 3 FAOSTAT for production data. USDA/FAS Global Agricultural Trade System using data from the U.N. Statistical Office. *Trade Data:* Harmonized Tariff Schedule (HS: 070529 non-witloof variety of chicory, and 070521 fresh chicory of witloof variety). Allium spp. From Canada Alliaceous vegetables (i.e., onions, shallots, leeks, and garlic) from Canada can be imported into the United States under the general permit in § 319.56-2(c) for articles from Canada. Between 2000 and 2003, Canada supplied 19 percent of annual U.S. imports of shallots and onions, 3 percent of U.S. imports of leeks, and 0.62 percent of U.S. imports of garlic on average. 4 U.S. imports amount to less than 10 percent of U.S. production of shallots and onions and less than 15 percent of U.S. garlic production. This rule will add, as a condition of entry, that each shipment of alliaceous vegetables consisting of the whole plant or above ground parts be accompanied by a phytosanitary certificate containing an additional declaration from the Canadian NPPO that the shipment is free of *Acrolepiopsis assectella* . We do not expect exporters to incur any additional expenses as a result of this requirement. Therefore, U.S. importers/consumers of these commodities will not see an increase in the cost of alliaceous vegetables from Canada. Even if exporters of alliaceous vegetables from Canada were to experience an increase in exporting cost because of the phytosanitary requirement and pass this on to U.S. importers/consumers, the benefits of keeping the leek moth out of the United States would outweigh such an increase in cost. As a result, the economic impact on the U.S. level of demand for consumption and/or production of alliaceous vegetables is not expected to be significant. 4 FAOSTAT for production data. USDA/FAS Global Agricultural Trade System using data from the U.N. Statistical Office. *Trade Data:* Harmonized Tariff Schedule for trade data. Cichorium, Lemons, and Tomatoes (Under a Systems Approach) From Chile Lemons from Chile are already being imported into the United States under permit; between 2000 and 2003, 4 percent of annual U.S. imports of lemons and limes originated in Chile. 5 We have no reason to expect that listing lemons from Chile in the regulations will result in an increase in exports. Even if we assume that Chile increases its exports of lemons into the United States, it is more likely to displace other countries' share for U.S. imports of them than to affect the level of U.S. consumption of domestic lemons. The economic impact resulting from this change is not expected to be substantial. 5 Source of Production Data: *http://apps.fao.org/faostat/agriculture/* . Production data for lemons include limes. Source of Trade Data: USDA/FAS Global Agricultural Trade System using data from the U.N. Statistical Office. Harmonized Tariff Schedule 6 digits. Tomatoes from Chile are already being imported into the United States if fumigated with methyl bromide. This rule will provide tomato producers with an alternative to methyl bromide fumigation by providing for a systems approach. APHIS continues to strive to meet the objectives of the Montreal Protocol by providing alternatives to methyl bromide fumigation treatment for fruit and vegetable producers. As registered producers in Chile already comply with most of the production practices that will be required under the systems approach, the requirements will not likely result in any additional economic burden to tomato producers. In addition, registered producers who remain in compliance with the program throughout the shipping season will save money on costly fumigation treatments. Between 2000 and 2003, 0.02 percent of U.S. annual imports of tomatoes originated in Chile. 6 The total amount of tomatoes from Chile exported to the world between 2000 and 2003 (all varieties) was on average only 2,209 tons or 0.38 percent of U.S. imports. This is Chile's maximum capacity of tomato exports and is not expected to increase in the short term. This small amount of imports, whether grown under the systems approach or treated with methyl bromide, is unlikely to affect the level of U.S. consumption of domestic tomatoes. The economic impact resulting from this change is not expected to be substantial. 6 Source of Production Data: *http://apps.fao.org/faostat/agriculture/* . Source of Trade Data: USDA/FAS Global Agricultural Trade System using data from the U.N. Statistical Office. Harmonized Tariff Schedule 6 digits. With respect to cichorium, there are no available data on U.S. or Chilean production. The United States imports approximately 6,000 tons of cichorium per year. Cichorium is already being imported from Chile under permit, and Chile is a major source of U.S. cichorium imports, accounting for approximately 32 percent on average. Because the United States is such a small producer of cichorium, it is unlikely that this rule will significantly alter this situation. In fact, the addition of cichorium into the U.S. market from other countries such as Chile will be a benefit to U.S. consumers. The economic impact on the level of U.S. consumption of cichorium, lemons, and tomatoes as a result of these changes is expected to be small. New Zealand Spinach From Israel According to USDA's Foreign Agricultural Service (FAS), in 2000, the United States imported 1.5 metric tons of New Zealand spinach from Israel (0.02 percent of U.S. imports of New Zealand spinach in 2000). However, APHIS' Plant Protection and Quarantine
(PPQ)program has no record of these imports and New Zealand spinach from Israel has not been admissible into the United States. 7 Israel is a small producer of spinach (all varieties), producing, on average, an amount equivalent to a quarter of total U.S. spinach imports annually. The amount imported in 2000 corresponds to 50 percent of Israel's exports. Even if we assume that Israel will double its exports into the United States, it could not supply more than 0.04 percent of U.S. demand for imports of spinach. The economic effects of this change on the level of U.S. consumption and/or production of spinach are not expected to be significant. 7 The United States imported spinach from Israel for the first time in year 2000, but did not import any Israeli spinach in 2001, 2002, or 2003. Source: U.N. Trade Statistics, FAS Global Agricultural Trade System using data from the U.N. Statistical Office. Trade Data: Harmonized Tariff Schedule (HS 6 Digit— 070970) spinach fresh or chilled. Source of production data: *http://apps.fao.org/faostat/agriculture/* . Kiwi From Italy Kiwi fruits from Italy can already be imported into the United States under permit. The United States is a small kiwi producer that imports almost twice as much as it produces to satisfy its domestic demand. 8 Italy supplies approximately 16 percent of U.S. imported kiwi fruits, and it is unlikely that this will change as a result of this rule. Even if Italy increased its exports of kiwi to the United States, it would most likely displace another countries' share because the United States is such a small producer of kiwi. The economic impact resulting from this change on the level of U.S. consumption is not expected to be substantial. 8 Source: U.N. Trade Statistics, FAS Global Agricultural Trade System using data from the U.N. Statistical Office. Citrus From New Zealand Although FAS statistics indicate that between 2001 and 2003, New Zealand supplied, on average, 0.006 percent of U.S. imports of oranges and lemons, 9 APHIS' PPQ has no records of these imports and citrus fruit from New Zealand has not been admissible into the United States. New Zealand is a small producer/exporter of citrus, and the country's exports were equivalent to less than 1 percent of U.S. imports of citrus on average. Its total citrus production is less than 8 percent of U.S. imports of citrus as a whole. Because the United States will import such a small percentage of New Zealand citrus, even if we assume that New Zealand greatly increases its exports to the United States, it is unlikely to have a substantial economic impact. 9 Total citrus trade data here includes the following categories of fruits: Oranges (HS-6: 080510), mandarins (HS-6: 080520), lemons (HS-6: 080530), and grapefruits (HS-6: 080540). Mangoes From the Philippines The United States currently imports a very small amount of mangoes (18 tons per year on average) from the Philippines. 10 Because the Philippines is a significant producer of mangoes, allowing mangoes to be imported into Hawaii and Guam from additional production areas in the Philippines could result in mango exports from the Philippines capturing a larger share of those two markets. U.S. mango production is less than 1 percent of the amount the United States needs to satisfy its domestic consumption. Between 2001 and 2002, the United States imported approximately 100 times the amount of its domestic mango production, with most imports coming from Mexico. Thus, allowing imports from more islands in the Philippines would be a benefit to U.S. consumers in Guam and Hawaii. The economic impact of this change on the level of U.S. consumption or its domestic production of mangoes is not expected to be significant. 10 Trade Data: Harmonized Tariff Schedule (HS 6 Digit). Source of production data: *http://apps.fao.org/faostat/agriculture/* . Apples and Grapes From South Africa Apples and grapes from South Africa can already be imported into the United States under permit. South Africa supplies 3 percent of U.S. imports of apples and a little less than 2 percent of U.S. imports of grapes. 11 With respect to grapes, South African exports alone cannot satisfy U.S. demand for domestic consumption. Even if South Africa directs all of its exports of grapes (880,590 tons) into the United States, it would be only enough to supply 22 percent of U.S. annual demand. The economic impact of this change on the level of U.S. consumption and/or domestic production of apples and/or grapes is not expected to be significant. 11 Source: U.N. Trade Statistics, FAS Global Agricultural Trade System using data from the U.N. Statistical Office. Trade Data: Harmonized Tariff Schedule (HS 6 Digit). Source of production data: *http://apps.fao.org/faostat/agriculture/* . Cichorium From Central and South America There are no official data available for cichorium, either on production or trade, in the following countries: Bolivia, Brazil, Colombia, Costa Rica, Ecuador, El Salvador, French Guiana, Guyana, Honduras, Nicaragua, Panama, Paraguay, Peru, Suriname, Uruguay, and Venezuela. Thus, we assume that these countries are very small producers of cichorium and that they are either not currently exporting cichorium or are exporting only small amounts. For these reasons, we cannot determine what the economic effects of this rule will be, but they are not expected to be significant. Summary U.S. importation of the commodities included in this rule is not expected to have a significant economic impact on U.S. small entities. The different production season of the Southern Hemisphere, where many of the fruits and vegetables included in this rule are produced, helps maintain a steady supply of fresh produce, complementing rather than competing with U.S. production of these commodities. For those commodities that are not principal U.S. products, the additional supply will help satisfy growing demand for these specialty crops. For these reasons, we believe that any costs due to increased competition that may be incurred by domestic entities will be minimal, and that those minimal costs will be outweighed by the benefits associated with this rule, which include improving the transparency of our regulations and providing the United States with additional types and sources of fruits and vegetables while continuing to protect against the introduction of quarantine pests through imported fruits and vegetables. This rule contains various recordkeeping requirements, which were described in our proposed rule, and which have been approved by the Office of Management and Budget (see “Paperwork Reduction Act” below). Executive Order 12372 This program/activity is listed in the Catalog of Federal Domestic Assistance under No. 10.025 and is subject to Executive Order 12372, which requires intergovernmental consultation with State and local officials. (See 7 CFR part 3015, subpart V.) Executive Order 12988 This final rule allows certain fruits and vegetables to be imported into the United States from certain parts of the world. State and local laws and regulations regarding the importation of fruits and vegetables under this rule will be preempted while the fruit is in foreign commerce. Fresh fruits and vegetables are generally imported for immediate distribution and sale to the consuming public, and remain in foreign commerce until sold to the ultimate consumer. The question of when foreign commerce ceases in other cases must be addressed on a case-by-case basis. No retroactive effect will be given to this rule, and this rule will not require administrative proceedings before parties may file suit in court challenging this rule. Paperwork Reduction Act In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 *et seq.* ), the information collection or recordkeeping requirements included in this rule have been approved by the Office of Management and Budget
(OMB)under OMB control number 0579-0280. E-Government Act Compliance The Animal and Plant Health Inspection Service is committed to compliance with the E-Government Act to promote the use of the Internet and other information technologies, to provide increased opportunities for citizen access to Government information and services, and for other purposes. For information pertinent to E-Government Act compliance related to this rule, please contact Mrs. Celeste Sickles, APHIS' Information Collection Coordinator, at
(301)734-7477. List of Subjects in 7 CFR Part 319 Coffee, Cotton, Fruits, Imports, Logs, Nursery stock, Plant diseases and pests, Quarantine, Reporting and recordkeeping requirements, Rice, Vegetables. Accordingly, we are amending 7 CFR part 319 as follows: PART 319—FOREIGN QUARANTINE NOTICES 1. The authority citation for part 319 continues to read as follows: Authority: 7 U.S.C. 450, 7701-7772, and 7781-7786; 21 U.S.C. 136 and 136a; 7 CFR 2.22, 2.80, and 371.3. 2. Section 319.56-1 is amended by adding, in alphabetical order, a definition for *national plant protection organization (NPPO)* to read as follows: § 319.56-1 Definitions. *National plant protection organization (NPPO)* . Official service established by a government to discharge the functions specified by the International Plant Protection Convention. 3. In § 319.56-2, paragraph
(c)and the OMB citation at the end of the section are revised to read as follows: § 319.56-2 Restrictions on entry of fruits and vegetables.
(c)*General permit for fruits and vegetables grown in Canada.* Fruits and vegetables grown in Canada may be imported into the United States without restriction under this subpart; provided, that:
(1)Consignments of *Allium* spp. consisting of the whole plant or above ground parts must be accompanied by a phytosanitary certificate issued by the NPPO of Canada with an additional declaration stating that the articles are free from *Acrolepipsis assectella* (Zeller).
(2)Potatoes from Newfoundland and that portion of the Municipality of Central Saanich in the Province of British Columbia east of the West Saanich Road are prohibited importation into the United States in accordance with § 319.37-2 of this part. (Approved by the Office of Management and Budget under control numbers 0579-0049 and 0579-0280) 4. Section 319.56-2t is amended as follows: a. In the table in paragraph (a), by: i. Revising the following entries to read as set forth below: Under Belize, for rambutan; under Bermuda, for longan; under Costa Rica, for rambutan; under El Salvador, for loroco and rambutan; under Grenada, for litchi and rambutan; under Guatemala, for eggplant and rambutan; under Honduras, for rambutan; under Mexico, for banana and rambutan; under Nicaragua, for loroco and rambutan; under Panama, for eggplant and rambutan; under Peru, for Swiss chard; under Sierra Leone, for cassava; and under South Africa, for pineapple. ii. Removing the following entries: Under Argentina, for endive; under Bolivia, for Belgian endive; under Ecuador, for radicchio; under Honduras, for chicory; under Nicaragua, for radicchio; under Panama, for Belgian endive, chicory, and endive; under Peru, for radicchio; and under Republic of Korea, for chard. iii. Adding, in alphabetical order, the following entries to read as set forth below: Under Argentina, for cichorium and grape; under Belize, for cichorium and eggplant; under Bolivia, for cichorium; under Chile, for cichorium; under Colombia, for cichorium; under Costa Rica, for cichorium and eggplant; under Ecuador, for cichorium; under El Salvador, for cichorium; under French Guinea, for cichorium; under Guatemala, for cichorium; under Honduras, for cichorium and eggplant; under Israel, for New Zealand spinach; under New Zealand, for citrus; under Nicaragua, for cichorium; under Panama, for cichorium; under Peru, for cichorium; under Republic of Korea, for Swiss chard; and under Suriname, for cichorium. iv. Adding entries for Bahamas, Brazil, French Guiana, Guyana, Paraguay, Uruguay, and Venezuela to read as set forth below. b. In paragraph (b), by adding new paragraphs (b)(2)(v), (b)(5)(vi), (b)(5)(vii), and (b)(6)(v) to read as set forth below. c. By revising the OMB citation at the end of the section to read as set forth below. § 319.56-2t Administrative instructions: Conditions governing the entry of certain fruits and vegetables.
