Rules and Regulations. Interim final rule

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BILLING CODE 4410-10-P DEPARTMENT OF TRANSPORTATION Office of the Secretary 49 CFR Part 40 [Docket OST-2007-26828] RIN 2105-AD64 Procedures for Transportation Workplace Drug and Alcohol Testing Programs: Procedures for Non-Evidential Alcohol Screening Devices AGENCY: Office of the Secretary, DOT. ACTION: Interim final rule. SUMMARY: The National Highway Transportation Safety Administration (NHTSA) has recently approved a new breath tube alcohol screening device

(ASD)which will qualify for use in DOT Agency regulated testing once it appears on NHTSA's conforming products list (CPL). This interim final rule

(IFR)will provide procedures for use of the new device and remove procedures for a previously approved breath tube ASD which is no longer being manufactured. DATES: This rule is effective January 11, 2007. Comments to the interim final rule should be submitted by February 12, 2007. Late-filed comments will be considered to the extent practicable. ADDRESSES: *Written Comments:* Submit written comments to the Docket Management System, U.S. Department of Transportation, Room PL-401, 400 Seventh Street, SW., Washington, DC 20590-0001. You may submit comments identified by the docket number (OST-2007-26828) by any of the following methods: • *Federal eRulemaking Portal: http://www.regulations.gov.* Follow the online instructions for submitting comments. • *Web site: http://dms.dot.gov.* Follow the instructions for submitting comments on the DOT electronic docket site. • *Fax:* 1-202-493-2478. • *Mail:* Docket Management System; U.S. Department of Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401, Washington, DC 20590-0001. • *Hand Delivery:* To the Docket Management System; Room PL-401 on the plaza level of the Nassif Building, 400 Seventh Street, SW., Washington, DC between 9 a.m. and 5 p.m., Monday through Friday, except Federal Holidays. *Instructions:* All submissions must include the agency name and docket number or Regulatory Identification Number

(RIN)for this notice. Note that all comments received will be posted without change to *http://dms.dot.gov* including any personal information provided. FOR FURTHER INFORMATION CONTACT: George Ellis or Bohdan Baczara, Office of Drug and Alcohol Policy and Compliance, Room 10403, 400 Seventh Street, SW., Washington, DC 20590; 202-366-3784 (voice), 202-366-3897 (fax), or *bohdan.baczara@dot.gov* (e-mail). SUPPLEMENTARY INFORMATION: Purpose Department regulations require that in order for an employer to utilize a specific ASD to conduct required DOT alcohol tests, the device must

(a)Have been approved by NHTSA as meeting required model specifications,

(b)be published by NHTSA in the **Federal Register** on their most current ASD CPL, and

(c)have Department-approved procedures in part 40 for its use. The procedures in this IFR will ensure that the NHTSA-approved breath tube ASD will be immediately available for use by employers upon publication of NHTSA's ASD CPL in the **Federal Register** . Background When it originally published its alcohol testing rules on February 15, 1994 (54 FR 7302 et seq.), the Department established breath testing using evidential breath testing devices