(a)* * * Country/locality Common name Botanical name Plant part(s) Additional restriction(s) (see paragraph
(b)of this section) Argentina * * * * * * * Cichorium *Cichorium* spp Leaves, stems, and roots * * * * * * * Grape *Vitis* spp Fruit (b)(1)(ii). * * * * * * * Bahamas Citrus *Citrus* spp Fruit (b)(5)(vi), (b)(6)(v). * * * * * * * Belize * * * * * * * Cichorium *Cichorium* spp Leaves, stems, and roots * * * * * * * Eggplant *Solanum melongena* Fruit (b)(3). * * * * * * * Rambutan *Nephelium lappaceum* Fruit or cluster (b)(2)(i), (b)(5)(iii). * * * * * * * Bermuda * * * * * * * Longan *Dimocarpus longan* Fruit or cluster * * * * * * * Bolivia Cichorium *Cichorium* spp Leaves, stems, and roots Brazil Cichorium *Cichorium* spp Leaves, stems, and roots Chile * * * * * * * Cichorium *Cichorium* spp Leaves, stems, and roots * * * * * * * Colombia Cichorium *Cichorium* spp Leaves, stems, and roots * * * * * * * Costa Rica * * * * * * * Cichorium *Cichorium* spp Leaves, stems, and roots * * * * * * * Eggplant *Solanum melongena* Fruit (b)(3). * * * * * * * Rambutan *Nephelium lappaceum* Fruit or cluster (b)(2)(i), (b)(5)(iii). * * * * * * * Ecuador * * * * * * * Cichorium *Cichorium* spp Leaves, stems, and roots * * * * * * * El Salvador * * * * * * * Cichorium *Cichorium* spp Leaves, stems, and roots * * * * * * * Loroco *Fernaldia* spp Flower and leaf * * * * * * * Rambutan *Nephelium lappaceum* Fruit or clusters (b)(2)(i), (b)(5)(iii). * * * * * * * French Guiana Cichorium *Cichorium* spp Leaves, stems, and roots * * * * * * * Grenada * * * * * * * Litchi *Litchi chinensis* Fruit or cluster * * * * * * * Rambutan *Nephelium lappaceum* Fruit or cluster * * * * * * * Guatemala * * * * * * * Cichorium *Cichorium* spp Leaves, stems, and roots * * * * * * * Eggplant *Solanum melongena* Fruit (b)(3). * * * * * * * Rambutan *Nephelium lappaceum* Fruit or cluster (b)(2)(i), (b)(5)(iii). * * * * * * * Guyana Cichorium *Cichorium* spp Leaves, stems, and roots * * * * * * * Honduras * * * * * * * Cichorium *Cichorium* spp Leaf, stems, and roots * * * * * * * Eggplant *Solanum melongena* Fruit (b)(3). * * * * * * * Rambutan *Nephelium lappaceum* Fruit or cluster (b)(2)(i), (b)(5)(iii). * * * * * * * Israel * * * * * * * New Zealand spinach *Tetragonia tetragonioides* Leaves. * * * * * * * Mexico * * * * * * * Banana *Musa* spp Flower and leaf * * * * * * * Rambutan *Nephelium lappaceum* Fruit or cluster (b)(2)(i), (b)(5)(iii). * * * * * * * New Zealand * * * * * * * Citrus *Citrus* spp Fruit (b)(3), (b)(5)(vii). * * * * * * * Nicaragua Cichorium *Cichorium* spp Leaves, stems, and roots * * * * * * * Loroco *Fernaldia* spp Flower and leaf * * * * * * * Rambutan *Nephelium lappaceum* Fruit or cluster (b)(2)(i), (b)(5)(iii). * * * * * * * Panama * * * * * * * Cichorium *Cichorium* spp Leaves, stems, and roots Eggplant *Solanum melongena* Fruit (b)(3). * * * * * * * Rambutan *Nephelium lappaceum* Fruit or cluster (b)(2)(i), (b)(5)(iii). * * * * * * * Paraguay Cichorium *Cichorium* spp Leaves, stems, and roots Peru * * * * * * * Cichorium *Cichorium* spp Leaves, stems, and roots * * * * * * * Swiss chard *Beta vulgaris* subsp. *cicla* Leaf and stem * * * * * * * Republic of Korea * * * * * * * Swiss chard *Beta vulgaris* subsp. *cicla* Leaf and stem * * * * * * * Sierra Leone Cassava *Manihot esculenta* Leaf and root * * * * * * * South Africa * * * * * * * Pineapple *Ananas* spp Fruit (b)(2)(v). * * * * * * * Suriname * * * * * * * Cichorium *Cichorium* spp Leaves, stems, and roots * * * * * * * Uruguay Cichorium *Cichorium* spp Leaves, stems, and roots Venezuela Cichorium *Cichorium* spp Leaves, stems, and roots * * * * * * *
(b)* * *
(2)* * *
(v)Prohibited entry into Puerto Rico, Virgin Islands, Northern Mariana Islands, Hawaii, and Guam. Cartons in which commodity is packed must be stamped “For distribution in the continental United States only.”
(5)* * *
(vi)Must be accompanied by a phytosanitary certificate issued by the NPPO of the country of origin with an additional declaration stating that the fruit is from an area where citrus canker ( *Xanthomonas citri* (Hasse) Dowson) is not known to occur.
(vii)Must be accompanied by a phytosanitary certificate issued by the NPPO of the country of origin and with an additional declaration stating that the fruit is free from *Cnephasia jactatana* , *Coscinoptycha improbana* , *Ctenopseustis obliquana* , *Epiphyas postvittana* , *Pezothrips kellyanus* , and *Planotortrix excessana* ; must undergo a port of entry inspection with a biometric sampling of 100 percent of 30 boxes selected randomly from each shipment; and the randomly selected boxes must be examined for hitchhiking pests.
(6)* * *
(v)Grapefruit ( *Citrus paradisi* ), lemon ( *Citrus limon* ), orange ( *Citrus sinensis* ), and tangelo ( *Citrus reticulata* ) only. (Approved by the Office of Management and Budget under control numbers 0579-0049, 0579-0236, 0579-0264, and 0579-0280) 5. In § 319.56-2x, the table in paragraph
(a)is amended as follows: a. By revising the following entries to read as set forth below: Under China, for litchi and longan; under India, for litchi; under Israel, for litchi; and under Taiwan, for litchi. b. By removing, under El Salvador, the entry for garden bean and by adding, in alphabetical order, the following entries to read as set forth below: Under Argentina, for grape; under Chile, for lemons; and under El Salvador, for green bean. c. By adding, in alphabetical order, entries for Italy and the Republic of South Africa to read as set forth below. § 319.56-2x Administrative instructions; conditions governing the entry of certain fruits and vegetables for which treatment is required.
(a)* * * Country/locality Common name Botanical name Plant part(s) Argentina * * * * * * * Grape *Vitis* spp Fruit. (Treatment for *Anastrepha* spp. fruit flies and Medfly not required if fruit is grown in a fruit fly-free area (see § 319.56-2(j)). * * * * * * * Chile Lemon Citrus limon Fruit. * * * * * * * China Litchi *Litchi chinensis* Fruit or cluster. (Prohibited entry into Florida due to litchi rust mite. Cartons in which litchi are packed must be stamped “Not for importation into or distribution in FL.”) Longan *Dimocarpus longan* Fruit or cluster * * * * * * * El Salvador Green bean *Phaseolus vulgaris* Pod or shelled. * * * * * * * India Litchi *Litchi chinensis* Fruit or cluster (Prohibited entry into Florida due to litchi rust mite. Cartons in which litchi are packed must be stamped “Not for importation into or distribution in FL.”) Israel * * * * * * * Litchi *Litchi chinensis* Fruit or cluster. (Prohibited entry into Florida due to litchi rust mite. Cartons in which litchi are packed must be stamped “Not for importation into or distribution in FL.”) * * * * * * * Italy Kiwi *Actinidia deliciosa* Fruit. * * * * * * * Republic of South Africa Apple *Malus domestica* Fruit. Grape *Vitis* spp Fruit. * * * * * * * Taiwan * * * * * * * Litchi *Litchi chinensis* Fruit or cluster. (Prohibited entry into Florida due to litchi rust mite. Cartons in which litchi are packed must be stamped “Not for importation into or distribution in FL.”) * * * * * * * 6. Section 319.56-2dd is amended as follows: a. By revising the introductory text of paragraph
(d)to read as set forth below. b. By redesignating paragraphs (d)(1), (d)(2), and (d)(3) as paragraphs (d)(1)(i), (d)(1)(ii), and (d)(1)(iii), respectively, and by adding new introductory text of paragraph (d)(1) to read as set forth below. c. In newly redesignated paragraph (d)(1)(iii), in the first sentence, by adding the words “with treatment in accordance with this paragraph (d)(1)” after the word “Chile”. d. By adding a new paragraph (d)(2) to read as set forth below. e. By revising the OMB citation at the end of the section to read as set forth below. § 319.56-2dd Administrative instructions: conditions governing the entry of tomatoes.
(d)*Tomatoes from Chile.* Tomatoes (fruit) ( *Lycopersicon esculentum* ) from Chile, whether green or at any stage of ripeness, may be imported into the United States with treatment in accordance with paragraph (d)(1) of this section or if produced in accordance with the systems approach described in paragraph (d)(2) of this section.
(1)*With treatment.* * * *
(2)*Systems approach.* The tomatoes may be imported without fumigation for *Tuta absoluta* , *Rhagoletis tomatis* , and Mediterranean fruit fly (Medfly, *Ceratitis capitata* ) if they meet the following conditions:
(i)The tomatoes must be grown in approved production sites that are registered with SAG. Initial approval of the production sites will be completed jointly by SAG and APHIS. SAG will visit and inspect the production sites monthly, starting 2 months before harvest and continue until the end of the shipping season. APHIS may monitor the production sites at any time during this period.
(ii)Tomato production sites must consist of pest-exclusionary greenhouses, which must have self-closing double doors and have all other openings and vents covered with 1.6 mm (or less) screening.
(iii)The tomatoes must originate from a Medfly free area (see § 319.56-2(j)) of Chile or an area where Medfly trapping occurs. Production sites in areas where Medfly is known to occur must contain traps for both Medfly and *Rhagoletis tomatis* in accordance with paragraphs (d)(2)(iii) and (d)(2)(iv) of this section. Production sites in all other areas do not require trapping for Medfly. The trapping protocol for the detection of Medfly in infested areas is as follows:
(A)McPhail traps with an approved protein bait must be used within registered greenhouses. Traps must be placed inside greenhouses at a density of 4 traps/10 ha, with a minimum of at least two traps per greenhouse.
(B)Medfly traps with trimedlure must be placed inside a buffer area 500 meters wide around the registered production site, at a density of 1 trap/10 ha and a minimum of 10 traps. These traps must be checked at least every 7 days. At least one of these traps must be near a greenhouse. Traps must be set for at least 2 months before export and trapping and continue to the end of the harvest season.
(C)Medfly prevalence levels in the surrounding areas must be 0.7 Medflies per trap per week or lower. If levels exceed this before harvest, the production site will be prohibited from shipping under the systems approach. If the levels exceed this after the 2 months prior to harvest, the production site would be prohibited from shipping under the systems approach until APHIS and the NPPO of Chile agree that the pest risk has been mitigated.
(iv)Registered production sites must contain traps for *Rhagoletis tomatis* in accordance with the following provisions:
(A)McPhail traps with an approved protein bait must be used within registered greenhouses. Traps must be placed inside greenhouses at a density of 4 traps/10 ha, with a minimum of at least two traps per greenhouse. Traps inside greenhouses will use the same bait for Medfly and *Rhagoletis tomatis* because the bait used for *R. tomatis* is sufficient for attracting both types of fruit fly within the confines of a greenhouse; therefore, it is unnecessary to repeat this trapping protocol in production sites in areas where Medfly is known to occur.
(B)McPhail traps with an approved protein bait must be placed inside a 500 meter buffer zone at a density of 1 trap/10 ha surrounding the production site. At least one of the traps must be near a greenhouse. Traps must be set for at least 2 months before export until the end of the harvest season and must be checked at least every 7 days. In areas where Medfly trapping is required, traps located outside of greenhouses must contain different baits for Medfly and *Rhagoletis tomatis* . There is only one approved bait for *R. tomatis* and the bait is not strong enough to lure Medfly when used outside greenhouses; therefore, separate traps must be used for each type of fruit fly present in the area surrounding the greenhouses.
(C)If within 30 days of harvest a single *Rhagoletis tomatis* is captured inside the greenhouse or in a consignment or if two *R. tomatis* are captured or detected in the buffer zone, shipments from the production site will be suspended until APHIS and SAG determine that risk mitigation is achieved.
(v)Registered production sites must conduct regular inspections for *Tuta absoluta* throughout the harvest season and find these areas free of *T. absoluta* evidence (e.g., eggs or larvae). If within 30 days of harvest, two *Tuta absoluta* are captured inside the greenhouse or a single *T. absoluta* is found inside the fruit or in a consignment, shipments from the production site would be suspended until APHIS and SAG determine that risk mitigation is achieved.
(vi)SAG will ensure that populations of *Liriomyza huidobrensis* inside greenhouses are well managed by doing inspections during the monthly visits specifically for *L. huidobrensis* mines in the leaves and for visible external pupae or adults. If *L. huidobrensis* is found to be generally infesting the production site, shipments from the production site would be suspended until APHIS and SAG agree that risk mitigation is achieved.
(vii)All traps must be placed at least 2 months prior to harvest and be maintained throughout the harvest season and be monitored and serviced weekly.
(viii)SAG must maintain records of trap placement, checking of traps, and of any *Rhagoletis tomatis* or *Tuta absoluta* captures for 1 year for APHIS review. SAG must maintain an APHIS approved quality control program to monitor or audit the trapping program. APHIS must be notified when a production site is removed from or added to the program.
(ix)The tomatoes must be packed within 24 hours of harvest in a pest-exclusionary packinghouse. The tomatoes must be safeguarded by a pest-proof screen or plastic tarpaulin while in transit to the packinghouse and while awaiting packing. Tomatoes must be packed in insect-proof cartons or containers or covered with insect-proof mesh or plastic tarpaulin for transit to the United States. These safeguards must remain intact until arrival in the United States.
(x)During the time the packinghouse is in use for exporting fruit to the United States, the packinghouse may only accept fruit from registered approved production sites.
(xi)SAG is responsible for export certification inspection and issuance of phytosanitary certificates. Each shipment of tomatoes must be accompanied by a phytosanitary certificate issued by SAG with an additional declaration, “These tomatoes were grown in an approved production site in Chile.” The shipping box must be labeled with the identity of the production site. (Approved by the Office of Management and Budget under control numbers 0579-0049, 0579-0131, 0579-0280, and 0579-0286) 7. Section 319.56-2ii is amended as follows: a. By revising paragraph
(a)to read as set forth below. b. In paragraph (d), by adding a new sentence at the end of the paragraph to read as set forth below. c. By revising paragraph
(e)to read as set forth below. d. By adding an OMB citation at the end of the section to read as set forth below. § 319.56-2ii Administrative instructions: conditions governing the entry of mangoes from the Philippines.
(a)Mangoes grown on the island of Guimaras, which the Administrator has determined meet the criteria set forth in § 319.56-2(e)(4) and § 319.56-2(f) with regard to the mango seed weevil ( *Sternochetus mangiferae* ), are eligible for importation into all areas of the United States. Mangoes from all other areas of the Philippines except Palawan are eligible for importation into Hawaii and Guam only. Mangoes from Palawan are not eligible for importation into the United States.
(d)* * * Shipments originating from approved areas other than Guimaras must be labeled “For distribution in Guam and Hawaii only.”
(e)*Phytosanitary certificate* . Mangoes originating from all approved areas must be accompanied by a phytosanitary certificate issued by the Republic of the Philippines Department of Agriculture that contains an additional declaration stating that the mangoes have been treated for fruit flies of the genus *Bactrocera* in accordance with paragraph
(b)of this section. Phytosanitary certificates accompanying shipments of mangoes originating from the island of Guimaras must also contain an additional declaration stating that the mangoes were grown on the island of Guimaras. (Approved by the Office of Management and Budget under control numbers 0579-0172 and 0579-0280) Done in Washington, DC, this 12th day of December 2006. Kevin Shea, Acting Administrator, Animal and Plant Health Inspection Service. [FR Doc. E6-21496 Filed 12-15-06; 8:45 am] BILLING CODE 3410-34-P FEDERAL DEPOSIT INSURANCE CORPORATION 12 CFR Part 313 RIN 3064-AD12 Procedures for Corporate Debt Collection AGENCY: Federal Deposit Insurance Corporation (FDIC). ACTION: Final rule. SUMMARY: The Federal Deposit Insurance Corporation
(FDIC)is amending 12 CFR part 313, Procedures for Corporate Debt Collection, to include delinquent criminal restitution debt within the debt covered by part 313. DATES: *Effective Date:* This rule is effective on December 18, 2006. FOR FURTHER INFORMATION CONTACT: Rex Taylor,
(703)562-2453, or Catherine A. Ribnick,
(202)898-3728, of the Legal Division, or Richard Romero,
(202)898-8652, of the Division of Resolutions and Receiverships. SUPPLEMENTARY INFORMATION: 1. Background The Debt Collection Improvement Act of 1996
(DCIA)requires federal agencies to collect debts owed to the United States in accordance with regulations that either adopt, or at least are consistent with, standards prescribed by the Department of Justice
(DOJ)and Department of the Treasury (Treasury). 31 U.S.C. 3711. These standards, known as the Federal Claims Collection Standards (FCCS), became effective on December 22, 2000. (see 31 CFR 900-904). The purpose of the DCIA is to enhance the efficiency and effectiveness of the federal government's efforts to collect debt owed to the United States. A principal feature of the DCIA was the creation of the Treasury Offset Program (TOP), a government-wide database of delinquent debtors that offsets (reduces) federal payments to recipients who also owe delinquent debt to the United States and that remits the offset amount to the creditor agency. The FDIC is the creditor agency for delinquent restitution debts owed to the FDIC. The recommended amendments do not affect the FDIC's existing authority under part 313 to collect certain debts owed to the FDIC in its corporate capacity. In 2002, the FDIC in compliance with the DCIA promulgated 12 CFR part 313 governing the collection of certain debt owed to the FDIC in its corporate capacity by federal employees, including FDIC employees, and certain third parties. Part 313 in its present form “applies only to [certain] debts owed to and payments made by the FDIC acting in its corporate capacity; that is, in connection with employee matters such as travel-related claims and erroneous overpayments, contracting activities involving corporate operations, debts related to requests to the FDIC for documents under the Freedom of Information Act
(FOIA)or where a request for an offset is received by the FDIC from another federal agency.” (See 12 CFR 313.1(c)). Part 313 also explicitly states that it “does not apply to debts owed to or payments made by the FDIC in connection with the FDIC's liquidation, supervision, enforcement, or insurance responsibilities.” (Id.) Under part 313, when the Director of the Division of Administration
(DOA)or the Director of the Division of Finance
(DOF)determines that it is appropriate to initiate procedures to collect corporate debt of the type authorized by part 313, the Director must conform to the procedural standards for collecting such debts set forth in part 313. These standards generally prescribe the following steps in the debt collection process: Prompt demand for payment of the debt; upon the debtor's demand for a final agency determination, verification of the existence and amount of the debt; standards for collecting debts in installment payments; the assessment of interest, penalties, and administrative costs on delinquent debts; standards for the compromise of overdue debt; standards to be followed in determining whether to suspend or terminate collection action; the required referral of delinquent debts to FMS for collection; the reporting of debts to consumer reporting agencies and the use of credit reports; and the sale of delinquent debts. The Director also must follow the procedures for the specific type of offset remedy to be utilized, which are provided by the following subparts of part 313: Subpart B (administrative offset), subpart C (salary offset), subpart D (administrative wage garnishment), subpart E (tax refund offset), subpart F (Civil Service retirement and disability fund offset), and subpart G (mandatory centralized administrative offset). The criminal restitution orders that the FDIC holds in almost all instances are initially acquired by the FDIC in its receivership capacity. Over time, the FDIC as receiver has transferred a substantial number of individual restitution orders to the FDIC in its corporate capacity, with the result that today criminal restitution debt is held by the FDIC in both its receivership and corporate capacities. Because part 313 as currently drafted excludes all of the FDIC's receivership and liquidation functions (among other functions) from its scope, it must be amended for the FDIC to have the authority to collect criminal restitution debt through TOP. The legal authority for the proposed amendments is found in the DCIA itself. The DCIA's definition of “debt” includes criminal restitution debt owed to federal agencies including the FDIC. Thus, section 3701(b)(1)(D) of the DCIA defines “claim” or “debt” to include:
(D)Any amount the United States is authorized by statute to collect for the benefit of any person. Criminal restitution debt owed to the FDIC falls squarely within this definition, regardless of whether that debt is owed to the FDIC in its receivership capacity or its corporate capacity. The United States Department of Justice is primarily responsible for collecting unpaid federal criminal restitution debt. The Mandatory Victims Restitution Act
(MVRA)of 1996, 18 U.S.C. 3556 & 3663 seq., which makes imposition of restitution a mandatory component of sentencing for many federal crimes, including banking crimes, expressly provides in section 3664(m) that the United States has the authority to enforce all federal criminal restitution orders in all cases. Moreover, the Federal Debt Collection Procedures Act (FDCPA), 28 U.S.C. 3001 et seq., originally enacted in 1990, is the primary statutory authority that DOJ uses to collect criminal restitution orders on behalf of the victims identified in those orders, which include the FDIC in the case of restitution orders held by the FDIC. The FDCPA also explicitly defines “debt” to include “an amount that is owing to the United States on account of * * * restitution.” 28 U.S.C. 3002(3)(B). United States Attorney's Offices throughout the United States use the MVRA and FDCPA to collect and enforce criminal restitution debt on behalf of the FDIC and other victims including other federal agencies. If DOJ does not enforce an individual order, the victim named in the order may seek to enforce it instead. II. Discussion of the Amendments to Part 313 The amendments would modify part 313 in three ways: 1. A number of individual sections of part 313 are amended to provide that part 313 applies to criminal restitution debt owed to the FDIC in either its corporate or receivership capacity in addition to the already-covered corporate debts currently identified in § 313.1. 2. Section 313.4 is amended to provide that the FDIC Board delegates to the Director of the Division of Resolutions and Receiverships
(DRR)authority to refer delinquent criminal restitution debt to FMS. 3. A new section 313.125 is added to subpart E, the Tax Refund Offset regulations, to clarify that duplicate notice to a debtor is not required if notice and an opportunity for review were previously provided to the same debtor. This provision is identical to the existing § 313.28 found in the Administrative Offset regulations in subpart B. While § 313.28 arguably already applies to subpart E (because tax refund offset is generally considered to be a form of “administrative” offset), the new § 313.125 is added to eliminate any uncertainty in the FDIC's regulations on this point. III. Administrative Procedure Act Neither advance notice of proposed rulemaking nor an opportunity to comment on the amendments to part 313 is required under the Administrative Procedure Act (APA), because these amendments relate solely to agency procedure and practice. 5 U.S.C. 553(b)(3)(A). IV. Regulatory Flexibility Act Pursuant to the Regulatory Flexibility Act, the FDIC hereby certifies that the amendments to part 313 do not have a significant economic impact on a substantial number of small business entities. As amended, part 313 applies primarily to federal agencies and to a limited number of individuals and/or business entities. 5 U.S.C. 605(b). V. Paperwork Reduction Act This rule is not subject to the Paperwork Reduction Act, 44 U.S.C. 3501, because it does not contain any new information collection requirements. VI. Assessment of Impact of Federal Regulation on Families The FDIC has determined that part 313 as amended will not affect family well-being within the meaning of section 654 of the Treasury and General Government Appropriations Act, enacted as part of the Omnibus Consolidated and Emergency Supplemental Appropriations Act, 1999 (Pub. L. 105-277, 112 Stat. 2681). VII. Small Business Regulatory Enforcement Fairness Act The Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA) (Pub. L. 104-121) provides generally for agencies to report rules to Congress for review. The reporting requirement is triggered when the FDIC issues a final rule as defined by the APA at 5 U.S.C. 551. Because the FDIC is issuing a final rule as defined by the APA, the FDIC will file the reports required by SBREFA. The Office of Management and Budget has determined that this final rule does not constitute a “major rule” as defined by SBREFA. List of Subjects in 12 CFR Part 313 Claims, Government employees, Wages. For the reasons set forth in the preamble, the FDIC hereby amends part 313 of chapter III of title 12 of the Code of Federal Regulations as follows: PART 313—PROCEDURES FOR COLLECTION OF CORPORATE DEBT AND CRIMINAL RESTITUTION DEBT 1. The authority citation for part 313 is revised to read as follows: Authority: 12 U.S.C. 1819(a); 5 U.S.C. 5514; Pub. L. 104-143; 110 Stat. 1321 (31 U.S.C. 3701, 3711, 3716). 2. Revise § 313.1(c) to read as follows: § 313.1 Scope.
(c)This part applies only to:
(1)Debts owed to and payments made by the FDIC acting in its corporate capacity, that is, in connection with employee matters such as travel-related claims and erroneous overpayments, contracting activities involving corporate operations, debts related to requests to the FDIC for documents under the Freedom of Information Act (FOIA), or where a request for an offset is received by the FDIC from another federal agency; and
(2)Criminal restitution debt owed to the FDIC in either its corporate capacity or its receivership capacity.
(3)With the exception of criminal restitution debt noted in paragraph (c)(2) of this section, this part does not apply to debts owed to or payments made by the FDIC in connection with the FDIC's liquidation, supervision, enforcement, or insurance responsibilities, nor does it limit or affect the FDIC's authority with respect to debts and/or claims pursuant to 12 U.S.C. 1819(a) and 1820(a). 3. In § 313.3 revise paragraphs (d), (h), and (j); redesignate paragraphs
(n)through
(v)as paragraphs
(o)through (w), respectively; add a new paragraph (n); and revise the newly designated paragraph
(r)to read as follows: § 313.3 Definitions.
(d)Certification means a written statement transmitted from a creditor agency to a paying agency for purposes of administrative or salary offset, to FMS for offset or to the Secretary of the Treasury for centralized administrative offset. The certification confirms the existence and amount of the debt and verifies that required procedural protections have been afforded the debtor. Where the debtor requests a hearing on a claimed debt, the decision by a hearing official or administrative law judge constitutes a certification.
(h)*Debt* means an amount owed to the United States from loans insured or guaranteed by the United States and all other amounts due the United States from fees, leases, rents, royalties, services, sales of real or personal property, overpayments, penalties, damages, interest, restitution, fines and forfeitures, and all other similar sources. For purposes of this part, a debt owed to the FDIC constitutes a debt owed to the United States.
(j)*Director* means the Director of the Division of Finance (DOF), the Director of the Division of Administration (DOA), or the Director of the Division of Resolutions and Receiverships (DRR), as applicable, or the applicable Director's delegate.
(n)*Division of Resolutions and Receiverships (DRR)* means the Division of Resolutions and Receiverships of the FDIC.
(r)*Notice of Intent to Offset or Notice of Intent* means a written notice from a creditor agency to an employee, organization, entity, or restitution debtor that claims a debt and informs the debtor that the creditor agency intends to collect the debt by administrative offset. The notice also informs the debtor of certain procedural rights with respect to the claimed debt and offset. 4. Revise the introductory paragraph in § 313.4 to read as follows: § 313.4 Delegations of authority. Authority to conduct the following activities to collect debt, other than criminal restitution debt, on behalf of the FDIC in its corporate capacity is delegated to the Director of DOA or Director of DOF, as applicable; and authority to collect criminal restitution debt on behalf of the FDIC in either its receivership or corporate capacity is delegated to the Director of DRR; or to the applicable Director's delegate; to: 5. Redesignate § 313.125 through 313.127 as § 313.126 through 313.128 and add a new § 313.125 to read as follows: § 313.125 No requirement for duplicate notice. Where the director has previously given a debtor any of the required notice and review opportunities with respect to a particular debt, the Director is not required to duplicate such notice and review opportunities prior to initiating tax refund offset. By order of the Board of Directors. Dated at Washington, DC, this 5th day of December, 2006. Federal Deposit Insurance Corporation. Robert E. Feldman, Executive Secretary. [FR Doc. E6-21470 Filed 12-15-06; 8:45 am] BILLING CODE 6714-01-P DEPARTMENT OF ENERGY Federal Energy Regulatory Commission 18 CFR Part 292 [Docket No. RM06-10-000] New PURPA Section 210(m) Regulations Applicable to Small Power Production and Cogeneration Facilities; Correction AGENCY: Federal Energy Regulatory Commission, DOE. ACTION: Final rule; correction. SUMMARY: This document corrects errors in a final rule that the Federal Energy Regulatory Commission (Commission) published in the **Federal Register** on November 1, 2006. That action amended the Commission's regulations governing small power production and cogeneration in response to section 1253 of the Energy Policy Act of 2005. DATES: These corrections are effective January 2, 2007. FOR FURTHER INFORMATION CONTACT: Samuel Higginbottom (Legal Information), Office of the General Counsel, Federal Energy Regulatory Commission, at
(202)502-8561. SUPPLEMENTARY INFORMATION: In FR Document 06-8928, published November 1, 2006 (71 FR 64342), make the following corrections: On page 64372, column 2, in § 292.303(c)(1), in the last sentence, after “interconnection” add “costs”. The sentence is corrected to read: “The obligation to pay for any interconnection costs shall be determined in accordance with § 292.306. On page 64372, column 2, in “§ 292.303(d), in the first sentence, after “purchase energy”, remove “and” and add in its place “or”. Sentence is corrected to read : “If a qualifying facility agrees, an electric utility which would otherwise be obligated to purchase energy or capacity from such qualifying facility may transmit energy or capacity to any other electric utility”. On page 64373, column 1, in § 292.309(f)(2), in the last sentence after “facility ouput or” add the word “capacity”. Sentence is corrected to read: “The qualifying facility may show that it is located in an area where persistent transmission constraints in effect cause the qualifying facility not to have access to markets outside a persistently congested area to sell the qualifying facility output or capacity”. On page 64374, second column, in § 292.312(b), after, “an existing qualifying cogeneration” remove “qualifying”. The sentence is corrected to read: “After August 8, 2005, an electric utility shall not be required to enter into a new contract or obligation to sell electric energy to a qualifying small power production facility, an existing qualifying cogeneration facility, or a new qualifying cogeneration facility if the Commission has found that;” Magalie R. Salas, Secretary. [FR Doc. E6-21433 Filed 12-15-06; 8:45 am] BILLING CODE 6717-01-P DEPARTMENT OF STATE 22 CFR Part 41 [Public Notice: 5646] Visas: Documentation of Nonimmigrants Under the Immigration and Nationality Act, as Amended AGENCY: State Department. ACTION: Final rule. SUMMARY: This final rule amends guidance to consular offices for the waiver of personal appearance of applicants for nonimmigrant visas contained at 22 CFR 41.102, to conform to the requirements of Section 222(h) of the Immigration and Nationality Act, as added by section 5301 of the Intelligence Reform and Terrorism Prevention Act of 2004 (IRTPA). The final rule replaces the interim rule published in the **Federal Register** on July 7, 2003 and reflects legislation enacted subsequent to that rule. DATES: This rule is effective on December 18, 2006. FOR FURTHER INFORMATION CONTACT: Charles Robertson, Legislation and Regulations Division, Visa Services, Department of State, Washington, DC 20520-0106,
(202)663-1221, e-mail ( *robertsonce3@state.gov* ). SUPPLEMENTARY INFORMATION: Why is the Department promulgating this rule? Section 5301 of the Intelligence Reform and Terrorism Prevention Act of 2004 (IRTPA) added a new Section 222(h) to the Immigration and Nationality Act (INA). Section 222(h) sets out detailed statutory requirements for personal interviews of non-immigrant visa applicants in the INA for the first time. Previously, INA Section 222(e) left the question of personal appearance of nonimmigrant visa applicants to be defined by regulation. The Department's interim rule published on July 7, 2003 (68 FR 40168) defined the requirements for personal appearance. This final rule replaces the previous interim rule to reflect the requirements of IRTPA and the new INA Section 222(h). Most of new Section 222(h) can be implemented through the Department's existing personal appearance regulations and current requirements for fingerprint collection, but a few changes in the regulations are needed to conform fully to the new interview requirements. The most significant change is that a consular officer must now interview persons in the same age ranges as persons covered by the biometric collection requirement. In addition to the existing list of situations in which an interview may not be waived, the personal interview requirement may not be waived for NIV applicants from third countries and applicants who have been previously refused visas or found ineligible for visas, where that ineligibility was not overcome. Are there any exceptions to these new requirements? Section 5301 of IRTPA provides for some exceptions from the new interview requirements. In addition, as the President noted in the signing statement for IRTPA, the interview requirement is viewed “as advisory” with respect to foreign diplomats or foreign officials, because it otherwise would impermissibly burden the President's constitutional authority to conduct foreign relations. Therefore, the regulations continue to permit exemptions from the interview requirements of persons in A-1, A-2, C-2, C-3, G-1, G-2, G-3 G-4, NATO-1, NATO-2, NATO-3, NATO-4, NATO-5, or NATO 6 classifications, and applicants for diplomatic or officials visas as described in 22 CFR 41.26 and 41.27. Regulatory Findings Administrative Procedure Act This regulation involves a foreign affairs function of the United States and, therefore, in accordance with 5 U.S.C. 553 (a)(1), is not subject to the rule making procedures set forth at 5 U.S.C. 553. Regulatory Flexibility Act/Executive Order 13272: Small Business This rule is not subject to the notice-and-comment rulemaking provisions of the Administrative Procedure Act or any other act, and, accordingly it does not require analysis under the Regulatory Flexibility Act (5 U.S.C. 601, *et seq.* ) and Executive Order 13272, section 3(b). The Unfunded Mandates Reform Act of 1995 Section 202 of the Unfunded Mandates Reform Act of 1995 (UFMA), Pub. L. 104-4, 109 Stat. 48, 2 U.S.C. 1532, generally requires agencies to prepare a statement before proposing any rule that may result in an annual expenditure of $100 million or more by State, local, or tribal governments, or by the private sector. This rule will not result in any such expenditure, nor will it significantly or uniquely affect small governments. The Small Business Regulatory Enforcement Fairness Act of 1996 This rule is not a major rule as defined by 5 U.S.C. 804, for purposes of congressional review of agency rulemaking under the Small Business Regulatory Enforcement Fairness Act of 1996, Pub. L. 104-121. This rule will not result in an annual effect on the economy of $100 million or more; a major increase in costs or prices; or adverse effects on competition, employment, investment, productivity, innovation, or the ability of United States-based companies to compete with foreign based companies in domestic and import markets. Executive Order 12866: Regulatory Review The Department of State has reviewed this rule to ensure its consistency with the regulatory philosophy and principles set forth in Executive Order 12866 and has determined that the benefits of the proposed regulation justify its costs. The Department does not consider the rule to be an economically significant action within the scope of section 3(f)(1) of the Executive Order since it is not likely to have an annual effect on the economy of $100 million or more or to adversely affect in a material way the economy, a sector of the economy, competition, jobs, the environment, public health or safety, or state, local, or tribal governments or communities. Executive Orders 12372 and 13132: Federalism This regulation will not have substantial direct effects on the States, on the relationship between the national government and the States, or the distribution of power and responsibilities among the various levels of government. Nor will the rule have federalism implications warranting the application of Executive Orders No. 12372 and No. 13132. Executive Order 12988: Civil Justice Reform The Department has reviewed the proposed regulations in light of sections 3(a) and 3(b)(2) of Executive Order No. 12988 to eliminate ambiguity, minimize litigation, establish clear legal standards, and reduce burden. Paperwork Reduction Act This rule does not impose information collection requirements under the provisions of the Paperwork Reduction Act, 44 U.S.C., Chapter 35. List of Subjects in 22 CFR Part 41 Aliens, Foreign officials, Immigration, Nonimmigrants, Passports and visas, Students. For the reasons stated in the preamble, the Department of State amends 22 CFR part 41 as follows: PART 41—[AMENDED] 1. The authority citation for part 41 shall continue to read: Authority: 8 U.S.C. 1104; Pub. L. 105-277, 112 Stat. 2681-795 through 2681-801. Additional authority is derived from Section 104 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) Pub. L. 104-208, 110 Stat. 3546. 2. Amend § 41.102 as follows: A. Revise paragraph (b), B. Amend paragraph
(c)by adding the phrase “Except as provided in paragraph
(d)of this section” to the beginning of the second sentence. C. Redesignate paragraph
(d)as
(e)and add a new paragraph (d). The new and revised text reads as follows: § 41.102 Personal appearance of applicant
(b)*Waivers of personal appearance by consular officers.* Except as provided in paragraph
(d)of this section or as otherwise instructed by the Deputy Assistant Secretary of State for Visa Services, a consular officer may waive the requirement of personal appearance in the case of any alien who the consular officer concludes presents no national security concerns requiring an interview and who:
(1)Is a child under 14 years of age;
(2)Is a person over 79 years of age;
(3)Is within a class of nonimmigrants classifiable under the visa symbols A-1, A-2, C-2, C-3 (except attendants, servants, or personal employees of accredited officials), G-1, G-2, G-3, G-4, NATO-1, NATO-2, NATO-3, NATO-4, NATO-5, or NATO-6 and who is seeking a visa in such classification;
(4)Is an applicant for a diplomatic or official visa as described in §§ 41.26 or 41.27 of this chapter, respectively;
(5)Is an applicant who within 12 months of the expiration of the applicant's previously issued visa is seeking re-issuance of a nonimmigrant biometric visa in the same classification at the consular post of the applicant's usual residence, and for whom the consular officer has no indication of visa ineligibility or of noncompliance with U.S. immigration laws and regulations; or
(6)Is an alien for whom a waiver of personal appearance is warranted in the national interest or because of unusual circumstances.