(EBTs)as the required method. However, in response to comments requesting additional flexibility in testing methods, the Department said that NHTSA would develop model specifications for non-evidential alcohol screening devices, evaluate additional screening devices against those specifications, and periodically publish a conforming products list of screening devices that met the model specifications. The Department noted, too, that the Department would also have to undertake separate rulemaking proceedings to establish part 40 procedures for use by DOT-regulated industries of any devices approved by NHTSA. On April 20, 1995 (60 FR 19675), the Department published procedures for use of both breath and saliva ASDs. At that time, the Department did not anticipate that additional breath and saliva screening devices would be developed that would necessitate new procedures for their use. As a result, the revised part 40 published December 19, 2000 (65 FR 79462) stated, in part, that ASDs on the NHTSA CPL could be used for part 40 alcohol screening tests. Because NHTSA added an ASD to their CPL and the Department had no procedures for its use, we were forced to amend that rule. On August 9, 2001 (65 FR 41944), part 40 was amended to read, “You may use an ASD that is on the NHTSA CPL for DOT alcohol tests only if there are instructions for its use in this part.” On October 1, 2002 (67 FR 61521), the Department published procedures for the use of a breath tube ASD that had been approved by NHTSA and added to their May 4, 2001 CPL (66 FR 22639). By 2005, that device was no longer being manufactured, and was removed from the CPL effective September 19, 2005 (70 FR 54972). NHTSA has recently approved a new breath tube ASD and anticipates adding it to their CPL in late January 2007. However, the breath tube procedures currently in our regulation are not consistent with instructions for use of the newly approved ASD. In this IFR, we have amended part 40 by eliminating procedures specific for the breath tube ASD which is no longer being manufactured and adding procedures for use of the newly approved device. Instructions for use of the new ASD are generally similar to those for the previously approved breath tube device. The principal difference is in how the alcohol result is read by the technician. Instead of comparing the color of the crystals in the ASD with the colored crystals in a manufacturer-produced control tube, the new ASD uses an electronic analyzer to provide the technician and the employee with an automated visual result of negative (a flashing green light) or positive (a flashing red light) at 0.02. The Department will retain the requirement to read the result within 15 minutes of the test to ensure a confirmation test, when necessary, is conducted in a timely manner. The addition of an electronic analyzer with this type of breath tube ASD will also add an entry to the list of fatal flaws which would require the alcohol screening test to be cancelled. According to the manufacturer, each electronic analyzer is pre-calibrated for use with a specific lot of detector devices. Use of an electronic analyzer not pre-calibrated for that lot will result in a fatal flaw. *Please note that employers participating in the DOT alcohol testing program are not authorized to use the new alcohol screening device until it appears on the NHTSA ASD CPL.* Regulatory Analyses and Notices The statutory authority for this rule derives from the Omnibus Transportation Employee Testing Act of 1991 (49 U.S.C. 102, 301, 322, 5331, 20140, 31306, and 54101 et seq.) and the Department of Transportation Act (49 U.S.C. 322). This IFR is not significant for purposes of Executive Order 12866 or the DOT's regulatory policies and procedures. It represents minor modifications to our procedures which do not increase costs on regulated parties. In fact, it would facilitate the use of an alcohol screening device that may increase flexibility and lower costs for employers who choose to use them over more expensive options already approved by the Department. Consequently, the Department certifies under the Regulatory Flexibility Act that this interim rule will not have a significant economic impact on a substantial number of small entities. To the extent that there is any such impact, it is expected to be negligible. Under the criteria of section 553 of the Administrative Procedure Act (APA), an agency may determine that prior notice and public comment are impractical, unnecessary, or contrary to the public interest. The Department believes that this interim change meets this requirement. The rule will impose no burdens on any parties, and NHTSA has already determined that the device is technically acceptable for use in the DOT alcohol testing program. We have concluded that it is necessary to make this procedural amendment without prior notice and comment in order to ensure that employers can use the ASD when it is placed on NHTSA's CPL as a qualified device (meeting DOT specifications for accuracy and precision). These same reasons provide good cause under the APA to make this rule effective immediately. The Department will, however, consider any comments concerning the procedures for use of the ASD. List of Subjects in 49 CFR Part 40 Administrative practice and procedures, Alcohol abuse, Alcohol testing, Drug abuse, Drug testing, Laboratories, Reporting and recordkeeping requirements, Safety, Transportation. 49 CFR Subtitle A Authority and Issuance Issued at Washington DC this 4th day of January, 2007. Mary E. Peters, Secretary of Transportation. For reasons discussed in the preamble, the Department of Transportation amends part 40 of Title 49, Code of Federal Regulations, as follows: PART 40—PROCEDURES FOR TRANSPORTATION WORKPLACE DRUG AND ALCOHOL TESING PROGRAMS 1. The authority citation for 49 CFR part 40 continues to read as follows: Authority: 49 U.S.C. 102, 301, 322, 5331, 20140, 31306, and 45101 *et seq.* 2. Revise § 40.245(b)(1), (2), (3), (6), (8), (9), and

(10)to read as follows: § 40.245 What is the procedure for an alcohol screening test using a saliva ASD or a breath tube ASD?

(b)* * *

(1)Check the expiration date on the detector device and the electronic analyzer or on the package containing the device and the analyzer and show it to the employee. You must not use the device or the analyzer after their expiration date. You must not use an analyzer which is not specifically pre-calibrated for the device being used in the collection.

(2)Remove the device from the package and secure an inflation bag onto the appropriate end of the device, as directed by the manufacturer on the device's instructions.

(3)Break the tube's ampoule in the presence of the employee.

(6)When the employee completes the breath process, take the device from the employee (or if you were holding it, remove it from the employee's mouth), remove the inflation bag, and prepare the device to be read by the analyzer in accordance with the manufacturer's directions.