(d)*Cases in which personal appearance may not be waived.* A consular officer or the Deputy Assistant Secretary of State may not waive personal appearance for:
(1)Any NIV applicant who is not a national or resident of the country in which he or she is applying, unless the applicant is eligible for a waiver of the interview under paragraphs (b)(3) or (b)(4) of this section.
(2)Any NIV applicant who was previously refused a visa, is listed in CLASS, or who otherwise requires a Security Advisory Opinion, unless:
(i)The visa was refused temporarily and the refusal was subsequently overcome;
(ii)The alien was found inadmissible, but the inadmissibility was waived; or
(iii)The applicant is eligible for a waiver of the interview under paragraphs (b)(3) or (b)(4) of this section.
(3)Any NIV applicant who is from a country designated by the Secretary of State as a state sponsor of terrorism, regardless of age, or in a group designated by the Secretary of State under section 222(h)(2)(F) of the Immigration and Nationality Act, unless the applicant is eligible for a waiver under paragraphs (b)(3) or (b)(4) of this section. Dated: November 30, 2006. Maura Harty, Assistant Secretary for Consular Affairs, Department of State. [FR Doc. E6-21492 Filed 12-15-06; 8:45 am] BILLING CODE 4710-06-P DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 165 [CGD13-06-052] RIN 1625-AA00 Safety Zone Regulations, New Tacoma Narrows Bridge Construction Project, Construction Vessels and Equipment Under and in Immediate Vicinity of West Span AGENCY: Coast Guard, DHS. ACTION: Temporary final rule. SUMMARY: The Coast Guard is establishing a temporary safety zone around construction vessels and mooring lines under the West Span of the Tacoma Narrows Bridge during the deck erection phase of construction. This safety zone will be in effect regardless of whether construction vessels are present or not. This zone approximately encompasses all waters from the Gig Harbor shoreline to just east of the west bridge caissons, extending 1500 feet north and south. The Coast Guard is taking this action to safeguard the public from possible collision with the vessels or their mooring lines, chains, or cables. Entry into this zone is prohibited unless authorized by the Captain of the Port, Puget Sound or his designated representatives. DATES: This rule is effective from 12:01 a.m. November 16, 2006 to 11:59 p.m. January 16, 2007. ADDRESSES: Documents indicated in this preamble as being available in the docket are part of docket CGD13-06-052 and are available for inspection or copying at the Waterways Management Division, Coast Guard Sector Seattle, 1519 Alaskan Way South, Seattle, WA, 98134, between 8 a.m. and 3 p.m., Monday through Friday, except Federal holidays. FOR FURTHER INFORMATION CONTACT: Lieutenant Junior Grade Jes Hagen, Waterways Management Division, Coast Guard Sector Seattle, at
(206)217-6958. SUPPLEMENTARY INFORMATION: Background and Purpose Pursuant to 5 U.S.C. 553, a notice of proposed rulemaking
(NPRM)has not been published for this regulation and good cause exists for making it effective without publication of an NPRM in the **Federal Register.** Publishing a NPRM would be contrary to public interest since immediate action is necessary to ensure the safety of vessels and persons that transit in the vicinity of the Tacoma Narrows Bridge. If normal notice and comment procedures were followed, this rule would not become effective until after construction activities were already taking place. Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the **Federal Register.** Making the rule effective after 30 days of publication in the **Federal Register** would be contrary to public interest since immediate action is necessary to ensure the safety of vessels and persons that transit in the vicinity of the Tacoma Narrows Bridge. If normal notice and comment procedures were followed, this rule would not become effective until after construction activities were already taking place. Discussion of Rule The Coast Guard is adopting a temporary safety zone regulation on the waters of Tacoma Narrows, Washington, for the New Tacoma Narrows Bridge construction project. The Coast Guard has determined it is necessary to restrict access to the waters under the West Span, in a box bounded by the points: 47-16.44′ N, 122-33.35′ W; 47-16.34′ N, 122-33.04′ W; 47-16.1′ N, 122-33.33′ W; 47-16.21′ N, 122-33.63′ W, in order to safeguard people and property from hazards associated with the presence of construction vessels and equipment in that area. These safety hazards include, but are not limited to, hazards to navigation, collisions with mooring cables, and collisions with work vessels and barges. The Coast Guard, through this action, intends to promote the safety of personnel, vessels, and facilities in the area. Entry into this zone will be prohibited unless authorized by the Captain of the Port or his representative. This safety zone will be enforced by Coast Guard personnel. The Captain of the Port may be assisted by other federal, state, or local agencies. Regulatory Evaluation This temporary rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866 and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. It is not significant under the regulatory policies and procedures of the Department of Homeland Security (DHS). We expect the economic impact of this temporary rule to be so minimal that a full Regulatory Evaluation under paragraph 10(e) of the regulatory policies and procedures of DHS is unnecessary. This expectation is based on the fact that the regulated area established by this regulation would encompass a small area that should not impact commercial or recreational traffic. For the above reasons, the Coast Guard does not anticipate any significant economic impact. Small Entities Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. This rule will affect the following entities, some of which may be small entities: the owners or operators of vessels intending to transit this portion of the Tacoma Narrows during the time this regulation is in effect. The zone will not have a significant economic impact on a substantial number of small entities due to its small area. Because the impacts of this rule are expected to be so minimal, the Coast Guard certifies under 605(b) of the Regulatory Flexibility Act (5 U.S.C. 601-612) that this temporary rule will not have a significant economic impact on a substantial number of small entities. Assistance for Small Entities Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule so that they can better evaluate its effects on them and participate in the rulemaking. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the FOR FURTHER INFORMATION CONTACT section. Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). Collection of Information This temporary rule would call for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). Federalism A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this rule under that Order and have determined that it does not have implications for federalism. Unfunded Mandates Reform Act The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by State, local, or tribal government, in the aggregate, or the private sector of $100,000,000 or more in any one year. Though this rule will not result in such expenditure, we do discuss the effects of this rule elsewhere in this preamble. Taking of Private Property This temporary rule would not effect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights. Civil Justice Reform This temporary rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden. Protection of Children We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not concern an environmental risk to health or risk to safety that may disproportionately affect children. Indian Tribal Governments This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian tribal governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the federal government and Indian tribes, or on the distribution of power and responsibilities between the federal government and Indian tribes. Energy Effects We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. It has not been designated by the Administrator of the Office of Information and Regulatory Affairs as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211. Technical Standards The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards ( *e.g.* , specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies. This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards. Environment We have analyzed this rule under Commandant Instruction M16475.1D and Department of Homeland Security Management Directive 5100.1, which guides the Coast Guard in complying with the National Environmental Policy Act of 1969
(NEPA)(42 U.S.C. 4321-4370f), and have concluded that there are no factors in this case that would limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Therefore, this rule is categorically excluded, under figure 2-1, paragraph (34)(g), of the Instruction, from further environmental documentation. List of Subjects in 33 CFR Part 165 Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways. For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows: PART 165—REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS 1. The authority citation for part 165 continues to read as follows: Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. Chapter 701; 50 U.S.C. 191, 195; 33 CFR 1.05-1(g), 6.04-1, 6.04-6, and 160.5; Pub. L. 107-295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1. 2. From 12:01 a.m. November 16, 2006 to 11:59 p.m. January 16, 2007, a temporary § 165.T13-039 is added to read as follows: § 165.T13-039 Safety Zone: New Tacoma Narrows Bridge Construction Project, Construction Vessels and Equipment Under and in Immediate Vicinity of West Span.
(a)*Location.* The following is a safety zone: All waters of the Tacoma Narrows, Washington State, within a box bounded by the points: 47-16.44′ N, 122-33.35′ W; 47-16.34′ N, 122-33.04′ W; 47-16.1′ N, 122-33.33′ W; and 47-16.21′ N, 122-33.63′ W [Datum: NAD 1983]. This zone approximately encompasses all waters from the Gig Harbor shoreline to just east of the west bridge caissons, extending 1500 feet north and south.
(b)*Regulations.* In accordance with the general regulations in Section 165.23 of this part, no person or vessel may enter or remain in the zone except for those persons involved in the construction of the new Tacoma Narrows Bridge, supporting personnel, or other vessels authorized by the Captain of the Port or his designated representatives. Vessels and persons granted authorization to enter the safety zone shall obey all lawful orders or directions of the Captain of the Port or his designated representative. This safety zone will be in effect whether vessels are present or not.
(c)*Applicable dates.* This section applies from 12:01 a.m. November 16, 2006 to 11:59 p.m. January 16, 2007. Dated: November 15, 2006. Stephen P. Metruck, Captain, U.S. Coast Guard, Captain of the Port, Puget Sound. [FR Doc. E6-21459 Filed 12-15-06; 8:45 am] BILLING CODE 4910-15-P DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 165 [CGD13-06-054] RIN 1625-AA00 Safety Zone Regulations, New Tacoma Narrows Bridge Construction Project, Bridge Deck Lifting Beams AGENCY: Coast Guard, DHS. ACTION: Temporary final rule. SUMMARY: The Coast Guard is establishing a temporary safety zone around the lifting beams of the cranes being used to lift deck sections into place on the New Tacoma Narrows Bridge. The zone will encompass all waters within 500 feet of the area directly below the lifting beams for the duration of the lowering, hookup, raising, and securing evolutions, and will only apply to the beams on the cranes that are in use. The beams being used for the day's evolutions will be clearly marked on each end with a white flashing light. The Coast Guard is taking this action to safeguard the public from the hazards associated with navigating in the vicinity of moving construction equipment and heavy loads. These hazards may include risk of collision with the lifting beams and risks associated with falling loads, should there be an equipment failure. Entry into this zone is prohibited unless authorized by the Captain of the Port, Puget Sound or his designated representatives. DATES: This rule is effective from 12:01 a.m. November 16, 2006 to 11:59 p.m. January 16, 2007. ADDRESSES: Documents indicated in this preamble as being available in the docket are part of docket CGD13-06-054 and are available for inspection or copying at the Waterways Management Division, Coast Guard Sector Seattle, 1519 Alaskan Way South, Seattle, WA, 98134, between 8 a.m. and 3 p.m., Monday through Friday, except Federal holidays. FOR FURTHER INFORMATION CONTACT: Lieutenant Junior Grade Jes Hagen, Waterways Management Division, Coast Guard Sector Seattle, at
(206)217-6958. SUPPLEMENTARY INFORMATION: Background and Purpose Pursuant to 5 U.S.C. 553, a notice of proposed rulemaking
(NPRM)has not been published for this regulation and good cause exists for making it effective without publication of an NPRM in the **Federal Register** . Publishing a NPRM would be contrary to public interest since immediate action is necessary to ensure the safety of vessels and persons that transit in the vicinity of the Tacoma Narrows Bridge. If normal notice and comment procedures were followed, this rule would not become effective until after construction activities were already taking place. Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the **Federal Register** . Making the rule effective after 30 days of publication in the **Federal Register** would be contrary to public interest since immediate action is necessary to ensure the safety of vessels and persons that transit in the vicinity of the Tacoma Narrows Bridge. If normal notice and comment procedures were followed, this rule would not become effective until after construction activities were already taking place. Discussion of Rule The Coast Guard is adopting a temporary safety zone regulation on the waters of Tacoma Narrows, Washington, for the New Tacoma Narrows Bridge construction project. The Coast Guard has determined it is necessary to restrict access to the waters within 500 feet of the lifting beams being used to raise deck sections into place, in order to safeguard people and property from hazards associated with navigating in the vicinity of moving construction equipment. These safety hazards include, but are not limited to, hazards to navigation, collisions with the beams, and equipment failures resulting in falling loads. The Coast Guard, through this action, intends to promote the safety of personnel and vessels in the area. Entry into this zone will be prohibited unless authorized by the Captain of the Port or his representative. This safety zone will be enforced by Coast Guard personnel. The Captain of the Port may be assisted by other federal, state, or local agencies. Regulatory Evaluation This temporary rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866 and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. It is not significant under the regulatory policies and procedures of the Department of Homeland Security (DHS). We expect the economic impact of this temporary rule to be so minimal that a full Regulatory Evaluation under paragraph 10(e) of the regulatory policies and procedures of DHS is unnecessary. This expectation is based on the fact that the regulated area established by this regulation would encompass a small area that should not impact commercial or recreational traffic. For the above reasons, the Coast Guard does not anticipate any significant economic impact. Small Entities Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. This rule will affect the following entities, some of which may be small entities: The owners or operators of vessels intending to transit this portion of the Tacoma Narrows during the time this regulation is in effect. The zone will not have a significant economic impact on a substantial number of small entities due to its small area. Because the impacts of this rule are expected to be so minimal, the Coast Guard certifies under 605(b) of the Regulatory Flexibility Act (5 U.S.C. 601-612) that this temporary rule will not have a significant economic impact on a substantial number of small entities. Assistance for Small Entities Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule so that they can better evaluate its effects on them and participate in the rulemaking. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the FOR FURTHER INFORMATION CONTACT section. Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). Collection of Information This temporary rule would call for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). Federalism A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this rule under that Order and have determined that it does not have implications for federalism. Unfunded Mandates Reform Act The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by State, local, or tribal government, in the aggregate, or the private sector of $100,000,000 or more in any one year. Though this rule will not result in such expenditure, we do discuss the effects of this rule elsewhere in this preamble. Taking of Private Property This temporary rule would not effect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights. Civil Justice Reform This temporary rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden. Protection of Children We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not concern an environmental risk to health or risk to safety that may disproportionately affect children. Indian Tribal Governments This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian tribal governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the federal government and Indian tribes, or on the distribution of power and responsibilities between the federal government and Indian tribes. Energy Effects We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. It has not been designated by the Administrator of the Office of Information and Regulatory Affairs as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211. Technical Standards The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies. This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards. Environment We have analyzed this rule under Commandant Instruction M16475.1D and Department of Homeland Security Management Directive 5100.1, which guides the Coast Guard in complying with the National Environmental Policy Act of 1969
(NEPA)(42 U.S.C. 4321-4370f), and have concluded that there are no factors in this case that would limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Therefore, this rule is categorically excluded, under figure 2-1, paragraph (34)(g), of the Instruction, from further environmental documentation. List of Subjects in 33 CFR Part 165 Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways. For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows: PART 165—REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS 1. The authority citation for part 165 continues to read as follows: Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. Chapter 701; 50 U.S.C. 191, 195; 33 CFR 1.05-1(g), 6.04-1, 6.04-6, and 160.5; Pub. L. 107-295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1. 2. From 12:01 a.m. November 16, 2006 to 11:59 p.m. January 16, 2007, a temporary § 165.T13-041 is added to read as follows: § 165.T13-041 Safety Zone: New Tacoma Narrows Bridge Construction Project, Bridge Deck Lifting Beams.
(a)*Location.* The following is a safety zone: All waters of the Tacoma Narrows, Washington State, within 500 feet of the area directly below the bridge deck lifting beams attached to the New Tacoma Narrows Bridge, when they are in use. The bridge deck lifting beams being used will be clearly marked on each end with a white flashing light.
(b)*Regulations.* In accordance with the general regulations in Section 165.23 of this part, no person or vessel may enter or remain in the zone except for those persons involved in the construction of the new Tacoma Narrows Bridge, supporting personnel, or other vessels authorized by the Captain of the Port or his designated representatives. Vessels and persons granted authorization to enter the safety zone shall obey all lawful orders or directions of the Captain of the Port or his designated representative.
(c)*Applicable dates.* This section applies from 12:01 a.m. November 16, 2006 to 11:59 p.m. January 16, 2007. Dated: November 15, 2006. Stephen P. Metruck, Captain, U.S. Coast Guard, Captain of the Port, Puget Sound. [FR Doc. E6-21457 Filed 12-15-06; 8:45 am] BILLING CODE 4910-15-P DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 165 [CGD13-06-053] IN 1625-AA00 Safety Zone Regulations, New Tacoma Narrows Bridge Construction Project, Construction Barge “MARMACK 12” AGENCY: Coast Guard, DHS. ACTION: Temporary final rule. SUMMARY: The Coast Guard is establishing a temporary safety zone around the Barge “MARMACK 12”, Official Number 1024657, while it is being used for the New Tacoma Narrows Bridge Construction Project. The zone will extend 500 feet in all directions from the barge, and will be in effect at all times during the duration of this rule. This zone is only in effect while the barge is on the navigable waters of the United States, in the Tacoma Narrows. The Coast Guard is taking this action to safeguard the public from possible collision with the barge and the deck sections it is carrying, and from hazards associated with navigating in the vicinity of the barge during construction operations. Entry into this zone is prohibited unless authorized by the Captain of the Port, Puget Sound or his designated representatives. DATES: This rule is effective from 12:01 a.m. November 16, 2006 to 11:59 p.m. January 16, 2007. ADDRESSES: Documents indicated in this preamble as being available in the docket are part of docket CGD13-06-053 and are available for inspection or copying at the Waterways Management Division, Coast Guard Sector Seattle, 1519 Alaskan Way South, Seattle, WA, 98134, between 8 a.m. and 3 p.m., Monday through Friday, except Federal holidays. FOR FURTHER INFORMATION CONTACT: Lieutenant Junior Grade Jes Hagen, Waterways Management Division, Coast Guard Sector Seattle, at
(206)217-6958. SUPPLEMENTARY INFORMATION: Background and Purpose Pursuant to 5 U.S.C. 553, a notice of proposed rulemaking
(NPRM)has not been published for this regulation and good cause exists for making it effective without publication of an NPRM in the **Federal Register** . Publishing a NPRM would be contrary to public interest since immediate action is necessary to ensure the safety of vessels and persons that transit in the vicinity of the Tacoma Narrows Bridge. If normal notice and comment procedures were followed, this rule would not become effective until after construction activities were already taking place. Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the **Federal Register** . Making the rule effective after 30 days of publication in the **Federal Register** would be contrary to public interest since immediate action is necessary to ensure the safety of vessels and persons that transit in the vicinity of the Tacoma Narrows Bridge. If normal notice and comment procedures were followed, this rule would not become effective until after construction activities were already taking place. Discussion of Rule The Coast Guard is adopting a temporary safety zone regulation on the waters of Tacoma Narrows, Washington, for the New Tacoma Narrows Bridge construction project. The Coast Guard has determined it is necessary to restrict access to the waters within 500 feet of the construction barge “MARMACK”, in order to safeguard people and property from hazards associated with navigating in the vicinity of moving construction equipment. These safety hazards include, but are not limited to, hazards to navigation, collisions with the barge or its cargo, and disturbance of the load on the barge, which could fall or shift, injuring anyone in the vicinity. The Coast Guard, through this action, intends to promote the safety of personnel, vessels, and facilities in the area. Entry into this zone will be prohibited unless authorized by the Captain of the Port or his representative. This safety zone will be enforced by Coast Guard personnel. The Captain of the Port may be assisted by other federal, state, or local agencies. Regulatory Evaluation This temporary rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866 and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. It is not significant under the regulatory policies and procedures of the Department of Homeland Security (DHS). We expect the economic impact of this temporary rule to be so minimal that a full Regulatory Evaluation under paragraph 10(e) of the regulatory policies and procedures of DHS is unnecessary. This expectation is based on the fact that the regulated area established by this regulation would encompass a small area that should not impact commercial or recreational traffic. For the above reasons, the Coast Guard does not anticipate any significant economic impact. Small Entities Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. This rule will affect the following entities, some of which may be small entities: The owners or operators of vessels intending to transit this portion of the Tacoma Narrows during the time this regulation is in effect. The zone will not have a significant economic impact on a substantial number of small entities due to its small area, and the limited duration of the impacts to navigation caused by the zone. Because the impacts of this rule are expected to be so minimal, the Coast Guard certifies under 605(b) of the Regulatory Flexibility Act (5 U.S.C. 601-612) that this temporary rule will not have a significant economic impact on a substantial number of small entities. Assistance for Small Entities Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule so that they can better evaluate its effects on them and participate in the rulemaking. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the FOR FURTHER INFORMATION CONTACT section. Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). Collection of Information This temporary rule would call for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). Federalism A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this temporary rule under that Order and have determined that it does not have implications for federalism. Unfunded Mandates Reform Act The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by State, local, or tribal government, in the aggregate, or the private sector of $100,000,000 or more in any one year. Though this rule will not result in such expenditure, we do discuss the effects of this rule elsewhere in this preamble. Taking of Private Property This temporary rule would not effect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights. Civil Justice Reform This temporary rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden. Protection of Children We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not concern an environmental risk to health or risk to safety that may disproportionately affect children. Indian Tribal Governments This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian tribal governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the federal government and Indian tribes, or on the distribution of power and responsibilities between the federal government and Indian tribes. Energy Effects We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. It has not been designated by the Administrator of the Office of Information and Regulatory Affairs as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211. Technical Standards The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies. This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards. Environment We have analyzed this rule under Commandant Instruction M16475.1D and Department of Homeland Security Management Directive 5100.1, which guides the Coast Guard in complying with the National Environmental Policy Act of 1969
(NEPA)(42 U.S.C. 4321-4370f), and have concluded that there are no factors in this case that would limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Therefore, this rule is categorically excluded, under figure 2-1, paragraph (34)(g), of the Instruction, from further environmental documentation. List of Subjects in 33 CFR Part 165 Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways. For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows: PART 165—REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS 1. The authority citation for part 165 continues to read as follows: Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. Chapter 701; 50 U.S.C. 191, 195; 33 CFR 1.05-1(g), 6.04-1, 6.04-6, and 160.5; Pub. L. 107-295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1. 2. From 12:01 a.m. November 16, 2006 to 11:59 p.m. January 16, 2007, a temporary § 165.T13-040 is added to read as follows: § 165.T13-040 Safety Zone: New Tacoma Narrows Bridge Construction Project, Construction Barge “MARMACK 12”.
(a)*Location.* The following is a safety zone: All waters of the Tacoma Narrows, Washington State, within 500 feet of the construction barge “MARMACK 12”, official number 1024657.
(b)*Regulations.* In accordance with the general regulations in Section 165.23 of this part, no person or vessel may enter or remain in the zone except for those persons involved in the construction of the new Tacoma Narrows Bridge, supporting personnel, or other vessels authorized by the Captain of the Port or his designated representatives. Vessels and persons granted authorization to enter the safety zone shall obey all lawful orders or directions of the Captain of the Port or his designated representative.
(c)*Applicable dates.* This section applies from 12:01 a.m. November 16, 2006 to 11:59 p.m. January 16, 2007. Dated: November 15, 2006. Stephen P. Metruck, Captain, U.S. Coast Guard, Captain of the Port, Puget Sound. [FR Doc. E6-21456 Filed 12-15-06; 8:45 am] BILLING CODE 4910-15-P DEPARTMENT OF VETERANS AFFAIRS 38 CFR Part 3 RIN 2900-AM47 Extension of the Presumptive Period for Compensation for Gulf War Veterans AGENCY: Department of Veterans Affairs. ACTION: Interim final rule. SUMMARY: The Department of Veterans Affairs
(VA)is issuing this interim final rule to amend its adjudication regulations regarding compensation for disabilities resulting from undiagnosed illnesses suffered by veterans who served in the Persian Gulf War. This amendment is necessary to extend the presumptive period for qualifying chronic disabilities resulting from undiagnosed illnesses that must become manifest to a compensable degree in order that entitlement for compensation be established. The intended effect of this amendment is to provide consistency in VA adjudication policy and preserve certain rights afforded to Persian Gulf War veterans and ensure fairness for current and future Persian Gulf War veterans. DATES: *Effective Date:* This interim final rule is effective December 18, 2006. Comments must be received by VA on or before February 16, 2007. ADDRESSES: Written comments may be submitted through *http://www.Regulations.gov;* by mail or hand-delivery to Director, Regulations Management (00REG), Department of Veterans Affairs, 810 Vermont Ave., NW., Room 1068, Washington, DC 20420; or by fax to
(202)273-9026. Comments should indicate that they are submitted in response to “RIN 2900-AM47—Extension of the Presumptive Period for Compensation for Gulf War Veterans.” All comments received will be available for public inspection in the Office of Regulation Policy and Management, Room 1063B, between the hours of 8 a.m. and 4:30 p.m., Monday through Friday (except holidays). Please call
(202)273-9515 for an appointment. In addition, during the comment period, comments are available online through the Federal Docket Management System (FDMS). FOR FURTHER INFORMATION CONTACT: Rhonda F. Ford, Consultant, Regulations Staff, Compensation and Pension Service, Veterans Benefits Administration, 810 Vermont Avenue, NW., Washington, DC 20420, telephone
(202)273-7210. SUPPLEMENTARY INFORMATION: I. Establishing a Presumptive Period In response to the needs and concerns of veterans of the Persian Gulf War (Gulf War), Congress enacted the Persian Gulf War Veterans' Benefits Act, title I of the Veterans' Benefits Improvements Act of 1994, Public Law 103-446, which was codified in relevant part in title 38, United States Code, section 1117. This law provided authority to the Secretary of Veterans Affairs (Secretary) to compensate Gulf War veterans with a chronic disability resulting from an undiagnosed illness that became manifest either during service on active duty in the Southwest Asia theater of operations during the Persian Gulf War or to a 10 percent degree or more during a presumptive period determined by the Secretary. Public Law 103-446 directed the Secretary to prescribe by regulation the period of time (presumptive period) following service in the Southwest Asia theater of operations determined to be appropriate for the manifestation of an illness warranting payment of compensation. It further directed that the Secretary's determination of a presumptive period be made only following a review of any credible medical or scientific evidence and the historical treatment afforded disabilities for which manifestation periods have been established and taking into account other pertinent circumstances regarding the experiences of veterans of the Persian Gulf War. II. Background To implement 38 U.S.C. 1117, VA published a final rule adding a new § 3.317 to title 38, Code of Federal Regulations. This regulation established the framework necessary for the Secretary to pay compensation under the authority granted by the Persian Gulf War Veterans' Benefits Act. See 60 FR 6660, February 3, 1995. As part of that rulemaking, VA established a 2-year, post-Gulf War service presumptive period based primarily on the historical treatment of disabilities for which manifestation periods have been established and pertinent facts known regarding service in the Southwest Asia theater of operations during the Persian Gulf War. VA determined that there was little or no scientific or medical evidence, at that time, useful in determining an appropriate presumptive period for undiagnosed illnesses. Due to the continuing lack of medical and scientific evidence about the nature and cause of the illnesses suffered by Gulf War veterans and consensus concerning the inadequacy of the 2-year presumptive period for undiagnosed illnesses, the Secretary determined the presumptive period should be extended to include illnesses manifest to a 10 percent degree not later than December 31, 2001. On April 29, 1997, VA published a final rule amending 38 CFR 3.317 to implement this decision. See 62 FR 23138. In 1998, Congress enacted Public Law 105-277 requiring VA to collaborate with the National Academy of Sciences
(NAS)to review and evaluate available scientific evidence regarding associations between illnesses and exposure to hazards of Gulf War service. Section 1603(i)(3) of Public Law 105-277 required NAS to issue reports, which are produced by the Institute of Medicine's
(IOM)Committee on Gulf War and Health, every 2 years to review scientific research on Gulf War toxic exposures. In 2001, the Secretary extended the presumptive period for undiagnosed illnesses suffered by Persian Gulf War veterans from December 31, 2001, to December 31, 2006, based upon ongoing research that would require review by the Secretary. VA published an interim final rule amending 38 CFR 3.317 to extend the presumptive period to December 31, 2006 (an additional 5 years). See 66 FR 56614, November 9, 2001. In December 2001, section 202(a) of Public Law 107-103 amended 38 U.S.C. 1117 by revising the term “chronic disability” to include the following (or any combination of the following):
(a)An undiagnosed illness;
(b)a medically unexplained chronic multisymptom illness (such as chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome) that is defined by a cluster of signs or symptoms; or
(c)any diagnosed illness that the Secretary determines warrants a presumption of service connection. The revised term, “qualifying chronic disability,” has broadened the scope of those health outcomes the Secretary may include under the presumption of service connection. Under 38 U.S.C. 1117, a qualifying chronic disability must still occur during service on active duty in the Armed Forces in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more during the presumptive period prescribed following such service. Accordingly, VA amended 38 CFR 3.317 to reflect these changes. See 68 FR 34539, June 10, 2003. III. Current Research The NAS' Committee on Gulf War and Health has several meetings planned during 2006 in support of current research projects. One such research project is Physiologic, Psychologic, and Psychosocial Effects of Deployment Related Stress. The objective of this project is to comprehensively review, evaluate, and summarize the scientific and medical literature for peer review regarding the association between stress and long-term adverse health effects in the Gulf War. The NAS study is not limited to veterans of the Persian Gulf War deployments of the early 1990s but also includes veterans of current conflicts, such as Operation Iraqi Freedom, occurring in part, within the Southwest Asia theater of operations. In addition to the above-referenced report, we anticipate that the NAS will prepare other reports relevant to Gulf War veterans' health, including reports required by Public Law 105-277 to be prepared every 2 years through October 1, 2010. These research projects have the potential of bringing much needed information to the Secretary regarding the establishment of a new, more definitive, presumptive period for Gulf War veterans with qualifying chronic disabilities. These NAS research projects have begun and are currently ongoing. Presently, VA continues to receive claims for qualifying chronic disabilities. In 2005 for example, VA received 2,241 new claims with diagnostic codes that would be affected by this final rule, and we continue to receive such claims during 2006. Conclusion Currently, military operations in the Southwest Asia theater of operations continue, including Operation Iraqi Freedom. No end date for the Gulf War has been established by Congress or the President. See 38 U.S.C. 101(33). Because scientific uncertainty remains as to the cause of illnesses suffered by Persian Gulf War veterans and current IOM research studies are incomplete, limiting entitlement to benefits payable under 38 U.S.C. 1117 due to the expiration of the presumptive period in 38 CFR 3.317 is premature. If extension of the current presumptive period is not implemented, servicemembers conducting military operations in the Southwest Asia theater of operations after December 31, 2006, could be substantially disadvantaged compared to servicemembers who previously served in the same theater of operations. Therefore, VA is extending the presumptive period in 38 CFR 3.317 for qualifying chronic disabilities that become manifest to a degree of 10 percent or more through December 31, 2011 (a period of 5 years), to ensure those benefits established by Congress are fairly administered. Administrative Procedure Act The Secretary of Veterans Affairs finds that there is good cause under the provisions of 5 U.S.C. 553(b)(3)(B), to publish this rule without prior opportunity for public comment. In light of the fast approaching expiration date of the current presumptive period of December 31, 2006, the Secretary finds delay for the purpose of soliciting public comment impracticable, and because expiration of this rule would prohibit VA's delivery of important benefits to some veterans of the Gulf War and Operation Iraqi Freedom, further delay would be contrary to public interest. For the foregoing reasons, the Secretary of Veterans Affairs is issuing this rule as an interim final rule. The Secretary will consider and address comments that are received on or before February 16, 2007. Paperwork Reduction Act This document contains no provisions constituting a new collection of information under the Paperwork Reduction Act (44 U.S.C. 3501-3521). Regulatory Flexibility Act The Secretary hereby certifies that this regulatory amendment will not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601-612. Only VA beneficiaries could be directly affected. Therefore, pursuant to 5 U.S.C. 605(b), this amendment is exempt from the initial and final regulatory flexibility analysis requirements of sections 603 and 604. Executive Order 12866 Executive Order 12866 directs agencies to assess all costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity). The Executive Order classifies a “significant regulatory action,” requiring review by the Office of Management and Budget