(8)If you were able to successfully follow the procedures of paragraphs (b)(4) through (b)(6) of this section and after having waited the required amount of time directed by the manufacturer for the detector device to incubate, you must place the device in the analyzer in accordance with the manufacturer's directions. The result must be read from the analyzer no earlier then the required incubation time of the device. In all cases, the result must be read within 15 minutes of the test.

(9)You must follow the manufacturer's instructions for determining the result of the test. You must show the analyzer result to the employee and record the result on Step 3 of the ATF.

(10)You must never re-use detector devices or any gloves used in breath tube testing. The inflation bag must be voided of air following removal from a device. Inflation bags and electronic analyzers may be re-used but only in accordance with the manufacturer's directions. 3. Amend § 40.267 by adding a new paragraph (a)(4) to read as follows: § 40.267 What problems always cause an alcohol test to be cancelled?

(a)* * *

(4)The breath tube ASD is tested with an analyzer which has not been pre-calibrated for that device's specific lot (see § 40.245(b)(1)). [FR Doc. E7-242 Filed 1-10-07; 8:45 am] BILLING CODE 4910-9X-P 72 7 Thursday, January 11, 2007 Proposed Rules FARM CREDIT ADMINISTRATION 12 CFR Part 613 RIN 3052-AC33 Eligibility and Scope of Financing; Processing and Marketing AGENCY: Farm Credit Administration. ACTION: Proposed rule; reopening of comment period. SUMMARY: The Farm Credit Administration (FCA, Agency, or we) Board reopens the comment period for 45 days following the date of publication in the **Federal Register** on the proposed rule to amend its regulation governing financing of processing and marketing operations by Farm Credit System (Farm Credit, FCS, or System) institutions under titles I and II of the Farm Credit Act of 1971, as amended (Act), so that interested parties will have additional time to provide comments. DATES: Please send your comments to us on or before February 26, 2007. ADDRESSES: We offer a variety of methods to receive your comments. For accuracy and efficiency reasons, commenters are encouraged to submit comments by e-mail or through the Agency's Web site or the Federal eRulemaking Portal. As faxes are difficult for us to process and achieve compliance with section 508 of the Rehabilitation Act, please consider another means to submit your comment if possible. Regardless of the method you use, please do not submit your comment multiple times via different methods. You may submit comments by any of the following methods: • *E-mail:* Send us an e-mail at *reg-comm@fca.gov.* • *Agency Web site: http://www.fca.gov.* Select “Legal Info,” then “Pending Regulations and Notices.” • *Federal eRulemaking Portal: http://www.regulations.gov.* Follow the instructions for submitting comments. • *Mail:* Gary K. Van Meter, Deputy Director, Office of Regulatory Policy, Farm Credit Administration, 1501 Farm Credit Drive, McLean, VA 22102-5090. • *FAX:*

(703)883-4477. Posting and processing of faxes may be delayed. Please consider another means to comment, if possible. You may review copies of comments we received at our office in McLean, Virginia, or from our Web site at *http://www.fca.gov.* Once you are in the Web site, select “Legal Info,” and then select “Public Comments.” We will show your comments as submitted, but for technical reasons we may omit items such as logos and special characters. Identifying information that you provide, such as phone numbers and addresses, will be publicly available. However, we will attempt to remove e-mail addresses to help reduce Internet spam. FOR FURTHER INFORMATION CONTACT: Barry Mardock, Associate Director, Office of Regulatory Policy, Farm Credit Administration, 1501 Farm Credit Drive, McLean, VA,

(703)883-4456, TTY

(703)883-4434; or Michael A. Anderson, Policy Analyst, Office of Regulatory Policy, Farm Credit Administration, Denver, CO,

(303)696-9737; or Howard I. Rubin, Senior Counsel, Office of General Counsel, Farm Credit Administration, McLean, VA 22102-5090,