(OMB)unless OMB waives such review, as any regulatory action that is likely to result in a rule that may:
(1)Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities;
(2)Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency;
(3)Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or
(4)Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order. VA has examined the economic, legal, and policy implications of this Interim final rule and has concluded that it is a significant regulatory action under Executive Order 12866. Unfunded Mandates The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 1532, that agencies prepare an assessment of anticipated costs and benefits before issuing any rule 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 (adjusted annually for inflation) in any given year. This rule would have no such effect on State, local, and tribal governments, or the private sector. Catalog of Federal Domestic Assistance Numbers The Catalog of Federal Domestic Assistance program numbers and titles are 64.100, Automobiles and Adaptive Equipment for Certain Disabled Veterans and Members of the Armed Forces; 64.101, Burial Expenses Allowance for Veterans; 64.102, Compensation for Service-Connected Deaths for Veterans' Dependents; 64.103, Life Insurance for Veterans; 64.104, Pension for Non-Service-Connected Disability for Veterans; 64.105, Pension to Veterans Surviving Spouses, and Children; 64.106, Specially Adapted Housing for Disabled Veterans; 64.109, Veterans Compensation for Service-Connected Disability; 64.110, Veterans Dependency and Indemnity Compensation for Service-Connected Death; 64.114, Veterans Housing-Guaranteed and Insured Loans; 64.115, Veterans Information and Assistance; 64.116,Vocational Rehabilitation for Disabled Veterans; 64.117, Survivors and Dependents Educational Assistance; 64.118, Veterans Housing-Direct Loans for Certain Disabled Veterans; 64.119, Veterans Housing-Manufactured Home Loans; 64.120, Post-Vietnam Era Veterans' Educational Assistance; 64.124, All-Volunteer Force Educational Assistance; 64.125, Vocational and Educational Counseling for Servicemembers and Veterans; 64.126, Native American Veteran Direct Loan Program; 64.127, Monthly Allowance for Children of Vietnam Veterans Born with Spina Bifida; and 64.128, Vocational Training and Rehabilitation for Vietnam Veterans' Children with Spina Bifida or Other Covered Birth Defects. List of Subjects in 38 CFR Part 3 Administrative practice and procedure, Claims, Health care, Individuals with disabilities, Pensions, Veterans, Vietnam. Approved: September 26, 2006. Gordon H. Mansfield, Deputy Secretary of Veterans Affairs. For the reasons set forth in the preamble, 38 CFR part 3 is amended as follows: PART 3—ADJUDICATION Subpart A—Pension, Compensation, and Dependency and Indemnity Compensation 1. The authority citation for part 3, subpart A continues to read as follows: Authority: 38 U.S.C. 501(a), unless otherwise noted. § 3.317 [Amended] 2. In § 3.317, paragraph (a)(1)(i) is amended by removing “December 31, 2006” and adding, in its place, “December 31, 2011”. [FR Doc. E6-21531 Filed 12-15-06; 8:45 am] BILLING CODE 8320-01-P DEPARTMENT OF VETERANS AFFAIRS 38 CFR Part 21 RIN 2900-AM12 Transfer of Montgomery GI Bill-Active Duty Entitlement to Dependents AGENCY: Department of Veterans Affairs. ACTION: Final rule. SUMMARY: This rule amends Department of Veterans Affairs
(VA)regulations to implement VA's authority under the National Defense Authorization Act for Fiscal Year 2002 and the Bob Stump National Defense Authorization Act for Fiscal Year 2003 to provide educational assistance to dependents eligible for transferred Montgomery GI Bill-Active Duty
(MGIB)entitlement. The legislation authorized the Department of Defense
(DoD)to offer individuals in the Armed Forces, who have critical military skills, the option to transfer up to 18 months of their MGIB entitlement to their dependents as a reenlistment incentive. In addition, the rule implements a provision in the Strom Thurmond National Defense Authorization Act for Fiscal Year 1999, which increased the maximum amount of benefits payable under DoD's college fund program. DATES: *Effective Date:* This final rule is effective December 18, 2006. *Applicability Dates.* VA will apply the amendments in this final rule in accordance with the effective dates specified by Congress for the statutory changes. Therefore, the transfer of entitlement provisions of this rule will apply to individuals, who are eligible, on or after December 28, 2001, the date of enactment of the National Defense Authorization Act for Fiscal Year 2002. The provisions of this rule addressing the maximum monthly amount payable under DoD's college fund program will apply to individuals, who are eligible, on or after October 1, 1998, the date of enactment of the Strom Thurmond National Defense Authorization Act for Fiscal Year 1999. VA will apply the increased maximum college fund amount to individuals first entering the Armed Forces after September 30, 1998. FOR FURTHER INFORMATION CONTACT: Lynn M. Nelson (225C), Education Advisor, Veterans Benefits Administration, Department of Veterans Affairs, 810 Vermont Avenue, NW., Washington, DC 20420, 202-273-7294. SUPPLEMENTARY INFORMATION: This document amends VA's regulations set forth in 38 CFR part 21 concerning the MGIB program to implement provisions permitting the transfer of MGIB entitlement to dependents and to reflect the maximum amount of additional educational assistance payable under DoD's college fund program. I. Transfer of MGIB Entitlement Section 654 of the National Defense Authorization Act for Fiscal Year 2002 (Pub. L. 107-107), added section 3020 to title 38, United States Code, authorizing DoD to permit certain individuals to transfer some of their MGIB entitlement to their dependents. The Bob Stump National Defense Authorization Act for Fiscal Year 2003 (Pub. L. 107-314) amended 38 U.S.C. 3020 to clarify the rate of payment of educational assistance allowance to dependents in receipt of transferred entitlement. VA is amending its regulations to implement the provisions in 38 U.S.C. 3020 as described in this final-rule notice. Section 3020 authorizes the Secretary of each service department, or the Secretary of Defense with respect to the Coast Guard or the Secretary of Homeland Security when the Coast Guard is not operating as a service in the Navy, at such Secretary's sole discretion, to permit a servicemember, who is entitled to MGIB, to transfer up to 18 months of his or her MGIB entitlement to his or her eligible dependents. The statute further provides the— • Eligibility criteria for both the individual transferring the entitlement and the dependent; • Limits on months of entitlement that may be transferred; • Administrative provisions (including designations, revocations, and modifications of transferred entitlement); and • Special provisions in the event of an overpayment of educational assistance allowance. These statutory changes are being incorporated in VA's existing regulations governing the MGIB program by adding new 38 CFR 21.7080. Since 38 U.S.C. 3020(h) provides that a dependent transferee has the same MGIB entitlement as the transferor, new 38 CFR 21.7080(a) lists the regulations in 38 CFR part 21 that apply to individuals in receipt of transferred entitlement. As it is at the discretion of the Secretary concerned to approve transfer entitlement, and not every servicemember will be permitted to do so, VA must have some evidence of the approval prior to payment of benefits. Thus, § 21.7080(b) provides that VA will accept a copy of the reenlistment contract attachment (DD Form 2366-2) that DoD issues to individuals granted the transferability option or any other comparable document issued and signed by an appropriate service department official. Section 3020 of title 38, United States Code, permits the transfer of entitlement to an approved servicemember's child or children. A stepchild meets the definition of child for VA purposes if the stepchild is a member of the veteran's household (38 U.S.C. 101(4); 38 CFR 3.57). Section 21.7080(c)(4) provides that a stepchild, who is a member of the servicemember's household or who has maintained normal family ties while temporarily absent from the household, is an eligible transferee. Section 3032(a)(1) of title 38, United States Code, places limitations on educational assistance for individuals who are on active duty. However, section 3020(h)(3)(A) specifically provides that these limitations do not apply to eligible dependents. Nonetheless, VA is not allowing an individual, who is eligible for the Selected Reserve “kicker,” to transfer the “kicker” to his or her dependent because there are no provisions in title 10, United States Code, that authorize such a transfer. The Selected Reserve kicker is an amount of money that DoD authorizes for certain Selected Reserve members under the authority of 10 U.S.C. 16131(i)(2) and is a benefit provided in addition to the amount otherwise payable under 38 U.S.C. 3015. Based on the lack of statutory authority in title 10, we will not include the transferor's “Selected Reserve kicker” when determining the amount payable to a dependent under 38 CFR 21.7080(k). However, if the dependent is eligible for a Selected Reserve kicker based on his or her own Selected Reserve service, we will increase the MGIB educational assistance transferred to the dependent by the amount of the kicker in accordance with 10 U.S.C. 16131(i)(2). In 38 CFR 21.7080(l), we state that a dependent is not entitled to educational assistance for training pursued in an on-the-job training or apprenticeship program during periods the transferor is on active duty. This restriction implements 38 U.S.C. 3002(3), which provides that an authorized program of education for MGIB purposes includes on-the-job training or apprenticeship programs only for those individuals who are *not* on active duty. Section 21.7080(n) addresses the maximum months of entitlement and concurrent receipt of educational assistance for a dependent, who is eligible for MGIB through his or her own military service and through transferred entitlement. Section 3033 of title 38, United States Code, does not bar an individual's receipt of MGIB benefits based on his or her own military service concurrently with educational assistance payable via transferred entitlement. We note that 38 U.S.C. 3695 limits the period of assistance (months of entitlement) when an individual is entitled to educational assistance under two or more programs. However, this limitation does not apply when the individual is entitled to MGIB educational assistance through transferred entitlement and MGIB educational assistance based on the individual's own military service because the benefits are provided under one program (38 U.S.C. chapter 30). Section 3020(h)(4) of title 38, United States Code, provides that the death of the transferor will not affect the tranferee's entitlement. Section 21.7050(h)(2) and (i)(2) provide that the ending date of eligibility for dependents of a transferor, who dies on active duty without specifying an eligibility termination date, is 10 years from the date of the transferor's death. This is consistent with the generally applicable eligibility period of 10 years following the date of discharge or release from active duty. Regardless, a dependent child's eligibility will end at age 26 in accordance with 38 U.S.C. 3020(h)(5), even if the 10-year period has not expired. II. Increased Maximum Amount of DoD College Fund “Kicker” Effective October 1, 1998, the Strom Thurmond National Defense Authorization Act for Fiscal Year 1999 (Pub. L. 105-261) amended 38 U.S.C. 3015 to increase the maximum amount payable under DoD's college fund program for certain individuals, who first become members of the Armed Forces after September 30, 1998. The Secretary concerned determines the amount of the college fund payment to these individuals. VA is updating its regulations, 38 CFR 21.7136, to include this increase. In updating § 21.7136, VA is also correcting an earlier technical oversight that failed to set forth the maximum amount payable under the DoD college fund program. This oversight has not harmed those eligible for the increased college fund because VA, regardless of the regulatory error, has been paying educational assistance that includes the maximum college fund when appropriate and as authorized by DoD. For clarity, VA is further amending 38 CFR 21.7137(b) to provide that if there is no cost for a course, educational assistance is not payable. Section 3032(a) of title 38, United States Code, provides that the amount of educational assistance payable to an active duty servicemember or an individual training at less than 1/2 -time is the lesser of the rate otherwise payable or the cost of the tuition and fees. Consequently, if there is no cost, nothing is payable. We are also amending 38 CFR 21.7137 to remove paragraph (d). Public Law 105-261 amended 38 U.S.C. 3015(d) to authorize the service departments to increase the basic MGIB educational assistance allowance to $950 per month for certain individuals, who first became members of the Armed Forces on or after October 1, 1998. Currently only those individuals, who meet the requirements of 38 U.S.C. 3011(a)(1)(B) or (C), or 3012(a)(1)(B) or (C), are eligible for the enhanced educational assistance rates set forth in current § 21.7137. Such rates may be awarded at the discretion of the Secretary of the service department concerned. However, these individuals, who meet the requirements of 38 U.S.C. 3011(a)(1)(B) or (C), or 3012(a)(1)(B) or (C), first became members of the Armed Forces *before* July 1, 1985, and thus do not qualify for the additional amount provided in 38 U.S.C. 3015(d), as amended by Public Law 105-261. Prior to the enactment of Public Law 105-261, the law did not proscribe these additional payments to certain individuals, who had prior service or who entered the Armed Forces before October 1, 1998. Nonetheless, the service departments did not offer the additional payments to individuals who entered the Armed Forces before July 1, 1985. VA is removing paragraph
(d)of § 21.7137 because the statutory amendment only applies to service on or after October 1, 1998, and because the service departments never provided the additional payment to any individual who entered service before that date. III. Clerical Changes, Revisions for Clarity or Simplification of Application We are amending 38 CFR 21.7131(h) and 38 CFR 21.7135(p)(1) to remove cross references to former 38 CFR 21.7139(e), (f), and (g). We are amending 38 CFR 21.7135(a)(2) by adding the words “his or her” before “program of education.” We are amending 38 CFR 21.7138(c)(1) to provide the correct cross-reference to § 21.7136. We are amending 38 CFR 21.7139(b) and
(c)by combining them into new § 21.7137(b) for purposes of simplification. In addition, we are amending several cross references in § 21.7139 because of revisions in §§ 21.7136 and 21.7137. Administrative Procedure Act Changes to 38 CFR part 21 are being published without regard to the notice-and-comment and delayed-effective-date provisions of 5 U.S.C. 553 because they conform VA's existing rules to statutory amendments. Accordingly, these changes involve procedural and interpretive rules exempt from the notice-and-comment and delayed-effective-date requirements of 5 U.S.C. 553(b) and (d). Executive Order 12866 Executive Order 12866 directs agencies to assess all costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity). The Executive Order classifies a “significant regulatory action,” requiring review by the Office of Management and Budget, as any regulatory action that is likely to result in a rule that may:
(1)Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities;
(2)Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency;
(3)Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or
(4)Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order. The economic, interagency, budgetary, legal, and policy implications of this final rule have been examined and it has been determined that it is a significant regulatory action under the Executive Order because it may raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order. Paperwork Reduction Act The filing requirements in new 38 CFR 21.7080(b), (e), (g), and
(h)are not considered collections of information under the Paperwork Reduction Act (44 U.S.C. 3501-321) because they apply to less than 10 persons within any 12-month period. The filings information referenced in § 21.7080(b) is a one-time submission to establish that the transferor was approved by a service department to participate in the transferability program. The collection in § 21.7080(e) is generally a one-time collection. The filings information referenced in paragraphs
(g)and
(h)of § 21.7080 apply to modifications and revocations of the transferor's designation of transfer. Although early in the program, VA has not received any modification or revocation requests. Due to the small universe of servicemembers approved to transfer entitlement and the low volume of dependents who have requested educational assistance via transferred entitlement since the program began, and the varying ages of the transferor's children, VA does not anticipate collecting information from 10 or more persons in any year under any of the above mentioned paragraphs of § 21.7080. Unfunded Mandates The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 1532, that agencies prepare an assessment of anticipated costs and benefits before developing any rule that may result in an expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more (adjusted annually for inflation) in any given year. This rule would have no such effect on State, local, and tribal governments, or on the private sector. Regulatory Flexibility Act The initial and final regulatory flexibility analyses requirements of sections 603 and 604 of the Regulatory Flexibility Act, 5 U.S.C. 601-612, are not applicable to this rule, because a notice of proposed rulemaking is not required for this rule. Even so, the Secretary of Veterans Affairs hereby certifies that this final rule will not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act. This final rule directly affects only individuals and does not directly affect small entities. Therefore, this final rule is also exempt pursuant to 5 U.S.C. 605(b) from the initial and final regulatory flexibility analyses requirements of sections 603 and 604. Catalog of Federal Domestic Assistance Program Numbers The Catalog of Federal Domestic Assistance number and title for the program affected by this final rule is 64.124, All-Volunteer Force Educational Assistance. List of Subjects in 38 CFR Part 21 Administrative practice and procedure, Armed forces, Civil rights, Claims, Colleges and universities, Conflict of interests, Education, Employment, Grant programs—education, Grant programs—veterans, Health care, Loan programs—education, Loan programs—veterans, Manpower training programs, Reporting and recordkeeping requirements, Schools, Travel and transportation expenses, Veterans, Vocational education, Vocational rehabilitation. Approved: September 8, 2006. Gordon H. Mansfield, Deputy Secretary of Veterans Affairs. For the reasons stated in the preamble, the Department of Veterans Affairs amends 38 CFR part 21, subpart K, as follows: PART 21—VOCATIONAL REHABILITATION AND EDUCATION Subpart K—All Volunteer Force Educational Assistance Program (Montgomery GI Bill—Active Duty) 1. The authority citation for part 21, subpart K continues to read as follows: Authority: 38 U.S.C. 501(a), chs. 30, 36, unless otherwise noted. 2. Amend § 21.7020 to revise paragraph (b)(9)(i) and to add paragraphs (b)(58) and (b)(59) immediately following the authority citation at the end of paragraph (b)(57), to read as follows: § 21.7020 Definitions.
(b)* * *
(9)* * *
(i)A spouse as defined in § 3.50(a) of this chapter,
(58)*Transferor.* The term *transferor* means an individual, who is—
(i)Entitled to educational assistance under the Montgomery GI Bill—Active Duty program based on his or her own active duty service; and
(ii)Approved by the service department to transfer a portion of his or her entitlement to his or her dependent or dependents. (Authority: 38 U.S.C. 3020)
(59)*Transferee.* The term *transferee* means an individual to whom entitlement has been transferred. (Authority: 38 U.S.C. 3020) 3. Amend § 21.7050 to add paragraphs
(h)and
(i)immediately after the authority citation at the end of paragraph (g), to read as follows: § 21.7050 Ending dates of eligibility.
(h)*Time limitation for a spouse eligible for transferred entitlement.*
(1)Unless the transferor dies while on active duty, the ending date of the eligibility period for a spouse, who is eligible for transferred entitlement under § 21.7080, is the earliest of the following dates:
(i)The transferor's ending date of eligibility as determined under this section;
(ii)The ending date the transferor specified, if the transferor specified the period for which the transfer was effective; or
(iii)The effective date of the transferor's revocation of transfer of entitlement as determined under § 21.7080(g)(2).
(2)If the transferor dies while on active duty, the ending date of the eligibility period for a spouse, who is eligible for transferred entitlement under § 21.7080, is the earliest of the following dates:
(i)The date 10 years from the transferor's date of death;
(ii)The ending date the transferor specified, if the transferor specified the period for which the transfer was effective; or
(iii)The effective date of the transferor's revocation of transfer of entitlement as determined under § 21.7080(g)(2). (Authority: 38 U.S.C. 3020)
(i)*Time limitation for a child eligible for transferred entitlement.*
(1)Unless the transferor dies while on active duty, the ending date of the eligibility period for a child, who is eligible for transferred entitlement under § 21.7080 is the earliest of the following dates:
(i)The transferor's ending date of eligibility as determined under this section;
(ii)The ending date the transferor specified, if the transferor specified the period for which the transfer was effective;
(iii)The effective date of the transferor's revocation of transfer of entitlement as determined under § 21.7080(g)(2); or
(iv)The day the child attains age 26.
(2)If the transferor dies while on active duty, the ending date of the eligibility period for a child, who is eligible for transferred entitlement under § 21.7080, is the earliest of the following dates:
(i)The date 10 years from the transferor's date of death;
(ii)The ending date the transferor specified, if the transferor specified the period for which the transfer was effective;
(iii)The effective date of the transferor's revocation of transfer of entitlement as determined under § 21.7080(g)(2); or
(iv)The day the child attains age 26. (Authority: 38 U.S.C. 3020) 4. An undesignated center heading and § 21.7080 are added to read as follows: Transfer of Entitlement to Basic Educational Assistance to Dependents § 21.7080 Transfer of entitlement. An individual entitled to educational assistance under the Montgomery GI Bill—Active Duty (38 U.S.C. chapter 30) program based on his or her own active duty service, and who is approved by a service department to transfer a portion of his or her entitlement, may transfer up to a total of 18 months of his or her entitlement to a dependent (or among dependents). A transferor may not transfer an amount of entitlement that is greater than the entitlement he or she has available.
(a)*Application of sections in subpart K to individuals in receipt of transferred entitlement.* In addition to the rules in this section, the following sections apply to a dependent in the same manner as they apply to the individual from whom entitlement was transferred.
(1)*Definitions.* Section 21.7020—Definitions. (Authority: 38 U.S.C. 3020)
(2)*Claims and Applications.* Section 21.7030—Applications, claims, and time limits. (Authority: 38 U.S.C. 3020)
(3)*Eligibility.*
(i)Section 21.7050—Ending dates of eligibility, only paragraphs
(h)and (i); and
(ii)Section 21.7051—Extended period of eligibility, except that extensions to dependents are subject to the transferor's right to revoke transfer at any time and that VA may only extend a child's ending date to the date the child attains age 26. (Authority: 38 U.S.C. 3020)
(4)*Entitlement.*
(i)Section 21.7070—Entitlement;
(ii)Section 21.7075—Entitlement to tuition assistance top-up; and
(iii)Section 21.7076—Entitlement charges. (Authority: 38 U.S.C. 3020)
(5)*Counseling.*
(i)Section 21.7100—Counseling; and
(ii)Section 21.7103—Travel expenses. (Authority: 38 U.S.C. 3020)
(6)*Programs of Education.*
(i)Section 21.7110—Selection of program of education;
(ii)Section 21.7112—Programs of education combining two or more types of courses; and
(iii)Section 21.7114—Change of program. (Authority: 38 U.S.C. 3020)
(7)*Courses.*
(i)Section 21.7120—Courses included in programs of education;
(ii)Section 21.7122—Courses precluded; and
(iii)Section 21.7124—Overcharges. (Authority: 38 U.S.C. 3020)
(8)*Payments—Educational Assistance.*
(i)Section 21.7130—Educational Assistance;
(ii)Section 21.7131—Commencing dates, except for paragraphs (d), (g), (l), (m), (n), (o), and
(p)of § 21.7131;
(iii)Section 21.7133—Suspension or discontinuance of payments;
(iv)Section 21.7135—Discontinuance dates, except for paragraphs (q),
(s)and
(u)of § 21.7135;
(v)Section 21.7139—Conditions which result in reduced rates or no payment, except for paragraph
(c)of § 21.7139. VA will apply the rules in paragraph
(d)of § 21.7139 to dependents, who are on active duty;
(vi)Section 21.7140—Certifications and release of payments;
(vii)Section 21.7141—Tutorial assistance;
(viii)Section 21.7142—Accelerated payments;
(ix)Section 21.7143—Nonduplication of educational assistance; and
(x)Section 21.7144—Overpayments, except that the dependent and transferor are jointly and severally liable for any amount of overpayment of educational assistance to the dependent. (Authority: 38 U.S.C. 3020)
(9)*Pursuit of courses.*
(i)Section 21.7150—Pursuit;
(ii)Section 21.7151—Advance payment and accelerated payment certifications;
(iii)Section 21.7152—Certification of enrollment;
(iv)Section 21.7153—Progress and conduct;
(v)Section 21.7154—Pursuit and absences;
(vi)Section 21.7156—Other required reports;
(vii)Section 21.7158—False, late, or missing reports; and
(viii)Section 21.7159—Reporting fee. (Authority: 38 U.S.C. 3020)
(10)*Course Assessment* .
(i)Section 21.7170—Course measurement; and
(ii)Section 21.7172—Measurement of concurrent enrollments. (Authority: 38 U.S.C. 3020)
(11)*State approving agencies.* Section 21.7200—State approving agencies. (Authority: 38 U.S.C. 3020)
(12)*Approval of courses.*
(i)Section 21.7220—Course approval; and
(ii)Section 21.7222—Courses and enrollments which may not be approved. (Authority: 38 U.S.C. 3020)
(13)*Administrative.*
(i)Section 21.7301—Delegations of authority;
(ii)Section 21.7302—Finality of decisions;
(iii)Section 21.7303—Revision of decisions;
(iv)Section 21.7305—Conflicting interests;
(v)Section 21.7307—Examination of records;
(vi)Section 21.7310—Civil rights; and
(vii)Section 21.7320—Procedural protection; reduction following loss of dependent. (Authority: 38 U.S.C. 3020)
(b)*Proof of transfer of entitlement option.* An individual transferring entitlement, or the dependent to whom entitlement is transferred, must submit to VA—
(1)A copy of DD Form 2366-2, entitled “Montgomery GI Bill Act of 1984
(MGIB)Transferability Program”; or
(2)Any other document issued and signed by the transferor's service department that shows the transferor is authorized to transfer entitlement. (Authority: 38 U.S.C. 3020)
(c)*Eligible dependents.*
(1)An individual transferring entitlement under this section may transfer entitlement to—
(i)The individual's spouse;
(ii)One or more of the individual's children; or
(iii)A combination of the individuals referred to in paragraphs (c)(1)(i) and
(ii)of this section.
(2)A spouse must meet the definition of spouse in § 3.50(a) of this chapter.
(3)A child must meet the definition of child in § 3.57 of this chapter. The transferor must make the required designation shown in § 21.7080(e)(1) before the child attains age 23.
(4)A stepchild, who meets VA's definition of child in § 3.57 of this chapter and is temporarily not living with the transferor, remains a member of the transferor's household if the actions and intentions of the stepchild and transferor establish that normal family ties have been maintained during the temporary absence. (Authority: 38 U.S.C. 3020) y
(d)*Timeframe during which an individual may transfer entitlement.* An individual approved by his or her service department to transfer entitlement may do so at any time after such approval up until the transferor's ending date of eligibility as determined under § 21.7050. (Authority: 38 U.S.C. 3020)
(e)*Designating dependents, designating the amount to transfer, and period of transfer.*
(1)An individual transferring entitlement under this section must—
(i)Designate the dependent or dependents to whom such entitlement is being transferred;
(ii)Designate the number of months of entitlement to be transferred to each dependent; and
(iii)Specify the beginning date and ending date of the period for which the transfer is effective for each dependent.
(2)VA will accept the transferor's designations as shown on a copy of DD Form 2366-2, Montgomery GI Bill Act of 1984 Transferability Program, or on any document signed by the transferor that shows the information required in paragraphs (e)(1)(i) through (e)(1)(iii) of this section. (Authority: 38 U.S.C. 3020)
(f)*Maximum months of entitlement transferable.*
(1)The maximum amount of entitlement a transferor may transfer is the lesser of—
(i)Eighteen months of his or her entitlement; or
(ii)The amount of entitlement he or she has available.
(2)Subject to the limitations in paragraph (f)(1) of this section, the transferor may transfer up to the maximum amount of transferable entitlement—
(i)To one dependent; or
(ii)Divided among his or her designated dependents in any manner he or she chooses. (Authority: 38 U.S.C. 3020)
(g)*Revocation of transferred entitlement.*
(1)A transferor may revoke any unused portion of transferred entitlement any time by submitting a written notice to both the Secretary of Veterans Affairs and the Secretary of the service department that initially approved the transferor to transfer entitlement. VA will accept a copy of the written notice addressed to the service department as sufficient written notification to VA.
(2)The revocation will be effective the later of—
(i)The date VA receives the notice of revocation; or
(ii)The date the service department concerned receives the notice of revocation. (Authority: 38 U.S.C. 3020)
(h)*Modifying a transfer of entitlement.*
(1)A transferor may modify the designations he or she made under paragraph
(e)of this section at any time. Any modification made will apply only to any unused transferred entitlement. The transferor must submit a written notice to both the Secretary of Veterans Affairs and the Secretary of the service department that initially approved the transferor to transfer entitlement. VA will accept a copy of the written notice addressed to the service department as sufficient written notification to VA.