(703)883-4029, TTY

(703)883-4020. SUPPLEMENTARY INFORMATION: On October 16, 2006, FCA published a proposed rule in the **Federal Register** to amend its regulations in part 613 governing financing of processing and marketing operations by System institutions under titles I and II of the Farm Credit Act of 1971, as amended (Act). *See* 71 FR 60678. Specifically, this proposal would add additional specific criteria to determine eligibility of legal entities for financing as processing and marketing operations. The Agency further proposed a non-substantive technical correction to its regulation defining the term “person”. The comment period closed on December 15, 2006. In letters dated December 15, 2006, the Independent Community Bankers of America, Independent Bankers of Colorado, Nebraska Independent Community Bankers, Independent Bankers Association of Texas, and Financial Services Roundtable requested the FCA to extend the comment period for at least 90 days because of the breadth and complexity of the proposed rule. On December 19, 2006, the Farm Credit Council filed an opposition to the request for extension of comment period, stating that the proposed rule is of “vital importance to America's farmers and ranchers,” that “ample time” has already been provided to interested parties to review and comment and that any additional comment period should not extend past January 15, 2007. The commenters requesting an extension asserted that the proposed rule will significantly expand the lending authority of FCS institutions to include virtually all commercial enterprises, up to and including WalMart. Such a wide scale expansion of lending authority is not the intent of the proposed rule. Instead, as discussed at length in the preamble to the proposed rule, the intent of the amended rule is to better ensure that FCS institutions are meeting their statutory mandate to provide necessary credit to bona fide farmers and ranchers for their processing and marketing needs in light of changing ownership structures in the modern agricultural economy. In their written comments on the proposed rule, many FCS institutions submitted examples of family farm operations (that already borrow from FCS lenders) that cannot obtain FCS credit for their processing and marketing operations under current FCA rules because of the way ownership of the processing or marketing operation is structured. Because the FCA supports public involvement and participation in its regulatory process, we are reopening the comment period for 45 days and invite and encourage all interested parties to submit constructive and specific suggestions on ways our proposed rule can be improved to better meet our goal of ensuring that all bona fide farmers and ranchers have access to FCS credit for their processing and marketing needs in accordance with the Act. Dated: January 5, 2007. James M. Morris, Acting Secretary, Farm Credit Administration Board. [FR Doc. E7-221 Filed 1-10-07; 8:45 am] BILLING CODE 6705-01-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 71 [Docket No. FAA-2006-26311; Airspace Docket No. 06-AWP-19] RIN 2120-AA66 Proposed Modification of Class D Airspace; Luke Air Force Base, AZ AGENCY: Federal Aviation Administration (FAA), DOT. ACTION: Notice of proposed rulemaking; correction. SUMMARY: This action corrects the legal description in the notice of proposed rulemaking that was published in the **Federal Register** on December 7, 2006, (71 FR 70909), Docket No. FAA-2006-26311; Airspace Docket No. 06-AWP-19. FOR FURTHER INFORMATION CONTACT: Frances Hope, Western Terminal Operations, System Support Specialist, AWP-520.3, Federal Aviation Administration, 15000 Aviation Boulevard, Lawndale, California 90261, telephone

(310)725-6502. SUPPLEMENTARY INFORMATION: History On December 7, 2006, a notice of proposed rulemaking was published in the **Federal Register** (71 FR 70909), Docket No. FAA-2006-26311; Airspace Docket No. 06-AWP-19. This notice proposes to modify Class D airspace at Luke Air Force Base (LUF), AZ. This modification is necessary to contain and protect circling maneuvers for Category E aircraft executing these maneuvers in conjunction with Standard Instrument Approach Procedures (SIAPs) at the airport. The legal description did not correctly describe the proposed airspace modification. This action corrects the legal description. Correction to Notice of Proposed Rulemaking Accordingly, pursuant to the authority delegated to me, the changes as described above are corrected, and the legal description for Luke Air Force Base, AZ, as published in the **Federal Register** on December 7, 2006, (71 FR 70909), and incorporated by reference in 14 CFR 71.1, is corrected as follows: § 71.1 [Corrected] AWP AZ D Phoenix, Luke AFB, AZ [Amended] Phoenix Luke AFB, AZ (Lat. 33°32′06″ N., long. 112°22′59″ W.) That airspace extending upward from the surface to but not including 4,000 feet MSL and within a 5.6-mile radius of Luke AFB from a point intersecting the northwest portion of the Goodyear Class D airspace clockwise to a point intersecting the northern portion of the Glendale Class D airspace; and within a 4.4 mile radius of Luke AFB from the intersection of the southern portion of the Glendale Class D airspace clockwise to the intersection of the Goodyear Class D airspace; and excluding that portion within the Glendale, AZ, and Goodyear, AZ Class D airspace areas. This Class D airspace area is effective during the specific dates and times established in advance by a Notice to Airmen. The effective date and time will thereafter be continually published in the Airport/Facility Directory. Issued in Los Angeles, California, on December 21, 2006. Leonard A. Mobley, Acting Area Director, Western Terminal Operations. [FR Doc. 07-33 Filed 1-10-07; 8:45 am]

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