(2)The modification will be effective the later of—
(i)The date VA receives the notice of modification; or
(ii)The date the service department concerned receives the notice of modification. (Authority: 38 U.S.C. 3020)
(i)*Entitlement charge to transferor.* VA will reduce the transferor's entitlement at the rate of 1 month of entitlement for each month of transferred entitlement used by the dependents. (Authority: 38 U.S.C. 3020)
(j)*Secondary school diploma (or equivalency certificate).* Children, who have attained age 18, and spouses may use transferred entitlement to pursue and complete the requirements of a secondary school diploma (or equivalency certificate). (Authority: 38 U.S.C. 3020)
(k)*Rate of payment of educational assistance.* VA will apply the rules in § 21.7136 or § 21.7137 (and the rules in § 21.7138 when applicable) to determine the educational assistance rate that would apply to the transferor. VA will pay the dependent the monthly rate of educational assistance that would be payable to the transferor except that VA will—
(1)Exclude the transferor's kicker for service in the Selected Reserve(§§ 21.7136(g) and 21.7137(e)) if the transferor is eligible for such kicker;
(2)Include the dependent's Selected Reserve kicker, if the dependent is eligible for a kicker from the Selected Reserve based on the dependent's own Selected Reserve service; and
(3)Disregard the fact that either the transferor or the dependent is on (or both are on) active duty and pay the veteran rate rather than the rate applicable to individuals on active duty. (Authority: 10 U.S.C. 16131; 38 U.S.C. 3020(h))
(l)*Restriction on payment of educational assistance to a dependent pursuing an on-the-job training or apprenticeship program while transferor is on active duty.* A dependent is not entitled to educational assistance for training pursued in an on-the-job training or apprenticeship program during periods the transferor is on active duty. (Authority: 38 U.S.C. 3002(3), 3020(h))
(m)*Transferor fails to complete required service contract that afforded participation in the transferability program.*
(1)The dependents are not eligible for transferred entitlement if the transferor fails to complete the amount of active duty service he or she agreed to serve in the Armed Forces in order to participate in the transferability program, unless the transferor did not complete the active duty service due to—
(i)His or her death;
(ii)A service-connected disability;
(iii)A medical condition which preexisted such service on active duty and which the Secretary of VA determines is not service-connected;
(iv)A hardship; or
(v)A physical or mental condition that was not characterized as a disability and did not result from the individual's own willful misconduct, but that did interfere with the individual's performance of duty, as determined by the Secretary of each service department.
(2)VA will treat all payments of educational assistance to dependents as overpayments if the transferor does not complete the required service unless the transferor does not complete the required service due to one of the reasons stated in paragraphs (m)(1)(i) through
(v)of this section. (Authority: 38 U.S.C. 3020, 38 U.S.C. 3011(a)(1)(A)(ii))
(n)Dependent is eligible for educational assistance under this section and is eligible for educational assistance under 38 U.S.C. chapter 30 based on his or her own active duty service. Dependents eligible for payment of educational assistance through transferred entitlement and who are eligible for payment under 38 U.S.C. chapter 30 based on their own active service—
(1)May receive educational assistance payable under this section and educational assistance payable based on their own active duty service for the same course.
(2)Are not subject to the 48 months limit on training provided for in § 21.4020 when combining transferred entitlement with their own entitlement earned under 38 U.S.C. chapter 30 as long as the only educational assistance paid is under 38 U.S.C. chapter 30. If the dependent is awarded educational assistance under another program listed in § 21.4020 (other than 38 U.S.C. chapter 30), the 48 months limit on training will apply. (Authority: 38 U.S.C. 3020, 3033, 3034(a), 3695) 5. Amend § 21.7131 to revise paragraph
(h)introductory text and to add new paragraphs
(r)and
(s)immediately after the authority citation at the end of paragraph (q), to read as follows: § 21.7131 Commencing dates.
(h)*Individuals in a penal institution.* If a veteran or a servicemember is paid a reduced rate of educational assistance under § 21.7139
(c)and
(d)of this part, the rate will be increased or assistance will commence effective the earlier of the following dates:
(r)*Spouse eligible for transferred entitlement.* If a spouse is eligible for transferred entitlement under § 21.7080, the commencing date of the award of educational assistance will be no earlier than the latest of the following dates:
(1)The date the Secretary of the service department concerned approves the transferor to transfer entitlement;
(2)The date the transferor completes 6 years of service in the Armed Forces;
(3)The date the transferor specified in his or her designation of transfer; or
(4)The date the spouse first meets the definition of spouse in § 3.50(a) of this chapter. (Authority: 38 U.S.C. 3020)
(s)*Child eligible for transferred entitlement.* If a child is eligible for transferred entitlement under § 21.7080, the commencing date of the award of educational assistance will be no earlier than the latest of the following dates:
(1)The date the Secretary of the service department concerned approves the transferor to transfer entitlement;
(2)The date the transferor completes 10 years of service in the Armed Forces;
(3)The date the transferor specified in his or her designation of transfer;
(4)The date the child first meets the definition of child in § 3.50(a) of this chapter;
(5)Either—
(i)The date the child completes the requirements of a secondary school diploma (or equivalency certificate); or
(ii)The date the child attains age 18. (Authority: 38 U.S.C. 3020) 6. Amend § 21.7135 to revise paragraphs (a)(2), (p)(1), and
(r)and to add new paragraphs
(dd)through
(ii)immediately after the authority citation at the end of paragraph (cc), to read as follows: § 21.7135 Discontinuance dates.
(a)* * *
(2)In all other cases if the veteran or servicemember dies while pursuing his or her program of education, the discontinuance date of educational assistance shall be the last date of attendance.
(p)* * *
(1)The provisions of this paragraph apply to a veteran or servicemember whose educational assistance must be discontinued or who becomes restricted to payment of educational assistance at a reduced rate under § 21.7139
(c)and (d).
(r)*Record-purpose charge against entitlement under 38 U.S.C. chapter 34 equals entitlement that remained on December 31, 1989.* An individual, who is receiving basic educational assistance at the rates stated in § 21.7137(a), will have his or her award reduced to the rates found in § 21.7136(a) effective the date the total of the individual's record-purpose charges against his or her entitlement under 38 U.S.C. chapter 34 equals the entitlement to that benefit which the individual had on December 31, 1989. (Authority: 38 U.S.C. 30159(c); Pub. L. 98-525)
(dd)*Dependent exhausts transferred entitlement.* The discontinuance date of an award of educational assistance to a dependent, who exhausts the entitlement transferred to him or her is the date he or she exhausts the entitlement. (Authority: 38 U.S.C. 3020)
(ee)*Transferor revokes transfer of entitlement.* If the transferor revokes a transfer of entitlement, the dependent's date of discontinuance is the effective date of the revocation of transfer as determined under § 21.7080(g)(2). (Authority: 38 U.S.C. 3020)
(ff)*Transferor fails to complete additional active duty service requirement.* VA will discontinue each award of educational assistance given to a dependent, effective the first date of each such award when—
(1)The transferor fails to complete the additional active duty service requirement that afforded him or her the opportunity to transfer entitlement to educational assistance; and
(2)The service department discharges the transferor for a reason other than one of the reasons stated in § 21.7080(m)(1). (Authority: 38 U.S.C. 3020)
(gg)*Spouse eligible for transferred entitlement and transferor divorce.* If a spouse eligible for transferred entitlement and the transferor divorce, the spouse's discontinuance date is the date of the divorce. (Authority: 38 U.S.C. 101(31), 103, 3020)
(hh)*Child eligible for transferred entitlement marries.* If a child eligible for transferred entitlement marries, the date of discontinuance is the date the child marries. (Authority: 38 U.S.C. 101(4), 3020)
(ii)*Stepchild eligible for transferred entitlement no longer member of transferor's household.* If a stepchild eligible for transferred entitlement ceases to be a member of the transferor's household, the date of discontinuance is the date the stepchild was no longer a member of the transferor's household. See § 21.7080(c)(4). (Authority: 38 U.S.C. 101(4), 3020) 7. Section 21.7136 is amended by: a. Revising paragraphs (d)(1) and (d)(2) introductory texts; b. Redesignating paragraphs (d)(3), (d)(4), (d)(5), and (d)(6) as paragraphs (d)(4), (d)(5), (d)(7), and (d)(8), respectively. c. Adding new paragraphs (d)(3) and (d)(6). d. Revising newly designated paragraph (d)(5) introductory text. e. Revising paragraphs (e)(1) and (e)(2), and removing paragraph (e)(3). f. Revising paragraphs (g)(1) introductory text, (g)(1)(i) and (g)(2)(ii). g. Revising paragraphs (h)(1) introductory text, (h)(2)(i) through (iii), and (h)(3). The revisions and additions read as follows: § 21.7136 Rates of payment of basic educational assistance.
(d)* * *
(1)For individuals, who first become members of the Armed Forces before November 29, 1989, (other than those pursuing cooperative training before October 9, 1996, or apprenticeship or other on-job training) it may not exceed:
(2)For individuals, who become members of the Armed Forces during the period beginning November 29, 1989 and ending September 30, 1998 (other than those pursuing cooperative training before October 9, 1996, or apprenticeship or other on-job training), it may not exceed:
(3)For individuals, who first become members of the Armed Forces after September 30, 1998, (other than those pursuing apprenticeship or other on-job training), it may not exceed:
(i)$950.00 per month for full-time training,
(ii)$712.50 per month for three-quarter-time training,
(iii)$475.00 per month for one-half-time training or for training which is less than one-half, but more than one-quarter-time, or
(iv)$237.50 per month for one-quarter-time training or less. (Authority: 38 U.S.C. 3015, 3032)
(5)For individuals, who first become members of the Armed Forces during the period beginning November 29, 1989 and ending September 30, 1998, and, who are pursuing an apprenticeship or other on-job training, it may not exceed:
(6)For individuals, who first become members of the Armed Forces after September 30, 1998, and who are pursuing apprenticeship or other on-job training, it may not exceed:
(v)$712.50 per month during the first 6 months of training,
(vi)$522.50 per month during the second 6 months of training, or
(vii)$332.50 per month during the remaining months of training. (Authority: 38 U.S.C. 3015, 3032)
(e)* * *
(1)The monthly rate stated in either paragraph
(b)or
(c)of this section (as determined by the veteran's or servicemember's initial obligated period of active duty) plus any additional amounts that may be due under paragraph
(d)or
(f)of this section, or
(2)The monthly rate of the cost of the course. If there is no cost for the course, educational assistance is not payable. (Authority: 38 U.S.C. 3015, 3032)
(g)*Increase (“kicker”) in basic educational assistance rates payable for service in the Selected Reserve.*
(1)The Secretary of the service department concerned may increase the amount of basic educational assistance payable under paragraph (b), (c), (d), (e), or
(f)of this section, as appropriate. The increase (“kicker”) is payable to an individual, who has a skill or specialty in which there is a critical shortage of personnel or for which it is difficult to recruit, or, in the case of critical units, retain personnel, if the individual:
(i)Establishes eligibility for education under §§ 21.7042(a), 21.7045, or 21.7080; and
(2)* * *
(ii)May set the amount of the increase (“kicker”) payable, for an individual pursuing a program of education less than full time or pursuing a program of apprenticeship or other on-job training, at an amount less than the amount described in paragraph (g)(2)(i) of this section.
(h)* * *
(1)VA will increase the monthly rate provided in paragraphs (b)(1) through (b)(4) and (c)(1) through (c)(4) of this section by:
(2)* * *
(i)During the first 6 months of the veteran's pursuit of training, VA will increase the monthly rate provided in paragraphs (b)(5) through (b)(8) and (c)(5) through (c)(8) of this section by $3.75 for every $20 the individual contributed;
(ii)During the second 6 months of the veteran's pursuit of training, VA will increase the monthly rate provided in paragraphs (b)(5) through (b)(8) and (c)(5) through (c)(8) of this section by $2.75 for every $20 the individual contributed; and
(iii)During the remaining months of the veteran's pursuit of training, VA will increase the monthly rate provided in paragraphs (b)(5) through (b)(8) and (c)(5) through (c)(8) of this section by $1.75 for every $20 the individual contributed.
(3)VA will increase the monthly rate provided in paragraphs (b)(9) or (c)(9) of this section by $5 for every $20 the veteran has contributed. (Authority: 38 U.S.C. 3015(g)) 8. Section 21.7137 is amended by: a. Revising paragraph
(b)introductory text and paragraph (b)(2). b. Removing paragraph (d). c. Redesignating paragraph (e), (f), and
(g)as (d), (e), and (f), respectively. d. Revising newly designated paragraphs (d)(1) introductory text and (d)(1)(i). The revisions read as follows: § 21.7137 Rates of payment of basic educational assistance for individuals with remaining entitlement under 38 U.S.C. chapter 34.
(b)* * * Except as provided in paragraph
(d)of this section, the monthly rate of basic educational assistance for a veteran who is pursuing a course on a less than one-half-time basis is the lesser of:
(2)The monthly rate of the cost of the course. If there is no cost for the course, educational assistance is not payable.
(d)*Increase (“kicker”) in basic educational assistance rates for service in the Selected Reserve.*
(1)The Secretary of the service department concerned may increase the amount of basic educational assistance payable under paragraphs (a), (b), or
(c)of this section, as appropriate. The increase (“kicker”) is payable to an individual who has a skill or specialty in which there is a critical shortage of personnel or for which it is difficult to recruit, or, in the case of critical units, retain personnel, if the individual:
(i)Establishes eligibility for educational assistance under § 21.7044(a) or § 21.7080; 9. Amend § 21.7138 to revise paragraph (c)(1) to read as follows: § 21.7138 Rates of supplemental educational assistance.
(c)* * *
(1)The monthly rate of the veteran's or servicemember's basic educational assistance determined as provided in §§ 21.7136(e) and 21.7137(b),
(c)and
(d)of this part. 10. Section 21.7139 is amended by: a. Removing paragraph (b). b. Redesignating paragraphs (c), (d), (e), (f), and
(g)as paragraphs (b), (c), (d), (e), and
(f)respectively. c. In newly designated paragraph (b), revising the paragraph heading and introductory text. d. Revising newly designated paragraphs (c)(2)(iii), (d)(3)(iii), (f)(1)(i), and (f)(1)(ii). The revisions read as follows: § 21.7139 Conditions that result in reduced rates or no payment.
(b)*No educational assistance for some incarcerated veterans or servicemembers.* VA will pay no educational assistance to a veteran or servicemember, who—
(c)* * *
(2)* * *
(iii)The monthly rate found in § 21.7136(e) or § 21.7137(c), as appropriate.
(d)* * *
(3)* * *
(iii)The monthly rate determined by § 21.7136(e) or § 21.7137(b), as appropriate, plus the monthly rate stated in § 21.7138(c) if the veteran is entitled to supplemental educational assistance.
(f)* * *
(1)* * *
(i)The rates specified in §§ 21.7136(b)(5) through (b)(8), (c)(5) through (c)(8), (d)(4) through (d)(6), (f)(4) and (h)(2) and 21.7137(a)(5) through (a)(8); and
(ii)Any increase (“kicker”) set by the Secretary of the service department concerned as described in §§ 21.7136(g) and 21.7137(d). [FR Doc. E6-21525 Filed 12-15-06; 8:45 am] BILLING CODE 8320-01-P DEPARTMENT OF TRANSPORTATION Pipeline and Hazardous Materials Safety Administration 49 CFR Part 173 Shippers—General Requirements for Shipments and Packagings CFR Correction In Title 49 of the Code of Federal Regulations, parts 100 to 185, revised as of October 1, 2005, on page 584, § 173.302a is corrected by reinstating the second sentence of paragraph
(d)to read as follows: § 173.302a Additional requirements for shipment of nonliquefied (permanent) compressed gases in specification cylinders.
(d)* * * The maximum filling density of the diborane may not exceed 7 percent.* * * [FR Doc. 06-55531 Filed 12-15-06; 8:45 am]
Connections6 cite this · traces to 55
Traces to 55 documents
U.S. Code
35 references not yet in our index
  • 7 CFR 319
  • 7 CFR 319.56
  • 7 CFR 301
  • 7 CFR 305
  • 7 CFR 3015
  • 7 CFR 2.22
  • 12 CFR 313
  • 31 CFR 900
  • Pub. L. 105-277
  • Pub. L. 104-121
  • Pub. L. 104-143
  • 18 CFR 292
  • 22 CFR 41
  • Pub. L. 104-4
  • 109 Stat. 48
  • Pub. L. 104-208
  • 110 Stat. 3546
  • 33 CFR 165
  • 5 USC 601-612
  • 44 USC 3501-3520
  • 2 USC 1531-1538
  • 42 USC 4321-4370f
  • Pub. L. 107-295
  • 38 CFR 3
  • Pub. L. 103-446
  • Pub. L. 107-103
  • 44 USC 3501-3521
  • 38 CFR 21
  • Pub. L. 107-107
  • Pub. L. 107-314
  • Pub. L. 105-261
  • 44 USC 3501-321
  • 38 USC 30159(c)
  • Pub. L. 98-525
  • 49 CFR 173
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Cite7 CFR 319
Cite7 CFR 319.56
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Cites 90 · showing 12Cited by 6 across 2 sources
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